EXPERT REPORT OF STEVEN AMTER

Steven Amter

October 30, 2009

prepared by:

Disposal Safety Incorporated1001 Connecticut Ave. NW, Suite 525

Washington, DC 20036

prepared for:

La Plata County Board of County Commissionersand

Berg Hill Greenleaf & Ruscitti LLP1712 Pear Street

Boulder, CO 80302

Contents

1. Statement of qualifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2. Opinions rendered. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

3. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

4. Operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84.1 Sources of information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94.2 Summary of operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

5. Chlorinated solvents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155.1 Composition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155.2 Knowledge of health effects. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

6. Chemicals used at the Turner Drive plant.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186.1 TCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196.2 TCA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216.3 Acetone and other solvents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

7. Waste handling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237.1 Dumping on the ground. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237.2 Releases within the plant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247.3 Training.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

8. Brown's corporate experience with pollution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298.1 Company overview. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298.2 Technical sophistication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308.3 Regulatory experience.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318.4 Environmental staff.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328.5 Pollution problems at the Denver facility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

9. Knowledge of groundwater pollution by chlorinated solvents and other wastes. . . . . . . . . . . 34

10. Industry guidance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3810.1 Guidance on responsibility for proper care of wastes. . . . . . . . . . . . . . . . . . . . . . . . 3810.2 Guidance on handling of chlorinated solvents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

11. Regulatory Environment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4611.1 Hazardous waste. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4611.2 Colorado water statutes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4711.3 Durango sewage ordinance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

12. Detection of solvents.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

ii

1. Statement of qualifications

My name is Steven Amter. I am a Senior Scientist at Disposal Safety Inc., 1001

Connecticut Avenue, NW, Suite 525, Washington, DC 20036.

I am professionally certified by the Association of Groundwater Scientists and Engineers.

I graduated in 1980 from the State University of New York, where I was named Departmental

Scholar in Geology, with a Bachelor of Science degree in Geology. In 1987 I was awarded a

Masters of Science degree in Hydrology and Water Resources, magna cum laude, from the

University of Arizona, with a concentration in contaminant hydrogeology and unsaturated flow.

Since 1980, I have had experience working for government, under research grants, and in

private consulting. From 1980 through 1983, I was an environmental scientist and

hydrogeologist working for the Environmental Protection Bureau of the New York State Law

Department and worked within a team of scientists and engineers. My work there spanned

several areas. I participated in, designed, and sometimes conducted environmental, soil, and

groundwater monitoring investigations at a variety of sites including Love Canal. This work

usually involved contamination by organic chemicals such as chlorinated solvents, petroleum

fuels, and pesticides. I researched the past operations and waste disposal practices of companies

and negotiated on behalf of the Environmental Protection Bureau with companies conducting

investigations and clean-ups at their sites.

While at the University of Arizona from 1985 through 1987, I conducted research on a

new method of sampling contaminated soil water from the unsaturated zone under a grant

provided to the Hydrology Department from the U.S. Nuclear Regulatory Commission—this

became my thesis topic. In this I developed a detailed understanding of how water and chemicals

were moving through the soil zone into samplers at two sites. At an Agricultural Extension field,

I ran field tests, collected soil and soil-water samples, and tested the physical and chemical

characteristics of the samples in the laboratory. At another site with a thick unsaturated zone, I

collected soil-water samples and analyzed them for chlorinated solvent chemicals. I also

constructed a detailed computer simulation of how soil water was influenced by, and moved into,

the samplers.

In 1986, I also worked part time as a hydrogeologist for a local consulting company. All

of this work was in Arizona and California at large companies that had contaminated the

groundwater with chlorinated solvents and other chemicals. My work at these sites involved

constructing monitoring well networks, collecting groundwater samples contaminated with

chemicals, and testing the properties of the aquifer.

1

From 1987 to the present, I have worked at Disposal Safety Incorporated, in Washington,

DC, where I am a principal in the firm. Disposal Safety specializes in evaluating past, current,

and potential contamination of ground and soil contamination by hazardous chemical and

radioactive wastes. In addition to its strictly scientific work, the company also conducts research

into what was known in the past about the dangers of groundwater, soil, and soil-gas

contamination. In this work, I have analyzed and reviewed hundreds of sites contaminated by

chemical and radioactive wastes, including chlorinated solvents, PCBs, and various pesticides.

The sites have included chemical and pesticide plants, lead, steel, zinc, and tungsten smelters,

manufacturers of various types, refineries, gas stations, pipelines, and other petroleum facilities,

landfills, waste dumps, treatment and storage lagoons, injection wells, and incinerators.

While at Disposal Safety I have conducted in-depth evaluations of more than a dozen

Superfund (NPL) investigations and remediations. I have also developed groundwater flow

models for specific sites and a new numerical code for subsurface radioactive gas flow at the

proposed nuclear repository below Yucca Mountain. I have designed systems to monitor and

sample groundwater and air at sites including a municipal landfill in New York State and a

school adjacent to a Superfund site on Long Island, NY. Part of my work has involved serving as

Technical Advisor at federal Superfund and RCRA investigations and clean-ups, where I often

worked in close contact with the affected community, federal, state, and local regulators, and

company consultants. I was hired by the U.S. Department of Justice to analyze, coordinate, and

negotiate the technical aspects of environmental cases against the Borden Chemical Company

and the electronic and circuit board manufacturer Sparton Technologies. At issue in both cases

was how organic chemicals, including chlorinated solvents, moved through the groundwater and

soil zones.

Among my areas of research are the study of soil and groundwater contamination caused

by chlorinated hydrocarbons, a family of chemicals that includes trichloroethylene (TCE),

trichloroethane (TCA) and other common chlorinated solvents and pesticides, and the past

knowledge, practices, and standards in connection with the use and disposal of such chemicals.

This includes analyses of how companies have responded to the challenges posed by the need to

manage the wastes they generate. I have published peer-reviewed journal articles on these

subjects that focus on the history and past knowledge of groundwater contamination, particularly

by chlorinated solvent chemicals. My resume is attached as Exhibit A.

Since 1993, I have also worked as an expert witness. A list of case where I have testified

attached as Exhibit B. I have testified in court in six cases in both federal and state courts located

in California, Colorado, Hawaii, Indiana, Rhode Island, and West Virginia and have offered

deposition testimony in eight other cases. The topics of analysis and testimony include:

hydrogeology and the movement of contaminants through soil, groundwater, and soil gas;

chlorinated solvents, PCBs, pesticides, petroleum products, and perchlorate; past knowledge of

2

groundwater contamination and waste disposal practices; and the standard of care with respect to

waste management to prevent environmental contamination in the chemical, petroleum,

aerospace, fabrication, and smelting industries.

I have offered opinions on the history of pollution and standard of care in preventing or

responding to environmental pollution, either exclusively or in tandem with opinions on

contamination at a specific site, in twelve of these cases. Four relate to my work in this case

more directly than the others because they involved court testimony concerning volatile

chlorinated solvents.

I testified in 2003 before the United States District Court for the State of Hawaii in Akee

v. Dow Chemical Company et al. on the standard of care and the state of past knowledge

concerning contamination of public water supply wells by pineapple fumigants. I also testified

on the hydrogeology of the island of Oahu, the mechanisms by which agricultural fumigants

entered the subsurface, and the movement of the groundwater.

I testified in 2005 before the Superior Court of California in Adams/Allen et al. v. Aerojet

et al. on the standard of care and the past state of knowledge concerning contamination of public

water supply wells by chlorinated solvents.

I testified in 2002 before the United States District Court of Denver, Colorado in

Antolovich v. Brown Group Retail et al. on the standard of care and the past state of knowledge

concerning groundwater contamination and the movement of chlorinated solvent vapors through

the subsurface.

I testified in 1993 before the Newton Circuit Court of the State of Indiana in James A.

Martin et al. v. Amoco Oil Company on soil, groundwater, and indoor air contamination by

petroleum chemicals and chlorinated solvents. I also testified on the standard of care and the

past state of knowledge.

2. Opinions rendered

I have been retained by counsel to provide opinions, based on a reasonable degree of

certainty, on the past state of knowledge and waste disposal standards pertaining to TCE, TCA,

and related solvents and chemicals, particularly with respect to the potential for disposal of these

chemicals to contaminate groundwater, both generally and specifically at the former Redfield

plant located on Turner Drive in Durango, Colorado.

In formulating my opinions and preparing my report, I have relied on the following:

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• My personal knowledge, training, and experience in the areas of hydrogeology,groundwater chemistry, environmental and regulatory history, industrial practices ofwaste generation and waste management, and the history of subsurface contamination bychlorinated hydrocarbon chemicals.

• The scientific, historical, and industrial literature and sources of general information citedin this report.

• Documents pertaining to the former Redfield Turner Drive site, now the La Plata CountyDetention Center, including documents obtained from Brown, affidavits and depositionsof former employees, correspondence with regulatory authorities, and documents from LaPlata County, including its investigation of the site.

• Documents pertaining to the former Brown Denver site, including all reports I wrote anddocuments I reviewed through my involvement in Antolovich et al. v. Brown Group et al.

Testimony and documents establish that the Brown Group, its predecessor Outdoor

Sports Industries (OSI), and Plummer Precision Optics (Plummer) did not take care to manage its

solvent wastes at its Redfield Optics facility, on Turner Drive in Durango, in a manner that kept

them from entering into the ground and groundwater. These companies' operations generated

large amounts of waste, but except for a single instance of recycling, there is no known record of

an effort to dispose of those wastes in an environmentally safe way. Employees were not trained

or instructed to handle solvents and solvent wastes so as to prevent groundwater contamination.

The toxicity of chlorinated solvents was well known, as was the fact that a free-flowing liquid

could soak into the ground and migrate to the water table. Yet OSI, Brown, and Plummer

engaged in several practices — whose relative quantitative importance remains unclear — that

released solvents into the ground. These practices included dumping liquid wastes onto the

ground and disposing wastes into drains that connected to a leaky pipe system. Brown's and

OSI's lack of effort to properly control and dispose of their solvent wastes was a violation of the

standard of care.

The following summarizes my other principal opinions. Supporting opinions and

analysis are given in following sections.

1) As large, diversified, and technically advanced companies with divisions in several states,Brown and OSI were both well positioned to understand available technical and industrialguidance and evaluate the potential for its waste handling and disposal practices to resultin groundwater contamination.

2) Based on the knowledge and guidance available to them at the time, Brown and OSIknew, or should have known, that damage to the soil and groundwater would result fromthe entry of chlorinated solvent wastes into the ground at the site.

3) The general mechanisms by which groundwater becomes contaminated with industrialwastes in general, and specifically with persistent organic and inorganic chemicals, havebeen described in technical literature since at least the 1940s. The dangers posed by

4

disposal of liquid industrial wastes onto and into the ground have also been known sincethat time.

4) Knowledge of the toxic properties and systemic health effects of chlorinated solvents,including death, chronic diseases, and cancer, dates back more than 60 years.

5) Groundwater contamination by chemicals used in the types of chemically intensivemanufacturing operations that Brown and OSI conducted at its various plants, includingmetal and plastic fabrication, tanning, machining, parts treatment and cleaning,degreasing, and plating, was recognized early and publicized widely.

6) Reports of groundwater contamination by industrial releases of chlorinated solvents dateback to the late 1940s.

7) Since at least the 1940s, various trade groups involved with chemical, manufacturing and

degreasing operations have published guidance for users of chlorinated solvents designedto minimize pollution of water resources.

8) Guidance available since 1949 directed generators of chlorinated solvent wastes toconsider local conditions and site-specific circumstances before choosing among disposaloptions. Although some guidance recommended placing solvent wastes on the ground forthe purpose of evaporating it into the atmosphere, this was only to be done under limitedcircumstances that promoted evaporation and reduced the risk to groundwater resources.

