Judge rules farmers' suit against chemical company can proceed
The Pottstown Mercury (Pennsylvania)
18 January 2003
by Michelle Karas
Mercury staff writer
DOUGLASS -- A federal court judge's ruling this week will allow two farmers who claim a local chemical plant caused deformities in their dairy cows to pursue a trial.
Farmers Wayne and Suzanne Hallowell of Bechtelsville and Merrill and Betty Mest of Schwenksville in August 2001 filed a civil suit in Montgomery County Court against the Cabot Corp. and the Cabot Performance Materials plant on Holly Road, contending the plant emitted toxic amounts of fluoride into the air, poisoning cattle and causing many problems on their Douglass (Mont.) farms.
Boston-based Cabot Corp. and Cabot Performance Materials, a government-licensed manufacturer of chemicals and metal products, attempted to have the case thrown out on the grounds that a statute of limitations had expired.
Judge Cynthia M. Rufe of the U.S. District Court for the Eastern District of Pennsylvania in Philadelphia on Monday denied Cabot's request for summary judgment against the Mests and the Hallowells.
Summary judgment is when a defendant asks a judge to decide a case on the spot, due to a presumed lack of evidence.
"Cabot filed a motion saying (the Mests and the Hallowells) waited too long to file their complaint. They were basically saying (the farmers) should have known sooner," said Michael Davis, one of a team of Norfolk, Va., lawyers representing the farmers. "The judge said there are genuine issues of material fact regarding when the statute of limitations commenced running."
The ruling means the case will proceed in federal court. The Mests and the Hallowells are seeking court costs and attorneys' fees in addition to at least $300,000 in damages from Cabot. No trial date has yet been set.
"We're very pleased with that ruling," Davis said.
A call to Cabot's lawyers, Manko, Gold & Katcher in Bala Cynwyd, was not returned Friday.
Brad Okoniewski, a spokesman for Cabot, was unable to comment on the specifics of the case.
"We still maintain the same position -- that we've been a good neighbor and will continue to be a good neighbor to the Boyertown community," Okoniewski said.
Wayne Hallowell doesn't remember Cabot being such a good neighbor.
"Cabot said that we should have known their chemical company operations were harming our cattle since 1976," he said.
Hallowell's 121-acre Congo Road dairy farm lies about a mile east of the Cabot plant. Mest's farm is about 4 miles east of the plant.
In the lawsuit, the farmers claim pollution from Cabot -- toxic fluoride emissions in particular -- is emitted from smoke stacks and migrates to the farms where it is absorbed by plants that are subsequently eaten by livestock, making them sick.
The farmers contend that Cabot officials knew about the fluoride pollution as early as the late 1970s, and participated in studies of fluoride pollution emanating from the Holly Road facility.
The farmers testified they were unaware it was fluoride pollution that was causing their troubles until an expert diagnosed their animals with fluoride poisoning in December 1999 and January 2000, respectively.
A 1999 EPA report acknowledged high levels of fluoride in Hallowell's well water, but said the elevated levels were not sufficient to cause genetic problems with cattle or pigs.
The final results of the report, released in March 2000, said Cabot was not at fault for the farmers' problems, which could have been caused by poor farming practices.
Since the report, the Hallowells have made plans to sell the farm that has been in their family since the 1950s to developers.
EPA fines Cabot $167,000 for faulty reports
The Pottstown Mercury (Pennsylvania)
Tuesday 15 October 2002
Mercury Staff Report
BOYERTOWN -- Cabot Corp. is facing more than $167,000 in penalties from the U.S. Environmental Protection Agency for violating hazardous chemical reporting requirements.
Officials at the Boston-based company's Cabot Performance Materials Plant at 144 Holly Road failed to immediately notify emergency response agencies about two hazardous chemical leaks in 2000, according to an EPA press release. The EPA also cited the company for operating without a hazardous waste storage permit in 2000.
The EPA is seeking a $151,254 fine from Cabot for failure to immediately report a chemical leak on Feb. 7, 2000. Cabot released 275 pounds of anhydrous ammonia and did not report it to the National Response Center until 34 hours later, and did not notify emergency response officials as is required, the release said.
On March 25, 2000, Cabot allegedly again violated reporting requirements after a leak of 1,239 pounds of hydrofluoric acid. Cabot did not notify the National Response Center or emergency response officials for 4.5 hours, and did not provide the required report promptly to state and local officials, according to the EPA.
The EPA is also seeking a $15,840 fine for violations found during an inspection in May 2000. EPA inspectors found that several employees lacked required hazardous waste training and that two 25-35 gallon drums containing hazardous waste were not properly labeled and had been stored for an unknown amount of time.
Officials at Cabot Performance Materials could not be reached for comment Monday. Cabot has the right to a hearing to contest the alleged violations and proposed penalties.
Cabot Performance Materials manufactures tantalum and niobium metal products used in the electronics, superconductor, aerospace and chemical process industries.
2 Gilbertsville farmers suing chemical company
Wayne Hallowell and Merrill Mest claim toxic emissions from a nearby Cabot plant are ruining their livestock.
By JOSEPH P. FERRY
The Morning Call
September 4, 2001
Although the U.S. Environmental Protection Agency last year blamed poor farming practices for the illnesses that afflicted livestock on his Gilbertsville farm, Wayne Hallowell still thinks otherwise.
In a lawsuit filed recently in Montgomery County Court, Hallowell and another area dairy farmer claim toxic emissions from a nearby chemical plant have slowly poisoned their animals over several years, causing low milk production, abnormal births and sudden, horrible deaths.