9) The guidance became more stringent in the 1970s. Dumping on the ground, except undernarrowly prescribed conditions that were intended to prevent groundwater contamination,was strongly discouraged. Failing to take adequate precautionary steps in the mid 1970sand early 1980s violated the standard of care.

10) Because they are dangerous chemicals, guidance for TCE since the 1940s and for TCAsince the 1960s specified that companies that used these chemicals had an obligation toinstruct employees in their proper handling. Failure to provide such training was aviolation of the standard of care.

11) After November, 1980, regulations promulgated under the federal Resource Conservationand Recovery Act prohibited unpermitted disposal of specified hazardous wastes such asspent solvents and solvent waste from degreasing operations. After this date, allowingany RCRA-specified hazardous wastes to enter the ground, by direct dumping or othermeans, at an unpermitted facility was a violation of the standard of care.

12) Under Colorado State statutes dating back to 1966, the Turner Drive plant in Durangohad an obligation not to contaminate groundwater. An April 9, 1982, Durango ordinanceprohibited the discharge of toxic chemicals into the city's sewage treatment system if theycould interfere with sewage treatment processes, constitute a hazard to humans, or createa hazard or nuisance in the system's receiving waters.

13) Chlorinated solvents were known since the 1960s to interfere with sewage treatmentprocesses.

14) In the 1970s and 1980s, Brown and OSI used chlorinated solvents such as TCE and TCAwidely in many of their divisions and operations. TCE, TCA, and many other solventswere used at Brown's and OSI's Redfield-Denver facility, where they heavily

5

contaminated the groundwater by failing to control leakage from degreasing units,dumping solvent wastes onto the ground, and otherwise mismanaging wastes.

15) The events in Denver show that Brown lacked an effective system of supervising itsplants to ensure environmentally responsible behavior.

16) Documents from 1978 and 1979 prove that the Turner Drive Plant used several solventsfor degreasing, in substantial quantities, including TCA, methylene chloride, Freon 113,acetone, and methyl ethyl ketone. Former employees also specifically remember usingTCE at this plant. Solvent use at the Turner Drive plant was similar to the Denveroperation: solvents were used for hand wiping, parts soaking, vapor degreasing, and forgeneral degreasing and cleaning operations.

17) There were four degreasing machines at the Turner Drive plant which used chlorinatedsolvents. Employees recall that at the Main Street plant, TCE was used as degreasingsolvent. At the Turner Drive plant, evidence suggests that TCE was used initially, butmay have been phased out and replaced by TCA. One degreasing machine used amixture of methylene chloride and Freon 113.

18) 1,4-Dioxane was widely used as a stabilizer for 1,1,1-trichloroethane (TCA). It was usedin all the formulations that Dow Chemical marketed since the 1960s. The Turner Driveplant used Dow's Chlorothene VG brand of TCA, which contained at least 2% (20,000ppm) dioxane.

19) The evaporation rates of pure TCE and TCA are several times faster than water. Theevaporation rates of pure TCE and TCA are decreased when dissolved in less volatileliquids such as oils, or even water, in rough proportion to the percentage of solvent in themixture. The evaporation rates of spent degreaser solvents and degreaser still bottoms aresubstantially less then the pure solvents.

20) Given conditions in the Turner Drive plant, it is probable that TCE and TCA spilled ordripped onto the floor did not always fully evaporate and cleaning operations directedthem into the plant's sewage system.

21) The plant's sewer pipes leaked. TCE and TCA that entered this system escaped throughthe leaks and found its way into the ground beneath the plant.

The opinions contained in this report are based on the information available to me at this

time, including the documents referenced here, case documents, expert reports and depositions,

and documents in my files. They may be supplemented based on additional research and as more

information becomes available. The references in this report illustrate the types of information

available to support my opinions, but are not an exhaustive listing.

3. Background

The site at issue in this case is the La Plata County Detention Center, located at 432

Turner Drive in the Bode industrial park south of Durango. The facility was originally

6

constructed as a factory to make lenses for use in Redfield brand rifle and spotting scopes, a

brand that has been owned by a succession of companies since the 1960s. In 1983, the facility

was sold to La Plata County and rebuilt as a jail. Jail construction began in 1983 and was

initially completed in 1985; further additions and modifications were made in subsequent years.

The primary defendant in this case is Brown Group Retail, Inc., a large, multi-national

seller of shoes, footwear, and other products. While the company no longer operates domestic

manufacturing facilities, it operated many in the past. In 1979, the Brown Group purchased1

Outdoor Sports Industries, Inc. (OSI), which included the Redfield Gun Sight Co. (Redfield) with

plants in Denver and Durango. OSI was a medium large company with four manufacturing

divisions located in seven states. The Denver site had been used since 1967 for the production2

of rifle and spotting scopes, sights, mounts, and non-shooting optics. The manufacturing

processes at Denver included the cutting, machining, and fabrication of steel, aluminum, and

brass. Parts were degreased at various points during the manufacturing process by immersing

them into tanks containing liquid chlorinated solvents such as TCE. At some point after

approximately 1968, the Denver facility also began to use TCA made by Dow under the trade

name Chlorothene VG.

John Hill Redfield founded Redfield Gun Sight Company in Denver in 1909. In 1956,3

Ed Hillard, a noted conservationist and mountaineer, became a partner and principal, and later

president, of the company. He was killed in 1970 in a climbing accident while ascending North

Maroon Bell Peak. In 1971, the company was bought by Outdoor Sports Industries Incorporated

(OSI). In 1974, OSI expanded operations and began manufacturing lenses for its Redfield4

Optics brand in a leased space on Main Street, Durango. In January, 1976, it discontinued

operations at Main Street and opened a newly constructed facility, south of the city, on Turner

Drive in Bodo Industrial Park. This was a new development in an area of undeveloped land at

the foot of the mountains ; the Redfield plant was the first large commercial facility in the area. 5

All, or almost all, of the lenses made in Durango were shipped to Denver. For a short period of

time, the Durango operation also assembled complete scopes, assembling factory seconds from

parts made in Denver that had minor defects. In July, 1979, Outdoor Sports was in turn acquired

by the Brown Group, one of the nation's largest manufacturers of shoes and other consumer

The Brown Group, Securities and Exchange Commission Form 10-K, 1998.1

Outdoor Sports Industries Quarterly Report, March 1, 1978 [BGD1832].2

BGD2241.3

BGD2241.4

BGD3949.5

7

products . On September 25, 1979, Brown sold the Durango operations, including most of the6

equipment and all of the lens stock and inventory, and leased the property to Plummer Precision

Optics company ("Plummer"). However, under the terms of the sales contract, the Denver

facility continued to buy most of the Durango plant's production until October, 1982, after which7

Brown purchased its lenses from foreign suppliers. Plummer immediately ceased operations at

the Durango facility and Brown sold the property to the Board of County Commissioners in

March, 1983. La Plata County acquired the property and built the Detention Center in the8

existing building. In 1984, a group of former managers bought the remaining Denver Redfield

operation and renamed it Redfield Rifle Scope, Inc.; Brown retained ownership of the real estate.

Operations in Durango, which began in 1974, produced the lenses that were incorporated

into the scopes manufactured and assembled in Denver.

This tangled history of owners, operators, and uses of the site that is the focus of this

report necessitates that I refer to it by different names. I will sometimes refer to it as the Durango

site, plant, or facility when more specificity is not needed. To distinguish it from the (earlier)

Main Street site, I will call it the Turner Drive site, plant, or facility. Depending on the topic

addressed, I may use the name of the relevant owners or operators of the plant, for example, "the

Redfield Turner Drive site."

4. Operations

Operations at the Turner Drive plant included grinding and polishing glass blanks into

lenses of various shapes and sizes, assembling compound lens, lens coating, and machining metal

tools and parts for use in the manufacturing process. Several chemicals and materials were used

in significant quantities. These included solvents for degreasing and cleaning; oils and other

chemicals for lubrication and abrasion during grinding and polishing; and paints, glues,

adhesives, and sealants. Multiple solvents were used at the plant for cleaning and degreasing:

Dow's Chlorothene VG degreaser, which contained 1,1,1-trichloroethane as a main ingredient

and 1,4-dioxane as a primary stabilizer; DuPont's degreaser solvent Freon TMC, an

BGD2241.6

BGD2245; BGD2251.7

LPC000008.8

8

approximately 50-50 mix of methylene chloride and Freon 113 ; and non-chlorinated solvents9

such as acetone (dimethyl ketone), methyl ethyl ketone, and methanol.

4.1 Sources of information

The discovery process has not yielded documents which give a detailed description of

operations at the Turner Drive facility relating to degreasing and management of solvent wastes.

Much of what is presently known about the operations is derived from a small number of

historical documents and from descriptions given by former plant workers. Their knowledge of

operations is documented in interviews, affidavits, and depositions. Given that they worked at

the site thirty or more years ago, it is not surprising that they often have difficulty recalling all

relevant details and that sometimes their recollections lack perfect agreement. Many of these

differences are the result of their having worked for different lengths of time, over different

years, and in different parts of a fairly complex and compartmentalized operation. Also, none of

the employees located to date were the individuals most intimately involved with servicing the

degreasing machines and managing the solvents and solvent wastes at the facility.

Despite these potential limitations, a coherent picture of operations within the plant can

be assembled. Information from the following former employees, listed in order of when they10,11

started working at the Durango operations, was reviewed:

• Danny Conway, who worked at both locations for the entire timespan of operations. Heworked most operations, except centering. Eventually he became a productionsupervisor. Conway recalls that TCE was used at the Main Street plant.

• Stella Silva, who worked in both plants starting 1974 or 1975; she is unsure what year sheleft. She began as a lens cleaner in the dark room, then became a lens inspector. Sheremembers dumping containers of waste acetone and possibly other chemicals behind theplant; she believes that drums of chemicals also may have been dumped when wastedrums were full.

Methylene chloride is the common name for dichloromethane and Freon 113 is the brand name for9

1,1,2-trichloro-1,2,2-trifluoroethane.

Depositions, with exhibits, of: Stella Silva, taken May 4, 2008; Maggie Stratton, taken May 4, 2008,10

Anthony Archuleta, taken July 30, 2009; Ray Jaramillo, taken July 31, 2009; Dan Conway, taken August24, 2009; John Chavez, and taken September 1, 2009; Perry Barnes, taken October 27, 2009; The Boardof County Commissioners of the County of La Plata, Colorado v. Brown Group Retail, Inc., et al. Theexhibits included hand-drawn schematics of the plant operations and layout, affidavits based oninterviews previously given by the employees, and other documents.

My information from Gloria Sanchez is based on our phone conversation of October 6, 2009. My11

information from Perry Barnes is partially based on our phone conversation of October 14, 20009. Sanchez has not yet been deposed.

9

• Perry Barnes, who worked at both locations as a polisher and a lens reworker for theentire timespan of operations. He remembers using a chemical, which he identified in hisdeposition as trichloroethylene or tetrachlorethylene [sic] to remove paint coatings onlenses that was the same one used in degreasing machines. He recalls that he was told todump two or three barrels of the chemical on the ground east of the Turner Drivebuilding.

• Maggie Stratton, who worked at both plants from 1974 through 1977. She worked as apolisher for approximately one year, then as an inspector. She remembers emptyingbowls of acetone, possibly into a floor drain.

• Anthony Archuleta, who worked from early 1976 until some time in 1978. He started12

off in the polishing area, then moved to centering where he worked as a "set up man." Heremembers a degreasing machine in the centering room that dripped TCE onto an oilyfloor.

• John Chavez, who worked from early 1976 to the summer of 1978. He got the jobthrough Archuleta, and recalls that Jaramillo was laid off a few months before he was. He worked as a grinder for a few months, then moved to inventory.

• Ray Jaramillo, who worked from mid 1976 to the spring of 1978. He got the job throughArchuleta and Chavez. He spent less than a week as a blocker in the polishing area,worked in the centering room for approximately 1.5 years, and then moved to scopeassembly, which he eventually managed. He specifically remembers at least threedegreasing machines at the Turner Drive plant.

• Gloria Sanchez, who worked as polisher from 1977 to 1979. She remembers emptyingslurry tanks to the floor drains.

4.2 Summary of operations

The following is a brief summary of operations, concentrating on those which involved

chlorinated solvents and waste handling. It is based on my review of the descriptions provided

by former employees and other currently available information. When my summary relies on

specific sections from an individual's deposition, I sometimes give the name and page range in

parentheses. I may supplement or modify this summary as new information becomes available.

The majority of work performed at the Turner Drive plant was producing the lenses for

the rifle and spotting scopes assembled in the Denver Plant. In general, this involved shaping

and polishing preformed glass blanks (purchased from an outside supplier) into single and

compound lenses of various shapes, sizes, and optical specifications. The operations used large

quantities of chlorinated solvents and other organic solvents. Throughout the manufacturing

process it was essential to dissolve or remove blocking compounds, cutting oil, paint, polishing

Anthony Archuleta W-2 forms from Outdoor Sports Industries, Inc. for 1976 through 1978.12

10

compounds, dirt, grease, and fingerprints from lenses and other items. This in turn necessitated

that they undergo repeated cleaning in vapor degreasing machines.

Vapor degreasing is a physical method of removing solvent-soluble materials and

entrapped dirt from metal, glass, and other non-porous objects. A vapor degreasing machine

contains a vessel with a heated sump where liquid solvent, usually a chlorinated solvent, is boiled

to produce vapors. By bringing items at room temperature in contact with the hot vapor, enough

liquid solvent condenses on them to create streams of solvent that carry soluble and insoluble dirt

away by gravity. When the a material to be cleaned contains a lot of partially soluble or in

soluble material, such as grinding debris and polishing compounds, it is recommended to use a

vapor degreasing machine equipped with a liquid spray system.13

According to accounting and inventory records associated with the purchase of OSI, as of

mid 1979 there were at least four degreasing machines at the Turner Drive facility. The first14

one was purchased in 1976 and was made by Baron-Blakeslee. Two used degreasing units were

purchased in 1978; these were both Lenape model VS-DC-E vapor degreasers with spray wands,

electric heating (of the solvent) and direct cooling to contain vapors within the vessel. One of the

Lenape units was equipped with a solvent distillation unit. The fourth unit was a Corpane15

ultrasonic vapor degreaser.

The Turner Drive facility was a single building that housed several operations. Although

there appear to have been some changes over time, for the most part operations stayed fairly

consistent over the life of the plant. Nearly all the manufacturing sections operated two eight-

hour shifts per day, five days per week. Maintenance workers may have done some of their work

after regular hours and on weekends.

American Society for Testing and Materials, Handbook of Vapor Degreasing, ASTM Special13

Technical Publication 310A, 1976.

Brown and OSI assembled a complete inventory of all assets at Turner Drive. Documents that list14

degreasing machines include inventory sheets entitled: "Durango Capital Equipment 5/18/79"[BGD1442-54]; "Account 1621 Machinery & Equipment Durango" [BGD1521]; "A/C 1621 - Mach -Durango" [BGD1502]; and "Redfield Division Dept. 433 Fixed Assets Inventory and DepreciationCalculation for Machinery & Equipment 1621 Purchases in 1979" [BGD1527].

Lenape went out of business more than a decade ago. My interpretation of the model code stems15

from conversations with Mark Skiersch, a principal at Reliance Specialty Products, Elk Grove Village, Ilon September 22 and October 16, 2009. Reliance both manufactures new vapor degreasers andreconditions used ones for resale.

11

Documents and information from former employees indicate that the plant was divided16

into several different areas and rooms which roughly corresponded to departments in which

different operations were carried out. Most manufacturing operations were carried out in the

southern half of the building, while administrative, managerial, storage, packaging, and shipping

operations were housed in the northern half. An exception to this was the machine shop, which

in 1977 was moved to the northeast corner to facilitate the creation of a scope assembly room in

the southwest corner of the building.

The polishing floor (Departments 433 and 434 on the inventory) in the south and

southeastern portions of the building comprised the largest part of the facility. Operations here

included a main grinding and polishing area (433) and a smaller second one (434). There were

also one or more areas devoted to blocking and deblocking. Blocking consisted of firmly

mounting lens blanks on specially shaped tools, using a pad of molten pitch that was allowed to17

cool and harden, to facilitate grinding and polishing. Blocking tools can be made of various

materials; Redfield appears to have used aluminum and possibly iron.

There were rows of grinders and polishers that successively shaped and polished the glass

blanks into precise optical components. The 1979 inventory lists more than fifty such machines.

Rough shaping of the blanks was done by various types of grinders. A constant stream of coolant

prevented overheating and damage to the lenses and grinding wheels. There were several types18

of grinding machines, including grinders equipped with diamond wheels ("generators") and ones

equipped with curved plates studded with diamond pellets ("pel grinders"). Once the lens or

block of lenses was ground to roughly the right curvature, it was polished.

The polishing machines consisted of raised, tank-like, basins that contained one or more

polishing stations. Each station combined a rotating spindle upon which a block containing a

lens or lenses was mounted, a continuous stream of water-based abrasive slurry, and a cap-like

polishing head that matched the desired curvature of the lenses. Each basin contained and

recirculated the slurry, which was drawn from a sump or tank located under the machine's

working basin. Employees recall that the slurry needed to be changed regularly and often

(Sanchez, personal communication).

BGD1442-54, referenced above.16

Wax may also have been sometimes used.17

Conway recalled that ethylene glycol (a dialcohol) might have been used as the coolant at some18

point. Jaramillo recalled that there was a change to ethylene glycol in some machines. Archuleta onlyrecalls an oil-based coolant. We can be sure that oil continued to be used in at least some of the grindersbecause the waste report filed by Plummer specifically mentions oil as a component of the spent TCAwaste. [LPC000001-7]

12

After one side of the lens had been ground and polished to the right shape and

smoothness, the entire process had to be repeated on the other side. This necessitated first

softening the pitch with heat, separating the lenses from the blocks (deblocking), and then

removing residual pitch and abrasives from all components by immersion in a degreasing

machine containing chlorinated solvents. Once clean, the polished side of the lens would be

painted to prevent scratching when the other side was being worked. After the second side was

finished, the lenses were separated from the blocks and put back into the degreasing machine.

The evidence is that there was always at least one vapor degreasing machine in the

polishing area at the Turner Drive plant. Conway recalled that initially there was a large vapor

degreasing machine adjacent to the deblocking area, towards the center of the polish floor.

Jaramillo, who started in 1976 some time after the plant opened, also recalls a degreasing unit

located near the center of the polishing floor, and also possibly a second one somewhere else in

the area. As of 1979, the inventory records discussed above list two degreasing machines in

polishing, the Baron-Blakeslee unit purchased in 1976, and one of the Lenape units purchased in

1978. Jaramillo's description appears to match the latter. He described how a basket of lenses

would be placed within the vessel on a wire shelf so that it could be sprayed with liquid solvent.

He recalled that the degreasing machine was used constantly; each person in the polishing room

might use it multiple times per shift (Jaramillo, p. 80.)

The dark room (Department 435) occupied a space in the east central portion of the

building, north of and parallel to the polishing area. It was equipped with a number of small

booths with dark interiors in which lenses were cleaned and inspected at different points during

the grinding, polishing, and centering process to ensure that they were free of defects and

matched optical and quality specifications. Some lenses that failed inspection were reworked.

Before each inspection, lenses were cleaned. The solvent acetone was used for this purpose.

When grinding, polishing, and centering steps were complete, the lenses were sent back to the

dark room for additional treatments, such as gluing to make compound lenses, and coating.

The centering room (Department 436) was near the center of the building, north of the

polishing floor. In the centering room the edges of polished lenses were ground down to align

their optical and mechanical axes and obtain the desired final shape and size. This was done by

machines equipped with diamond grinding wheels. A continuous spray of oil (or ethylene

glycol) cooled the wheels. Overspray from the grinders created a mist that coated the room,

particularly the floors. After centering, grit and coolant was removed by cleaning the lenses in a

degreasing machine.

Employees recall that at some point the centering room acquired its own degreasing

machine, located near the east end of the north wall, adjacent to an entrance to the warehouse.

Different employees have slightly different recollections of when it arrived. Archuleta thinks

13

that it was always there; that is, the plant's first unit was in the centering room (Archuleta, pp. 45,

154). Jaramillo, who started working in the centering room as much as a year after Archuleta,

recalls a degreasing machine at the same location, that arrived approximately a month after he

started working there. Despite the inconsistencies about timing, the descriptions of the

degreasing unit closely agree. Archuleta remembers that it measured approximately 3 feet

square and 4.5 feet high, was equipped with a sprayer wand, and had steps leading up to a small

platform. From the bottom up, the degreaser vessel contained approximately two feet of hot

liquid solvent, two feet of solvent vapor, and freeboard to the machines lip (Archuleta, pp. 56,

106, 175-6). Each person in the centering room would use the degreaser many times per shift

(Jaramillo, p. 63).

From 1977 to approximately 1979, Redfield ran a scope assembly room (Department

453) in the southwest corner of the building. Factory second scopes were constructed using

rejected parts from the Denver plant. This room used a vapor degreaser that, according to

Jaramillo, was different from any of the other degreasers (Jaramillo, 71; 166-7). It was

completely enclosed, with a mechanized basket, and it cleaned with vapor alone because this

department required a higher degree of cleaning than in other operations (Jaramillo, 153-56). His

description matches the inventory sheet listing an ultrasonic vapor degreaser that was purchased

used from Corning. Purchase records show that in mid-1979, the Turner Drive plant received19

four drums of Freon TMC, a low boiling chlorinated solvent made for this type of application

and equipment. 20

A machine shop (Department 583) was originally located in the southwest portion of the

building. It was later moved into the warehouse area (northern part of building) to allow a scope

assembly room to be set up. The machine shop fabricated the blocks that held the lenses during

grinding and polishing steps. Blocks could be made to hold single or multiple lenses.

Knowledge of maintenance operations is currently lacking. Although the employees

interviewed to date recall that there was a maintenance crew that, among other tasks, serviced the

degreasing units and managed the plant's waste, apparently much of their work was done outside

A Corpane ultrasonic degreaser [BGD1453]. Ultrasonic degreasers have added cleaning power.19

Van Waters & Rogers, Invoices 33-05-01500 34-07-00288, dated May 18, and July 10, 197920

[BGD0128 and [BGD0141-4]. Freon TMC is an azeotropic blend of 1,1,2-trichloro 1,2,2-trifluoroethane(Freon 113) and dichloromethane (methylene chloride). (An azeotropic blend is mixed fluid for whichthe composition, boiling point, and vapor pressure stays constant as the fluid evaporates or condenses.) Because Freon TMC is so volatile (it boils at 97 deg. F) [Miller Stephenson Chemical Company, MSDSMS-192 Freon TMC Solvent, January 1, 1986], little heat is needed to vaporize it.

14

of the normal work shifts. Thus, the operations employees who were interviewed never saw the

degreaser units serviced. No records of maintenance work have been provided by Brown. 21

On the east side of the Turner Drive building there was a loading dock which handled

shipments of chemicals and wastes to and from the plant. Employees report that this was where

unopened, partially full, waste-containing, and empty drums were stored. Portable pumps were

used to transfer liquid chemicals among containers. Sometimes, drums of spent coolant were

placed in the loading dock area to allow grinding debris to settle out so that it could be reused.

5. Chlorinated solvents

The chemicals that have been identified as primary groundwater contaminants at the La

Plata County Detention Center include the degreasing solvent constituents TCE, TCA, and 1,4-

dioxane. The latter two are the primary ingredient and a stabilizer in Chlorothene-VG.