Hallowell and Merrill Mest are asking for at least $50,000 on each of six counts against the Cabot Corp. and Cabot Performance Materials, including negligence, interference with business and outrageous conduct, according to the suit.
Neither Hallowell nor Mest could be reached for comment last week. Norristown lawyer Andrew L. Braunfeld, who filed the suit, declined to comment, as did Wilcox and Savage, the Virginia environmental law firm handling the case.
Cabot spokeswoman Janet Howard said company policy is not to comment on matters of litigation.
Hallowell was the unofficial leader of a group of three farmers in the Gilbertsville area who complained to the EPA in 1996 about their suspicions that chemical contamination was wreaking havoc with the livestock. They said poor milk production, lameness, tooth loss, digestive disorders and genetic problems in their cows were being caused by pollution.
One farmer said the problems went back to the 1980s when some calves were born missing tails or necks. Another said he lost more than 1,000 pigs, some of which turned a purplish-red color before rapidly decomposing. Another said strange red streaks were appearing in the soil and causing corn crops to fail.
In December, a two-year study by EPA investigators concluded that faulty farming practices, not widespread environmental contamination, were responsible for the mysterious problems that have affected Hallowell, Mest and other farmers in the Gilbertsville area. The report said there was no evidence to support suspicion that unusually high levels of fluoride found in the farmers' wells and fields were killing animals and stunting crop growth.
But the lawsuit says Cabot routinely emits "various poisons, harmful chemicals and other...toxic substances, including...fluoride." Cabot produces powdered tantalum and niobium, metallic elements used in electronics, military/defense, chemical processing, and the medical, aerospace and energy industries, according to the suit.
Hallowell's 121-acre dairy farm is on Congo Road, about a mile east of the Cabot plant. Mest's farm is about four miles east of the plant, according to the suit.
Cabot's pollution, particularly fluoride, migrates to the farms, where it is absorbed by plants, which are then eaten by the livestock, according to the suit.
The EPA report acknowledged elevated levels of fluoride in well water tested from Hallowell's farm but said the levels were not high enough to cause production or genetic problems with cattle or pigs. The report said the use of herbicide-damaged crops as the principal components of feed could have been responsible for the pig deformities.
Since the EPA report was issued, Hallowell has reached an agreement of sale with a Willow Grove developer to sell the farm that has been in his family since 1950. The Rosen Group wants to build 90 single family homes on the land.
The agreement of sale is contingent on the developer receiving subdivision and land development approvals from Douglass Township.
2 dairy farmers sue chemical plant over fluoride in Montco
Wednesday, September 5, 2001
By Ralph Vigoda
INQUIRER STAFF WRITER
Two Montgomery County farmers who have complained for years that pollution from a nearby chemical plant caused death and disease in their dairy herds have filed suit against the company.
Merrill Mest of Schwenksville and Wayne Hallowell of Gilbertsville say excessively high levels of fluoride released by Cabot Performance Materials in Boyertown were absorbed by vegetation on their farms and subsequently entered the systems of their animals, poisoning them.
The farmers are suing Cabot despite a report last year from the federal Environmental Protection Agency absolving Cabot of blame, suggesting instead that the problems could have been caused by poor farming practices.
In addition, a spokesman for the state Department of Environmental Protection (DEP) praised Cabot yesterday for working toward compliance with state emissions regulations.
But Gary Bryant, an environmental lawyer from Norfolk, Va., who represents the farmers, dismissed the EPA's findings.
"We know that the EPA looked into some of the problems they were having, but we don't believe they did as thorough a job as they needed to do," Bryant said yesterday.
"The experts we've consulted, who have done a thorough investigation, have determined there is no doubt that the problems that Hallowell and Mest have experienced were the result of fluoride poisoning."
The plant uses hydrofluoric acid in its chemical process in the manufacture of electronics components. The process releases a form of fluoride into the air.
Representatives of Cabot could not be reached yesterday. Spokeswoman Janet Howard said recently that the company does not comment on litigation.
Since at least 1993, farmers around Cabot's plant in northwestern Montgomery County have voiced concerns that their animals, which were dying, turned purple and suffered other maladies such as tooth loss, stillbirths, joint problems, weight loss, and poor milk production. Hallowell in particular has been vocal about an unusual number of deaths and deformities in his cows, although the milk produced was found to be safe.
The suit, filed last week, contends that Cabot has for years emitted poisons, including fluoride, into the atmosphere. The pollution, the suit says, "has migrated and continues to migrate" from the plant to the farms. Mest's property is about four miles east of Cabot; Hallowell's is one mile east.
The suit contends that Cabot has emitted "more fluoride than was permitted by the relevant governmental authorities."
The DEP has not cited Cabot over emissions of fluoride. Jim Rebarchak, a DEP air quality expert, said yesterday that Cabot notified the agency of some excessive air levels of fluoride around the plant in the mid-1990s and took corrective measures.
"They have had the occasional violation in the past, and they have cooperated with the department when there have been those problems," he said.
Rebarchak added that no federal rules limit how much fluoride can be released.
The Agency for Toxic Substances and Disease Registry, part of the U.S. Centers for Disease Control and Prevention, says human exposure to excessive amounts of fluoride can cause lung, skin and bone damage.
Hallowell and Mest contend that dairy livestock are particularly susceptible to fluoride poisoning and that Cabot was negligent for not notifying the public that the chemical was being emitted.
Hallowell says he has an agreement of sale with a developer who wants to turn the farm into a housing development.
Ralph Vigoda's e-mail address is firstname.lastname@example.org
Last modified: 1 November 2002