Chlorinated solvents are artificial chemicals designed by chemists and chemical

engineers. Chlorinated solvent formulations are designed and engineered for specific types of

uses; for example, as solvents for vapor degreasing. A high degree of knowledge about solvent

properties and how they interacted in different chemical and physical environments was a

necessary part of the design, production, and commercial applications process, and this

knowledge increased over time. Industrial users of chlorinated solvents were expected to be

generally familiar with the range of shared characteristics because it was the basis upon which

they chose which particular solvents would best fit their operations; this was also the way solvent

manufacturers presented their product lines. Many, if not most, companies used more than one

solvent in their operations.

5.1 Composition

The use of chlorinated solvents grew rapidly during the 1950 and 1960s due to their

favorable characteristics for manufacturing and aggressive marketing by chemical companies.

The benefits of chlorinated solvents included low flammability and reactivity, compared to

Vapor degreasers require constant maintenance. Filters, and gaskets have to be changed;21

accumulated water has to be removed; solvent has to be replenished; spent solvent has to be removed andreplaced; accumulated sludge and scale has to be removed; mechanical parts such as pumps and heatingand cooling coils may break and require repair or replacement. E.V.D. Wallace, Care of hot and solventdegreasers, Metal Cleaning and Finishing, pp. 634-40, 1938; S. Trezac, Degreaser maintenance: solventconservation, Industrial Finishing, pp. 44-56, 1946; C.E. Kircher, Solvent degreasing — What every usershould know, ASTM Bulletin, pp. 44-9, 1957; ASTM, 1976, referenced above; ASTM, 1979, referencedabove, pp. 3-4.

15

petroleum based solvents, and the ability to work well on a wide variety of organic materials. 22

During the 1960s and 1970s, manufacturers used chlorinated solvents, including TCE, PCE, and

TCA, as general purpose cleaners, degreasers, thinners, and strippers. These chemicals were

used both in production and to clean and service plant machinery.

A factor in this development was improved stability of chlorinated solvents during

storage and use due to better stabilizers. Chlorinated solvent formulations used in most

commercial applications are not pure chemical compounds, but contain substantial amounts of

additives to enhance their convenience, performance, and safety. Stabilizer packages often

consisted of metal inhibitors, to prevent reactions between the solvent and metals; acid acceptors,

to prevent the formation of hydrochloric and other acids; and antioxidants, to prevent reactions

with atmospheric oxygen.23

Manufacturers of chlorinated solvents marketed different solvents and formulations for

different categories of use. For TCA to be stable enough to be shipped in ordinary metal drums

and used as a degreaser for reactive metals, particularly aluminum, it had to be stabilized. The

most widely used stabilizer for TCA formulations was 1,4-dioxane, a cyclic diether whose use in

TCA was first patented by the Dow Chemical Company in 1957. TCA formulations generally24

contained 2 to 4% (20,000 to 40,000 ppm), and sometimes substantially more. By 1985, 90% of

the dioxane produced in the U.S. was used as a stabilizer. Dow Chemical specifically25

confirmed that since it began production in 1968, Chlorothene VG has always contained

dioxane. Its presence in Chlorothene VG was discussed in a patent application filed by26

Motorola, Inc. in 1976. Dioxane has been classified as a probable human carcinogen by the27

R.E. Doherty, A history of the production and use of carbon tetrachloride, tetrachloroethylene,22

trichloroethylene and 1,1,1-trichloroethane in the United States: Part 1—historical background; carbontetrachloride and tetrachloroethylene; A history of the production and use of carbon tetrachloride,tetrachloroethylene, trichloroethylene and 1,1,1-trichloroethane in the United States: Part2—trichloroethylene and 1,1,1-trichloroethane, both in Environmental Forensics, vol. 1, pp. 69-81 and83-93 respectively, 2000[a and b].

R.E. Doherty, 2000b, cited earlier; Mohr, T., Solvent stabilizers white paper, June 14, 2001.23

United States Patent Office, Patent 2,811,252, Methyl chloroform inhibited with dioxane, October24

29, 1957.

USEPA, 1,4-dioxane fact sheet, February, 1995; Doherty (b), pp. 89-90; Mohr, p. 3, referenced25

above.

Email from Andrew Larson, Dow Basic Chemicals Technical Service, to Leslie Jakoby, La Plata26

County Environmental Specialist, March 9, 2009.

U.S. Patent 4,047,820, Stabilization of 1,1,1-trichloroethane, filed June 7, 1976.27

16

USEPA and the ATSDR. Although dioxane has many other uses, it is usually found only in28

trace amounts in most consumer products.29

5.2 Knowledge of health effects

The chlorinated solvent constituents TCE and TCA are members of a family of chemicals

known as volatile halogenated aliphatic hydrocarbons, which also includes other highly-used30

solvents such as chloroform, chloroethane, dichloroethane, dichloroethylene, tetrachloroethane,

tetrachloroethylene, vinyl chloride, carbon tetrachloride, and various chlorofluorocarbons (often

known by the brand name Freon). Because they are all chemically related, they share to varying

degrees the similar characteristics of solvent action, toxicity, volatility, chemical and biological31

stability, solubility in and surface tension with water, and affinity for various solid materials.

These are the chemical characteristics which determine both industrial utility and the degree to

which such compounds can pollute groundwater.

The chlorinated aliphatic hydrocarbons, a subclass of these compounds, were long known

to be toxic by ingestion and inhalation. Soon after these compounds began to be manufactured,

cases of disease and death among chemical workers chronically exposed to them prompted

human and animal toxicology studies of systemic diseases. By the mid-twentieth century, they

were suspected as a class of causing cancer and some compounds, such as carbon tetrachloride,

were known to be human carcinogens. By the 1970s it was confirmed that many chlorinated

aliphatic hydrocarbons caused cancer in laboratory animals. Knowledge of systemic health

effects among workers exposed to chlorinated aliphatic hydrocarbons, including death and

chronic diseases, dates back more than 60 years. A major book on the subject was published by32

ATSDR, 1,4-dioxane fact sheet, September, 2007.28

T. Mohr, Environmental investigation and remediation: 1,4-dioxane and other solvent stabilizers,29

Table 1.24, common metal-inhibitor compounds used in chlorinated solvents, in press, 2010, Taylor andFrancis Publishers.

Volatile means that they evaporate at room temperature. Halogenated refers to the fact that the30

molecules contain one or more chlorine or bromine atoms. Aliphatic roughly means that the moleculedoes not contain a benzene ring or benzene-ring type bonds.

Chemists and chemical manufacturers often present data about individual compounds in tables or31

graphs to show their position in the continuum defined by the chemical family's aggregate range ofproperties.

H.G. Dyktor and J. Buxell, Health hazards and their control in the electroplating industry, Industrial32

Hygiene Service, City of St. Louis, Mo., p. 10 - 11, 1938; T. McClurkin, The toxicity of organic solvents,Chemistry and Industry, 1939, pp. 339-342; Manufacturing Chemists Association, Chemical Safety DataSheet SD-14 Trichloroethylene, 1947. This guidance states: "Certain individuals have been found whoare unduly susceptible to various chlorinated hydrocarbons... exposures to trichloroethylene even inconcentrations known to be non-hazardous to normal individuals should be prohibited in the following

17

US Public Health Service in 1955. As a class, chlorinated aliphatics were known to be or33

suspected to be human carcinogens.34

A great deal of the research about the toxicity of chlorinated solvents has been conducted

or funded by industry. For example, in the early 1970s, the chemical industry intensified its

efforts to respond to concern about potential or known toxicity of volatile halogenated aliphatics,

including concern about cancer risk.

6. Chemicals used at the Turner Drive plant

The Brown Group has provided only limited records relating to the chemicals used for

degreasing and other purposes at the Turner Drive plant. According to invoices, the solvents

were ordered and paid for by the Denver plant and were supplied by Van Waters & Rogers, a

western chemical supplier whose locations included Denver, Colorado, and Albuquerque, New

Mexico. Although the Turner Drive plant operated approximately six years - from January, 1976

to October, 1982 - Brown has provided purchase orders, invoices, and other correspondence with

vendors that date only from November, 1977 to mid 1979. The records relating specifically to

chlorinated solvent purchases cover an even shorter span - mid 1978 to mid 1979 - less than 20%

of the life of the plant. It is not clear whether the records are complete even for this short period.

Despite these limitations, the records that have been provided are sufficient to confirm that the

facility used large quantities of chemicals, particularly chlorinated solvents.

cases: (a) alcoholics, (b) exceedingly fleshy individuals, (c) undernourished individuals, (d) those withpulmonary diseases, stomach ulcers, high blood pressure, diseases of the liver, kidney, or heart, and (e)those suffering from paralysis, convulsive seizures and highly nervous states." Z. Bardodej and J.Vyskocil, The problem of trichloroethylene in occupational medicine, A.M.A. Archives of IndustrialHealth, vol. 13, no. 6 pp. 581-92, 1956, which argued that the air concentration of TCE in anoccupational setting should not exceed 50 ppb; R.D. Stewart, H.H. Gay, D.S. Early, C.L. Hake, and A.W.Shaffer, Human exposure to tetrachloroethylene vapor, Archives of Environmental Health, Vol. 2, pp. 40-46, 1961.

W.F. von Oettingen, The Halogenated Aliphatic, Olefinic, Cyclic, Aromatic, and Aliphatic-Aromatic33

Hydrocarbons Including the Halogenated Insecticides, Their Toxicity and Potential Dangers, U.S.Department of Health, Education, and Welfare, 1955. Note that the book's preface mentions a articlefrom 1937 entitled: The halogenated hydrocarbons: their toxicity and potential dangers, published in theJournal of Industrial Toxicology, vol. 19, 1937.

W.C. Hueper, Occupational Tumors and Allied Diseases, Charles C. Thomas, p. 347, 1942; A.B.34

Eschenbrenner, Induction of hepatomas in mice by repeated oral administration of chloroform, withobservations on sex differences, Journal of the National Cancer Institute, vol. 5, pp. 251-55, 1945; W.C.Heuper, Environmental Cancer, U.S. Public Health Service, 1950; W.C. Hueper, Environmental cancerhazards caused by industrial air pollution, Industrial Hygiene and Industrial Medicine, pp. 323-28, 1950;J.R. Heller, Chemical carcinogens, Industrial Hygiene and Occupational Medicine, pp. 390-99, 1950cites a study published in 1941.

18

Records pertaining to disposal or recycling of chlorinated solvents are even less abundant,

consisting of a single documented instance on July 25, 1979 only two days before Brown Group

acquired OSI and two months before Plummer assumed operations at the plant on September35

25. Plummer immediately informed the Colorado Department of Health hazardous waste control

division that they were generating spent TCA waste at the rate of 2500 gal/yr.36

6.1 TCE

There are currently no known historical documents that directly show that TCE was used

at the Turner Drive plant. Several lines of evidence, however, lead to the conclusion that TCE

contamination at the site did result from its operations.

TCE was the most widely used degreasing solvent in the 1960s. It was overtaken by TCA

in the early 1970s due to concerns about smog formation (mainly in California) and toxicity,37

but millions of pounds of TCE-based degreasers continued to be produced into the 1990s. Total

TCE production dropped from a high in 1970 of 600 million lb/yr to 300 million lb/yr from 1975

through 1979. Production dropped to 250 million lb/yr in 1980 and 1981, and stabilized at just

under 200 million lb/yr for the remainder of the 1980s. The Turner Drive plant would not have38

faced any difficulties in obtaining TCE. In the absence of Los Angeles-style smog regulations,

selection between TCE and alternatives such as TCA would have remained a matter of

convenience, preference, and habit. This choice would have been influenced by the fact that the

majority of vapor degreasers manufactured in the mid-1970s and before were designed to use

TCE and needed modification to use TCA.39

Most of the former employees did not remember the names of the solvents used in the

degreasing machines. Among the those who could, the only name they recall is

trichloroethylene. No one recalled the names trichloroethane or Chlorothene VG. Conway, who

BGD2231-235

LCP00001-7. This is 46 drums per year. The form describes the waste as containing 95% TCA, 4%36

beeswax, and 1.5% tar, pitch, paint, oil, and rosin: this appears to be is spent solvent, not degreasersludge or still bottoms, which often can't be recycled. The accuracy of what is claimed on the formshould not be assumed. For example, although Plummer claimed that it would generate 800 gallons peryear of acetone and various oils, and that these wastes would be taken by Belt Salvage of Cortez, CO.,Dan Belt has denied that his company ever accepted chemical wastes from the Turner Drive plant oranyone else. [Affidavit of Dan Belt, October 27, 2009.]

Doherty, 2000a referenced above, p. 86.37

Doherty, 2000b, Figure 1, cited above.38

Dow Chemical Co., Economical and efficient vapor degreasing with chlorinated solvents from Dow,39

p. 30, 1987.

19

worked at both Durango locations, is sure that trichloroethylene was used at Main Street.

Although he thought that TCE might have been subject to a "government ban" in the 1970s, he

wasn't sure if something else was used at Turner Drive, and if so what it might have been.

Archuleta, who only worked at Turner Drive (1976 through 1978), remembers seeing the name

trichloroethylene on containers, and possibly "Trichlor." Trichlor is a trade name for TCE, but

not TCA. Archuleta and Barnes both remember trichloroethylene being used at the Turner40

Drive plant. Given that there are no records relating to solvent use at either the Main Street plant

or the first nearly two years at the Turner Drive plant, the recollections of former employees carry

significant weight.

There is also a high probability that any TCA used at the plant would have contained

environmentally significant amounts of TCE as an impurity. The TCE in the TCA originated

from two sources:

• In new TCA, as an artifact of the manufacturing process used by three of the four U.S.producers, including DOW. TCA often contained hundreds to thousands of parts per41

million TCE. TCE would be present, and could even be concentrated, in waste TCA.42

• In recycled TCA, both carried over as an original impurity in the TCA and also as anartifact of the distillation process used by solvent recyclers. In the absence of records, wecannot rule out that the Turner Drive plant sometimes purchased recycled solvent. Recycled TCA would be expected to contain small amounts of TCE because (1) TCE waswidely used and thus likely to be reprocessed by recyclers, (2) in the mid 1970s and early1980s, many companies used both TCE and TCA and did not perfectly segregate their

Doherty 2000b, p. 89-90, referenced above; B. Murphy and R.D. Morrison, Introduction to40

Environmental Forensics, Academic Press, Appendix B: Applications and synonyms of selectedchlorinated solvents, pp. 523-29; PPG Industries, Trichloroethylene [product specification sheet], June,2005.

This was hydrochlorination of vinylidene chloride (1,1-dichloroethylene). Some manufacturers41

produced TCA by chlorination of 1,1-dichloroethane [R. Doherty, referenced above, pp. 88-90].

D. Henschler, D. Reichert, and M. Metzler, Identification of potential carcinogens in technical grade42

1,1,1-trichloroethane, International Archives of Occupational Environmental Health, vol. 47, pp. 263-268, 1980. Of 22 different batches of TCA tested by these authors, 12 contained TCE in estimatedconcentrations that ranged from 480 to 6300 ppm. The samples that contained the lowest DCEconcentrations tended to be the ones without TCE, perhaps indicating a manufacturing process that didn'tbegin with TCE. Nine of the samples also tested positive for dioxane, and this was strongly correlated tothe presence of TCE, leading to the obvious conclusion that TCA that contained dioxane as a stabilizerwas also likely to contain appreciable TCE.

20

wastes, and (3) TCA and TCE have close boiling temperatures: 74 and 87 deg. C,43 44

which makes it difficult to distill mixtures to a high degree of purity.45

6.2 TCA

TCA formulations such as Dow Chemical's Chlorothene VG were marketed specifically

as a replacement for TCE that would minimize the need for operational and equipment

modifications. TCA production increased sharply after 1970. Between 1970 and 1980,46

production grew from 400 to 700 million lb/yr; between 1976 and 1983 it averaged 650 million

lb/yr.

As discussed above, we have purchase records of chlorinated solvents for the Durango

plants only from the August 29, 1978 to August 7, 1979 and these mostly address the purchase of

Chlorothene VG from Van Waters & Rogers. A purchase request (subsequently filled) dated47

September 7, 1978 specifies delivery of 60 drums of Chlorothene VG over a 12 week span at a

rate of 5 drums per week. On a yearly basis, this would be 260 drums per year, a total of 14,000

gal (150,000 lb) of solvent.

If the referenced documents represent a complete record of all purchases during the time

covered, then it appears that the rate of Chlorothene VG purchases decreased in the succeeding48

months by 43%. Again assuming a complete record, over a span of eleven months a total of 148

In March, 1983, the Redfield plant in Denver sent 165 gals of degreasing waste containing at least43

50% 1,1,1-trichloroethane, at least 15% trichloroethylene, methylene chloride, and perchloroethylene toOil and Solvent Process Company. [BG067377] Note that in a separate lawsuit, a key part of Brown'sdefense was its denial that TCE was ever used at the Denver plant in after the early 1970s.

J. Montgomery and L. Welkom, Groundwater Chemicals Desk Reference, Lewis Publishers, MI, pp.44

515 and 524.

Dow Chemical Co., Degreasing: Economical and efficient vapor degreasing with chlorinated45

solvents from Dow, p. 21, January, 1987; J. Thuot, R. Peters, and F. Vivio, Solvent usage, recyclingpotential, and treatability studies in a research and development setting, Argonne National Lab reportANL/EMD/CP-89595, 1996. [This was presented at the USDOE Pollution Prevention Conference, July9-11, 1996, in Chicago IL.]

Dow Chemical Co., referenced above, p. 28, 198746

BGD014; BGD0067, BGD0112; BGD0115; BGD0064-6; BGD0079-80; BGD0100A-101;47

BGD0010; BGD0120-1; BGD0134; BGD0137-8; BGD0168. Purchase records for all chemicals suppliesdate back to November, 1977.

This cannot be assumed. For example, the only records we have originate from the Denver facility,48

who ordered degreaser solvents for both plants at least some of the time. It's possible that the Durangofacility sometimes independently ordered chemicals.

21

drums of Chlorothene VG were bought, which implies a use rate of 12.5 drums per month, or

approximately 3 per week. This totals 86,000 lb consumed in eleven months.49

This high rate of solvent use would have produced a substantial amount of waste whose

volume can be roughly estimated. Loss of solvents from vapor degreasing machines generally

occurs in two ways. Mechanical removal, called dragout, occurs when solvent is retained on

clean items removed from the vessel. There are also evaporative losses. In a well-run operation

that minimizes dragout, evaporation is the major loss. Evaporative losses of Chlorothene VG50

for a machine similar to the ones at Turner Drive are typically approximately 33 lb/day.51

If we assume two operating degreasing units (one each in centering and polishing)

operating 24 hours per day, twenty days a month, over a period of eleven months, roughly 14,500

lb (25 drums) of Chlorothene VG would be expected to evaporate. Different assumptions about

the number of days or the number of machines changes the estimate proportionally. Assuming

either thirty days per month with two units or twenty days with three units give an estimate of

22,000 lb; thirty days and three machines gives 33,000 lb. This yields an evaporative loss rate

range of roughly 20 to 40%, leaving between 90 and 123 drums of spent TCA that would require

disposal. The actual volume of non-evaporated waste was higher because (1) the plant operated

less than 24 hour per day, (2) evaporation is easily controlled by the use of lids, and (3) not

included in this calculation is the substantial mass of glass, metal, abrasive particles, and

dissolved pitch, wax, paint, oil, and grease—the "dirt" that was cleaned off the lenses and blocks

— that accumulates in sludge and still bottoms. Nevertheless, focusing just on the solvent

component, we conclude that eight to eleven drums of Chlorothene VG degreaser waste would

have accumulated per month.

As discussed above, there exists only a single record pertaining to disposal or recycling of

chlorinated solvents. On July 25, 1979 Van Waters & Rogers picked up 16 drums of spent

Chlorothene VG. There is no record whatsoever for disposal of degreaser sludge or still bottoms,

which often can not be recycled. Clearly, the amount that was recycled represents only a small

fraction of the solvent ordered and is far less than the amount of waste that was have been

generated.

148 drums were ordered over 11 months, but we don't know how long it took to use the last order of49

10 drums and prompt a new order. Thus, the inferred use rate is computed by dividing 138 by 11months: 12.5 drums per month.

Both for economic reasons and to prevent excessive worker exposure and potential releases to the50

environment.

Dow Chemical Co. 1987, referenced above, p. 5; this is for an open top vapor degreaser with51

dimensions whose work basin measures 2x5 feet: 10 square feet. This roughly matches the sizes givenby Conway, Archuleta, and Jaramillo.

22

6.3 Acetone and other solvents

Purchase records show that relatively large amounts of acetone (dimethyl ketone) were

used at the Turner Drive plant. Acetone is flammable and has a high evaporation rate. It is a

strong solvent for many organic materials and is favored for operations which require manual

cleaning because it is less toxic than many other strong solvents. It is used widely to clean glass

items. Acetone was ordered at the rate of approximately one drum per week.

The Turner Drive plant also purchased drums of the chlorinated solvents methylene

chloride, "Safe-T Solvent" (a mixture of methylene chloride and acetone), and Freon-TMC (a

mixture of methylene chloride and Freon 113). The latter was used in a vapor degreaser in the

scope assembly room. Records show that the non-chlorinated solvents methyl ethyl ketone and

methanol were used in moderate quantities.

7. Waste handling

There are virtually no records in this case that specifically address waste generation or

waste disposal at this plant. However, useful information about practices within the plant has

emerged from former employees, even though waste handling was not a primary function for any

of the individuals yet located. What emerges from presently available information is a pattern of

behavior and several practices — whose relative quantitative importance as causative factors is

difficult to quantify — by which the Turner Drive plant directly or indirectly released solvents

and other chemicals into the subsurface. Among these practices, however, it does presently

appear that direct dumping was an important source of subsurface contamination.

All the employees deposed to date agree that they received little or no training at the plant

regarding the chemicals and wastes they handled. They were neither informed of the risks, nor

instructed on safe methods of disposal. As discussed below, a program to provide such

instruction was considered mandatory in the guidance published from the 1940s onward.

7.1 Dumping on the ground

Two employees report that they emptied solvent waste directly onto the ground a short

distance east of the plant building. In her deposition, Stella Silva says that it was a fairly

common practice for employees working in the dark room to dump the solvent used to clean the

lenses onto the ground. Silva worked in the dark room first as a lens cleaner, then as an

inspector. She had a large pan of acetone that periodically required disposal. There were empty

drums in the loading dock area into which the spent acetone was normally poured. But when

23

they were full, she and others (Silva, pp. 25, 32) would dump them on the ground at multiple

locations on the east and northeast of the building (Silva, pp. 10-24, 34). She believes that

management knew about the practice, but never discouraged it (Silva, p. 32). Silva stated that

full drums may sometimes have been dumped in the same areas, but she never witnessed it

personally (Silva, pp. 25, 42, 44).

Perry Barnes reports that drums containing degreasing solvents, which he identified as

trichloroethylene (Barnes, pp. 24-26, 30, 40-1, 51-2), were dumped on the ground. Barnes

worked from 1974 to 1982, at both plants, mostly in polishing. He started out as a polisher in the

single lens area (east side of the polish floor), then in multiple lenses (west side). For a short

time Barnes worked in an area of the polish floor that produced prototype lenses for spotting

scopes, but this operation was short-lived, and that part of the building subsequently became the

rework area where scratched lenses were resurfaced.

Barnes said that he was once instructed to take two or three drums that contained a black-

colored liquid, add a second chemical—which he was told would turn the waste into "salt

water"— that caused the contents to react and foam, and dump them on the ground east of the

building. He identified the contents as solvent waste that came from the polish floor degreasing

machine (Barnes, pp. 50-70). Although he is not sure of the year he dumped the waste, he52

thought it was after the rework area was set up.

Barnes recalls that in the rework area, lenses were sometimes degreased in pans of

solvent that was the same as that used in the degreasing machines. Sometimes these pans were

dumped back into the degreasing machines (Barnes, pp. 70, 78). He used cloth towels to wipe

this solvent off of lenses — and these towels were washed in house. He was certain that the

solvent in the trays was not acetone because it did not evaporate as quickly (Barnes, personal

conversation).

7.2 Releases within the plant

There is no chemical that can easily turn a chlorinated solvent such as TCE or TCA into saltwater. 52

More likely, the second chemical would have been intended to neutralize relatively high concentrations2aqueous hydrochloric acid (HCl+H O) in the waste solvent. The production of such acids is a well

known problem in the degreasing industry, particularly if oils and water-based buffing materials areinvolved. [Dow, 1987, referenced above, p. 21; ASTM 1979; Wallace, 1938, referenced above.] In fact,preventing the formation of acids when water or other materials get into the solvent is the very reasonthat certain stabilizers are added to solvent formulations. Adding a base to a spent solvent does indeedproduce a salt solution, but only in the aqueous fraction of the waste; the chlorinated hydrocarbons willbe left largely unaltered.

24

Chemicals, including chlorinated solvents, have been detected in the ground beneath the

Turner Drive building. Two well known pathways by which chemicals enter the subsurface53

below buildings are disposal into a leaking drainage system and penetration through floor

structures.54

Chemicals can enter drain systems either directly or indirectly. In direct entry, spent or

unwanted chemicals are poured into drains. Entry can also occur indirectly when chemicals on

machines, tools, work surfaces, or the floor are washed into drains as a result of cleaning

operations. There is evidence that chemicals at the plant were delivered into the plant's sewage

system via both of these pathways.

Documentary information for the drain system as it existed during the plant's years of

operations is limited: blueprints and architectural drawings are unavailable. Much of what is

currently known is based on the recollections of former employees; thus the locations of the

various drain fixtures are approximate. Furthermore, the employees can supply only limited

information on the system's subsurface features. When the County modified the building to

become a jail, it installed a new drain system. As a result of this and later work, some important

details about the old drain system have surfaced. In this section, I summarize relevant parts of

the plant's drain system as pieced together from the descriptions of former plant employees and

County workers.

Although there were probably more, employees have identified two utility sinks in the

operations area. One was located in the polishing area (Conway, p. 122) and one was located in

the centering room (Jaramillo, 132-3).

The drain that was best remembered (Archuleta, Barnes, Conway, Jaramillo, Sanchez,

and Silva) was a very large and prominent one located on the floor of the polishing area. This

was a trench drain, oriented east-west, that extended almost the entire length of the polishing

area. It was located near, and parallel to, the northern wall of the polishing room, had a recessed

cover, and measured approximately two feet wide and six inches deep (Archuleta, pp. 68-70;

personal communications with Barnes and Sanchez). Multiple polishing lines ran perpendicular

to the trench drain (north-south). Starting from the north wall, the polishing lines generally

consisted of grinding machines, work tables, polishing machines, and inspection booths (Barnes).

P. Rosasco, personal communication; EMSI Draft RI/FS Report Figures 15, 16, 17, and 23, plotted53

September 15, 2009.

P.J. Sullivan, F.J. Agardy, and R. Traub, Practical Environmental Forensics, J. Wiley & Sons, p. 23,54

2001. This states (p. 23): "...when a liquid is released within a building, it may seep through cracks inthe floor, discharge to a floor drain (whose pipes may leak to the soil)."

25

The reason the trench drain was so large was so that it could service all, or most, areas of the

polishing floor.

Operations in the polishing area were often wet and messy. There were more than 50

grinding and polishing machines, all of which used liquid-based lubricants or abrasive slurries.

Some of the machines leaked hydraulic oil onto the floor — pans were positioned to catch drips

(Archuleta, p. 53). Grinding machines threw off an oily mist of coolant which settled onto the

floor (Jaramillo, p. 35). Wet work pieces — lenses mounted on blocking tools — were moved

between work stations and dripped (Conway, p. 100). There was on-going mixing and transport

of various liquids: slurries, coolants, and solvents.

Each polishing machine had a tank which contained a water-based abrasive slurry that

was used to polish the lenses. Each grinding machine had a tank of oil coolant that accumulated

particles of ground glass and abrasive. All of these tanks had to be changed regularly. Also,

grinding and polishing machines became encrusted with these materials and required periodic

cleaning.

It was a regular practice to drain spent materials from the machines in the polishing area

onto the floor and into the trench drains. This occurred multiple times each day (Conway, pp.

48-50; Sanchez, personal communication). Employees remember that squeegees and mops55

were used to aid the process of directing liquids on the floor into the drains (Conway, p. 101).

During a shift, it was also a regular practice to mop wet or oily floors to reduce the slipping

hazard. At the end of a shift, the floor was hosed down. By these means, whatever went onto the

floor would in all likelihood end up in the drain.

Operations in the centering room were similarly messy (Archuleta, pp. 142-3). The

grinding wheels threw off a mist of oily coolant which coated the floor, machinery, and the

operators (Jaramillo, pp. 126-7). Hydraulic oil also dripped from the centering machines

(Archuleta, pp. 112, 141-3). Jaramillo recalled a drain of sorts in the centering room, which was

connected to small trench or sump, but did not think it connected to anything else. He thought

that when it contained liquids it had to be pumped out. As with the polishing room, the floor in56

the centering room was often wet and often mopped (Jaramillo, 127-8, 131-2).

Jaramillo described a use of the covered drain that differed from everyone else. He thought it was55

part of a closed slurry delivery system, connected to each polisher, that originated in a room he neverentered. But because he heavily qualified his description, saying that his understanding was limited sincehe worked in the polishing area for only four days, and because he described an elaborate system thatnobody else recalls and is flatly contradicted by employees who were long-time polishers, I havediscounted this part of his description.

The logic of such a system is hard to understand, unless this was a drain that had backed up from56

accumulated grit.

26

7.2.1 Solvents from the degreasing machines

By no later than 1978, both the polishing and centering rooms had large vapor degreasing

machines. Each contained dozens of gallons of chlorinated solvent. They were the same make

and model and thus must have been operated in similar ways. The machines stood high enough

that operators had to ascend steps before lowering items into the vessel. Employees recount that

parts that needed to be cleaned — trays of lenses, usually sitting on wooden trays or holders —

were loaded onto long-handled wire baskets and then the operator reached over the lip of the

machine to lower the basket into the hot vapor. Streams of liquid condensed on their surfaces

and dripped off. Liquid was sprayed from wands increase the cleaning power as needed. Some

employees remember that baskets were, or could be immersed in the liquid solvent (Archuleta,

58-9). 57

When the baskets were lifted from the machine, solvent would dripped off. It would drip

back into the vessel if the operator held the basket above it for a sufficient time. If not, the parts

would continue to drip when the operator brought the basket down from the machine and placed

it either on a cart or on the cement floor next to the machine. Depending on how fast the

operator performed the procedure, varying amounts of solvent sometimes ran off and dripped58

on the floor (Archuleta, p. 61, 102; Conway, pp. 40 and 98; Jaramillo, pp. 129-30). This is called

dragout, a problem that has been universally recognized since the earliest days of degreasing. 59

Since these machines were used on a constant basis during each shift (Jaramillo, pp. 59-64; 78-

83; Archuleta, p. 154), the opportunity for solvent to drip onto the floor was also constant, and

over the course of years the cumulative amount would have been significant.

Several employees describe conditions on the centering room floor as requiring frequent

mopping. Archuleta recalled that sometimes enough solvent dripped on the floor to wet it and

make mopping necessary (Archuleta, pp. 61-3, 66). Jaramillo recalled that the floor was often

coated with oily residues (Jaramillo, pp. 68-9, 132-3) and that the floor had to be mopped "all the

time" (Jaramillo, 124-30). Conway thought the solvent drips would progressively build up a

coating on the floor of paint, resin, and whatever was dissolved in it (Conway, pp. 39-40, 43). 60

Similar conditions would have existed at the polishing room degreasing unit, where residues on

the floor were hosed down and washed directly into drains.

Depending on design, this was an option with some vapor degreasers.57

It would also depend on other factors such as the size, shape, and orientation of the cleaned items. 58

For example, items that were concave shaped or had recesses could retain more solvent.

Solvent loss raises costs and presents several occupational hazards.59

Plummer Precision Optics waste report, cited above specifies that its spent TCA contained 4%60

beeswax and 1.5% pine tar, pitch, paint, and oil. [LPC00001-7].

27

Archuleta, Conway, and Jaramillo all stated that because the vapor degreasing solvent

was volatile, drips onto the floor appeared to rapidly evaporate and disappear. While this would

have been true to a degree, there are several factors that would have made appearances deceiving.

Cement is a porous material that liquids (and vapors) such as TCE and TCA can penetrate. In

fact, TCE and TCA penetrate into cement faster than water. Thus, if a chlorinated solvent (or61

other liquid) falls on a dry cement surface, the perceived "disappearance" rate is faster than the

actual rate of evaporation. This is because the surface will appear to have dried even though the

pores still retain liquid below the surface. Whether in the pores or on the surface of the cement,

the evaporation rate is substantially decreased by several mechanisms:

• Solvent in cement pores adsorbs to the solid and also has a reduced surface area incontact with the atmosphere.

• Oil or water that coats solvent-wet cement further reduces contact with the atmosphere.

• Solvent will dissolve in residues of oil, pitch, wax, paint, or even water coating the floor. Its evaporation rate is reduced in rough proportion to the relative volatilities andconcentrations of the mixture compounds.

Some of these effects will tend to increase over time. Coolant oils on the floor would tend to

build up over the course of a shift. Each successive cycle of dripping and drying leaves

additional residue on the floor which in turn further retards evaporation. 62

The essential point is that it is probable that some amount of solvent from both

degreasing units reached the drain system in the mop water and, in the polishing room, from hose

water as well. When the amount of solvent reaching the floor was sufficient to prompt

immediate mopping (as recalled by Archuleta), then the mop water that would later be poured

down a drain undoubtedly contained appreciable dissolved solvent. But even smaller drips,

dissolved into materials on the floor, could sometimes persist long enough to be gathered up

when the floors were mopped for other reasons. Note also that the addition of detergents would

increase the solubility of degreaser solvents in the mop water.

7.2.2 Piping leaks beneath the plant

As explained by Butch Knowlton, Director of La Plata County Building Department, in

his deposition, there is substantial evidence that the drains at the Turner Drive facility tied into a

sewage pipe system beneath the building that leaked to the ground. Knowlton explained that

R.D. Morrison, Environmental Forensics: Principles and Applications, CRC Press, pp. 243-50,61

1999. Archuleta thought that entry into the cement might account for the disappearance (pp. 141-44).

Water evaporates approximately substantially slower than TCE and TCA; oil, and wax may not62

evaporate at all.

28

pipe sections connected with neoprene sleeves violated the Colorado plumbing code and were

not strong enough to support the weight of the pipes at the join. Based on his professional

experience, Knowlton believes that these substandard connectors allowed enough flexing,

distortion, and displacement to make the system leak at multiple points. Donald Roseberry, a

licensed Master Plumber who has reviewed the information provided by Knowlton, has

concluded that the pipes would have leaked under the conditions Knowlton described. Such63

leaks would have allowed chemicals released into the drain system, either in dissolved or

undissolved form, to leak into the ground beneath the plant and contaminate the soil, soil gas,

and groundwater. This pathway is consistent with environmental data which shows that

existence of contamination beneath the building.

7.3 Training

None of the employees recall OSI, Brown, or Plummer providing any significant

information or training on the chemicals and wastes they handled. As will be discussed below,

such training has long been considered mandatory by the guidance published from the 1940s

onward. It appears that this lack of training among the employees was an important factor in

how carefully solvents and solvent wastes were managed.

Since employees were never trained about the special precautions needed in handling

solvents, one can infer that the informal disposal practices that are testified to for other chemicals

were also used for solvents.

8. Brown's corporate experience with pollution

Brown, including its Outdoor Products Industries Division, was a large, technically

knowledgeable company with an advanced understanding of chemistry, environmental

regulations, and the need to protect the natural environment.

8.1 Company overview

In the late 1970s and early 1980s, the Brown Group was a large and diverse company

with several divisions that possessed sophisticated knowledge about chemicals, degreasing,

surface coating, and electronics.

D. Roseberry, Summary opinion of Don Roseberry, October 29, 2009.63

29

The Brown Group's Metals Division and Outdoor Products Division included Hedstrom,

which manufactured bicycles, baby carriages, swing sets and yard equipment; Kenyon (OSI

acquisition) which manufactured stoves, boating instruments, sailboat masts, and marine

hardware; Redfield (OSI), which manufactured rifle scopes, mounts and accessories; and

Partrade, which manufactured bits, spurs, and accessories for horseback riding. In 1981 the

company produced more than 250,000 gym sets and 750,000 bicycles. Manufacturing64

operations involved metal fabrication, casting, metal plating, metal surface coating and treatment,

and the use of solvents, including chlorinated solvents such as TCE and TCA, for degreasing and

cleaning of products and machinery.

The Brown Group's Wood and Plastic Division manufactured children's furniture, rubber

and vinyl balls, lawn games, and toys. The Brown Group's Hedstrom Company used rotational

molding to produce a variety of plastic products. Plastic fabrication is a chemically intensive65

industry.

In 1979, the Brown Group claimed to be the largest manufacturer of nationally advertised

footwear, with 33% of its $1.1 billion in sales generated by shoe manufacturing. The Brown66

Group's shoe business was supported by company owned tanneries (some originating with OSI)

and a large number of shoe factories. Tanning, including leather dyeing, is a chemically

intensive industry.

8.2 Technical sophistication

The Brown Group had a large Chemical Division which purchased, blended, and

repackaged chemicals for company use. Brown Group operations used hundreds, if not

thousands, of chemicals. It also produced its own in-house Material Safety Data Sheets,

demonstrating it was knowledgeable about risks and waste management practices.67

The Brown Group also had an in-house chemical department and research and

development labs, beginning no later than the early 1980s. These departments had technically

trained individuals who were available for consultation on hazardous waste issues.68

The Brown Group, 1981 Annual Report, 1982 Annual Report, p. 22.64

Hedstrom Corporation Custom Plastics Division web page: www.hedstromplastics.com; personal65

communication with Hedstrom Production Manager, Ashland, Ohio.

The Brown Group, 1979 Annual Report.66

The Brown Group's Hazardous Waste Manual, 1983, BG118145, BG118524-619.67

The Brown Group's Hazardous Waste Manual, 1983, Section A, p. 2, BG118098.68

30

The Brown Group had contacts with many chemical product companies who supplied

them. Many of the solvent manufacturers and wholesalers, including Dow and Van Waters &

Rogers, had departments specifically intended to provide technical product information to

customers such as Brown.

8.3 Regulatory experience

The Brown Group possessed a detailed understanding of environmental regulations,

including RCRA, CERCLA, and others. Also, because of the type and location of the companies

that comprised it, the Brown Group could not help but be knowledgeable of major trends in

environmental law, regulation, and corporate responsibility.

The Brown Group's operations generated a great variety of wastes, including tanning

wastes, surface coating wastes, degreasing wastes, and wastes routinely associated with large

industrial machinery.

Metallic and solvent wastes from tanning included chromium, PCE, petroleum solvents,

and caustics. Solvents and solvent wastes were used and generated by many Brown Group69

operations. According to Lloyd Brunkhorst, who handled Brown's environmental affairs since

the 1970s, solvents "were used in all [Brown Group] factories as cleaning solvents. "70

Love Canal was only 45 miles north of the Brown Group's Moench Tannery, so Brown

had to be aware by 1980 of the danger of chemical wastes migrating into residential areas, the

passage of Superfund in response to Love Canal and other incidents of serious contamination,

and the lawsuits against Occidental Petroleum over Love Canal.

In the early 1980s, the Moench Tannery negotiated with the New York State Department

of Environmental Conservation over investigation of groundwater contamination from its

operations, which included disposal of hazardous wastes regulated under RCRA. From 1982

onward, the Brown Group installed numerous monitoring wells at that site to determine the

extent of off-site migration of contaminated groundwater. Contaminants included in the71

C.L Shineldecker, Handbook of Environmental Contaminants: A Guide for Assessment, Lewis69

Publishers, 1992, pp. 324-25.

Transcript of trial testimony of Lloyd Brunkhorst, Antolovich et al. vs. Brown Group Retail, Inc., pp.70

75 and 81; Transcript of Sanctions Hearing before the Honorable Herbert Stern III, May 12, 2003, pp. 29-31.

Malcolm Pirnie, Palmer Street Landfill Groundwater Quality Assessment, March, 1986.71

31

monitoring program included heavy metals and solvents such as methyl ethyl ketone and

dimethyl chloride.

Because it had a large tannery operation, it is inconceivable that in the late 1970s and

early 1980s, the Brown Group was not aware of the problems of pollution of residential drinking

water by chlorinated solvents and other tannery wastes in Woburn, Massachusetts, and the highly

publicized lawsuits that stemmed from them.

8.4 Environmental staff

Jerry LaMotte (an engineer) and Lloyd Brunkhorst (an engineer and physicist) handled

environmental affairs for the company beginning in the 1970s. In the trial arising from

groundwater contamination at the Denver plant, Brunkhorst testified that he headed

environmental affairs for the Brown Group after the mid-1980s. Brunkhorst later supervised72

environmental inspections an environmental response at the Redfield Denver site. He was

knowledgeable about the Brown Group's experience at other facilities, including the

environmental monitoring efforts at the Moench Tanning plant.

Brunkhorst testified that he started as a research scientist for Brown Shoe, and later

became director of research and engineering for both Brown Shoe and the Brown Group. His

responsibilities included managing environmental affairs and closing Brown Group's

manufacturing sites. It is thus highly likely that he was involved in the closing of the Durango

site. Furthermore, he would have understood that, given the plants history of heavy chlorinated

solvent use, contamination of the soil and groundwater was likely and an environmental

investigation was warranted.

By no later than 1983, the environmental staff had written a Hazardous Waste Manual for

the company. Brown Shoe's 1983 Hazardous Waste Manual contains descriptions and73

explanations of federal and state hazardous waste regulations, including information on storage

L. Brunkhorst, Trial Transcript of Testimony, Antolovich v. Brown Group Retail et. al, pp. 75 and72

109.

The Brown Group's Hazardous Waste Manual, 1983, BG118098 and BG118145-508 (note: there are73

numerous gaps in the Bates numbers); Brown Shoe Company, Hazardous Waste & MaterialManagement, approximately 1990, BG118021-140.

32

and shipping requirements. The manual explicitly recognized that Brown had a responsibility,74

beyond complying with regulations, to protect neighbors and the environment:

As Brown Shoe employees, we have the responsibility and the concern for the protectionof our fellow workers, neighbors, cities, and towns, and our environment. Not only dowe have a moral obligation, but is it the law?...

It is the purpose of this program to make it easier for you and your people to accomplish aday's work in a safe and legal way. It will help you develop the kind of practices that willprevent spills and accidents and how to react to unavoidable emergencies. In this way,you and your workers will be better protected; Brown Shoe Company will be incompliance with the law; and your environment — the air, soil, and water that surroundsus all — will be preserved from damage...

Given the very sensitive nature of the issue of "Hazardous Waste" in any of ourcommunities, the basic plan we will outline below should be strictly adhered to inorder that we incur goodwill of our communities and comply with the law[underline in original].

8.5 Pollution problems at the Denver facility

Affidavits and testimony given by Denver plant employees reveal how Brown handled its

industrial waste:

• In the 1970s and early 1980s, the Brown Group mismanaged its chlorinated solventwastes at the Denver plant by conducting unpermitted disposal of degreaser solvents: itdumped them on the ground near the plant.

• In the 1970s and 1980s, at the Denver Plant Brown and Redfield Rifle Scope, Inc. (RRSI)failed to minimize spills and leaks and allowed them to contaminante soil andgroundwater.

• In the 1980s and 1990s, Brown and RRSI failed to conducted their environmentalinvestigations in responsible ways.

• In the 1980s, Brown and RRSI did not comply with applicable state and federalregulations.

Interviews of Denver employees, conducted for The Brown Group in 1998, and later

depositions of these and other employees, provide compelling evidence for these conclusions:

The Chemical Division had the task of organizing the management of Hazardous Waste and74

Materials that were generated within Brown Shoe Company. The manual initially was in the form of abinder into which bulletins and other information sent by the Chemical Division could be consolidatedinto one place [Letter from C.R. Johnson, Executive Vice President of Production and Purchasing toAlton, dated 8/25/83, BG118142]. An index for the manual lists 23 sections. Jerry LaMotte, a technicaldirector of Brown's Research and Development Department directed the effort.

33

• Employees report that in the late 1970s and early 1980s, there was ongoing and deliberatedumping or discharge of hazardous wastes in a field on the eastern portion of the Redfieldfacility. Several witnesses testify either that they had first hand knowledge of thedumping or that it was common knowledge among plant personnel. The dumping wasdirected by a plant supervisor and done with the knowledge of the superintendent.

• Materials dumped included spent chlorinated solvents used for degreasing, still bottomsfrom degreasers, and waste oils. Employees involved in the dumping testified that theyknew it was wrong to do and that it was risky and harmful, but they felt that they had nochoice but to comply with company orders.

• It was common knowledge among plant personnel that there were ongoing leaks anddisposal of oils, solvents, and hazardous wastes inside and outside the plant. Inparticular, the vapor degreasing operations used at the Denver Plant leaked chlorinatedsolvents for at least 10 years, but Brown and RRSI neither fixed the cause of the leaks nortook the prudent steps necessary to ensure that leaked solvents would not escape into thesubsurface — elementary steps like installing drip pans or other collection devices. Major sources of leaks included daily filter change out, leaking pump seals, and tank anddistillation unit overflows. Some of the spills or leaks involved significant volumes.

• It was a normal practice at the Denver plant to throw solvent contaminated filters andsludges from the vapor degreasing machine into the trash and into the chip bins, whichwere known for years to leak liquids onto the ground.

• There are consistent reports that general housekeeping was poor and that numerous smallspills occurred because management exerted inadequate controls on the casual,uncontrolled use and disposal of chlorinated solvents by plant personnel.

• Employees testify that during its period of ownership, Brown never trained them in theproper handling or management of hazardous wastes, even after regulators had warnedand fined the facility for a lack of adequate employee training records.

These events in Denver show that Brown, in contravention of its long-standing

responsibilities to the public that were explicitly recognized in the 1983 environmental policy,

lacked a system of supervision capable of ensuring that its operations were conducted in an

environmentally responsible manner.

9. Knowledge of groundwater pollution by chlorinated solvents and other wastes

The general mechanisms and sources by which groundwater becomes contaminated by

industrial waste have been described in the technical literature for more than seventy years. By75

the 1940s, water contamination by industrial wastes was an important national topic. In many

A good summary of the literature is given in C.E. Colten and P.N. Skinner, The Road to Love Canal:75

Managing Waste Before EPA, University of Texas Press, Austin, 1996. See also B. Ross and S. Amter,Deregulation, chemical waste, and ground water: a 1949 debate, Ambix, vol 49, part 1, pp. 51-66, March2002.

34

states, where groundwater was an important resource, there was also rising interest in the causes

of groundwater contamination by industrial wastes, and ways to prevent it.

Both potential and actual groundwater contamination by chemicals used in metals plating,

finishing, and treatment, was recognized early and widely publicized. Groundwater

contamination by chromium wastes from plating and metal fabrication operations has been

widely documented since the 1940s. 76

It has long been known by industry, regulators, and environmental professionals that

releases of chlorinated solvents could, and in fact did, contaminate groundwater. The problem

was explicitly recognized in the late 1940s, and became better known in subsequent decades.

Evidence of this knowledge is primarily in the form of past published and unpublished accounts

of contamination, along with articles and reports reflecting concern that such contamination

could occur.

Published reports of ground contamination by chlorinated solvents date back many

decades. Two instances of releases of TCE or TCE waste contaminating groundwater were

reported by two British Public Analysts, F.A. Lyne and T. McLachlan, in a chemistry journal in

1949. During this period, there was intensive research into the movement through the soil of77

chemicals with the properties of chlorinated solvents. The motivation for this research was that

such chemicals, including some of the same compounds used as solvents, were injected into the

soil as "fumigants" to kill pests in the roots of plants.78

D.W. Graham, Chromium, a water and sewage problem, Journal of the American Water Works76

Association, vol 35, (1944), pp. 159-164 reported on regional ground-water contamination by chromiumarising from aircraft manufacturing and related fabrication industries in southern California; R.W. Oyler,Electroplating hazards and nuisances, Plating, November, pp. 1111-1114, 1948, describes a 1000-footlong plume of chromium-laden ground water poisoning several wells in Michigan; H.W. Davids and M.Lieber, Underground water contamination by chromium wastes, Water & Sewage Works, pp. 533-544,1951, describe how anodizing operations used by aircraft manufacturing on Long Island, NY, led tolarge-scale ground-water contamination.

F.A. Lyne and T. McLachlan, Contamination of water by trichloroethylene, The Analyst, September,77

p. 513, 1949. At the time, The Analyst was one of the world's leading publications on analyticalchemistry.

See for example R.P. Daroga and A.G. Pollard, Colormetric method for the determination of minute78

quantities of carbon tetrachloride and chloroform in air and soil, Journal of the Society of the ChemicalIndustry, vol. 60, pp. 218-222 (1941); C.T. Schmidt, Dispersion of fumigants through soil, Journal ofEconomic Entomology, vol. 40, pp. 829-37, (1947); W.J. Hanson, Factors which influence the diffusionof fumigants through soil, Dow Chemical Company, October 6, 1950; C.R. Youngson, The effects ofsome soil environmental conditions on movement of and root-knot nematode control by 1,2-dibromo-3-chloro-propane, 3-bromopropyne and 1,3-dichloropropene, Dow Chemical Company, October 26, 1956;Dow Agricultural Chemical Development, Factors influencing diffusion and nematode control by soilfumigants, ACD Information Bulletin No. 110, November 29, 1957; D.H. Smith and R.S. Shigenaga,Extraction of fumigants from soil for their determination by gas-liquid chromatography, Soil Science

35

At the time of publication, the 1949 report that spilled or dumped trichloroethylene can

contaminate groundwater appears to have been regarded by scientists as an unsurprising

confirmation of what had previously been expected. Citations of this paper, along with other

mentions of groundwater pollution by chlorinated solvents, recurred over the succeeding

decades. Evidence suggests that a significant number of scientists and government officials

understood that chlorinated solvents posed a contamination problem.79

Because the records of industrial companies are not typically archived and opened to the

public, direct evidence of what companies knew about chlorinated solvent contamination is

scarce. The records of one solvent-using factory, the Aerojet plant in Sacramento, California,

have come to light and they provide a useful perspective on company knowledge in the 1950s.

Even before the plant opened, the company and its regulators were well aware of the threat of

groundwater pollution by spilled TCE.80

The discovery in 1975 of widespread chlorinated-solvent contamination of public supply

wells in Long Island, New York, originating from degreasing at a manufacturing plant led to

extensive testing. By 1978, nearly 400 wells had been tested and TCE, PCE, TCA, and other

solvents had been found at concentrations ranging from ten to the hundreds of ppb. The problem

of chlorinated solvents in groundwater prompted a three day congressional hearing in 1978, at

which the prominent hydrogeologist David Miller testified that TCE and other solvents

"commonly migrate in ground water and are even more important than some of the pesticides...

we are finding that they cannot only migrate in an area that is heavily pumped for many years...

but for great distances." 81

The 1980 USEPA listing document for F001 wastes, which includes TCA, TCE, PCE,

and methylene chloride, states that these solvents were included because of their hazardous

properties and their "migratory potential and persistence" in groundwater. Several cases of

Society of America Proceedings, vol. 25, pp. 160-61 (1961); J.W. Hamaker, Estimation of theenvironmental fate of chemicals from equilibrium constants for their distribution between air, water, soil,and living organisms, Dow Chemical Company, October 15, 1971; letter report from K.I. Beynon toV.W. David, Pesticides in the environment - DD, September 8, 1970.

S. Amter and B. Ross, Was contamination of southern California Groundwater by chlorinated79

solvents foreseen?, Environmental Forensics, vol. 2, no. 2, pp. 179-184, 2001; S. Amter and B. Ross,Discussion of "A quest to located site described in the world's first publication on trichloroethenecontamination of groundwater" by M.O. Rivett & L. Clark, Quarterly Journal of Engineering Geologyand Hydrogeology, 40, 241-249, vol. 41, pp. 491-97, 2008; see also documents cited in these two papers.

Amter and Ross, Discussion of "A quest".80

U.S. House of Representatives, Ground Water Quality Research & Development, Hearings before81

the Subcommittee on the Environment and the Atmosphere for the Committee on Science andTechnology, ninety-fifth congress, second session, no. 80, April 8, 26, 27, pp. 147-151, 1978.

36

groundwater contamination from the early 1970s are offered as evidence for problems caused by

TCE and PCE.82

Many cases of groundwater contamination were known to various segments of industry,

but were not published or even reported to regulators. Organizations that discovered

contamination, such as industrial polluters and water suppliers, had significant economic and

legal incentives not to publicize their problems. In 1974, Geraghty and Miller, a leading

consultant to industry and government since 1957, described numerous groundwater

contamination incidents in a report for USEPA. These include several cases of groundwater

polluted by chlorinated solvents. The authors of this report noted that "few of the known

instances of contamination have been reported in the literature" and that the sources for the

reported incidents of TCE contamination are personal communications from state health

departments. 83

Not all contamination incidents were even reported to the government. The 1975

National Academy of Sciences report discussed above cites unpublished EPA data as its source

in describing a spill of PCE and TCE at a plant in Louisiana when a chemical reactor exploded.

(Whether groundwater was contaminated is not stated.) The National Academy committee

describes this as the only such spill that industry had reported, even though "Losses occur almost

inevitably from loading and transfer operations and accidents."84

The prominent German chlorinated solvent and DNAPL researcher Friedrich Schwille85

reports that he encountered his first case of TCE contamination in groundwater in 1967. The

public was not notified of this case. A second case followed a leak in a TCE pipe in 1973.86

USEPA Office of Solid Waste, Background Document: F001 Wastes from usage of halogenated82

hydrocarbon solvents in degreasing operations, November 14, 1980.

D.W. Miller, F.A. Deluca, and T.L. Tessier, Ground Water Contamination in the Northeastern83

States, USEPA Report EPA-660/2-74-056, June, 1974, pp. 7, 155, 233, and 234. For another warningfrom this period, see Proc. Groundwater Pollution in Europe, Reading, England, September 25-27, 1972,p. 28.

National Academy of Sciences, cited above, pp. 93-4.84

Schwille was a prominent hydrogeologist and researcher who advanced the understanding of how85

non-aqueous phase liquids, such as petroleum products and chlorinated solvents, behave in thesubsurface. In his paper on Lyne and McLachlan [cited above], Dr. Feenstra credits him with "theearliest proactive investigation of chlorinated solvents in groundwater." This appears to refer to a 1967incident discussed below.

This discussion is based on an English summary of Dr. Schwille's unpublished report by M.86

Schirmer.

37

10. Industry guidance

Industry has long accepted that it has an obligation to conduct operations involving

dangerous chemicals and chemical wastes in a safe and responsible manner. Consistent with

this, several industrial sectors have published guidance on how to protect workers, neighbors,

and the environment from the risks posed by chlorinated solvents and chlorinated solvent waste.

Industrial self-monitoring and self-reporting has long formed the foundation of

environmental regulation in the United States, and continues to do so today. Under this

approach, a company bears the primary responsibility of determining what it has to do to protect

its neighbors and the environment, and the main purpose of the government's police powers of

inspection and enforcement is to ensure compliance with regulations. This limited role for

government, which was dominant before the creation of USEPA in 1970, arose in response to

decades of industry lobbying. Industry's responsibility to prevent and abate pollution was

explicitly recognized by regulators in the Federal Water Pollution Control Act of 1948, which

states: "The policy is to recognize industry as a key member of the team engaged in solving the

national pollution problem, and to utilize industry's resources to the maximum extent in the

planning and execution of the pollution-abatement program carried out under this act." 87

10.1 Guidance on responsibility for proper care of wastes

By the 1940s, it was widely acknowledged that manufacturers had an obligation to take a

proactive approach to preventing and abating pollution by their chemical products and wastes.

A pamphlet by the National Safety Council stresses that a company must analyze each of

its waste-producing processes, preferably with the help of an expert. It states:88

Interest in the subject of industrial waste disposal is increasing rapidly and willprobably continue to increase...

The problem is important...because improper methods of disposal have causedinjury and disease among plant personnel and members of the general public, aswell as damage to property. [emphasis added]

To meet increasing demands for proper waste disposal, the following informationmust be secured: amounts and kinds of wastes being made, properties andcharacteristics of these materials, and methods of disposal for each kind. Present

C.E. Schwob, Federal Water Pollution Control Act, objectives and policies, Industrial and87

Engineering Chemistry, vol. 45, no. 12, pp. 2648-2652, 1953.

National Safety Council, Industrial Waste Disposal, Industrial Safety Series No. Chem. 7, 1948.88

38

disposal practices should be examined for possible sources of personal injury(either in the plant or outside), property damage, or nuisance.

Manufacturing concerns in the same type of business do not necessarily have thesame kind of waste disposal problems. Much depends upon the location of theplant — whether it is in a manufacturing, residential, or farming district — aswell as upon variations in the processes used. [emphasis added]

Used cleaning solutions and chemical and oil wastes of all kinds are mentioned as water

pollutants. The threat to ground water posed by soluble chemicals and oils in wastes dumped on

the ground is also mentioned.

The Manufacturing Chemists' Association published a guide for how a company should

investigate whether its processes could be a source of water pollution. Although written with89

the chemical industry in mind, this and similar guides were sold to anyone who ordered them,

including companies in other industries. On the topic of a company's responsibility to prevent

pollution, this manual specifies that:

Pollution control must be considered at every step in industrial development, fromresearch through design...

...waste disposal is dictated by law in many states. Whether so dictated or not, itis essential that investigation be made of local conditions, requirements, andtrends regarding waste disposal, so that the design of the plants will include thefacilities required for abating the discharge of excessive amounts of waste.

Many plants have been put into operation without adequate consideration of wastehandling. Consequently, it is often necessary to bring about a reduction in theamount of waste discharged, either because the plant has been ordered to do so bya pollution control authority, or because other necessary and desirable uses of thewaters are adversely affected by the wastes discharged.

On the topic of being a good neighbor, the guidance states:

A progressive company which is law abiding and jealous of its good name wouldcertainly want to abate all pollution which causes nuisance or which results inconditions contrary to legally established standards.

A paper presented at a conference sponsored by the American Institute of Chemical

Engineers discusses a company's need to hire experts in pollution control, "to fulfill its

obligations to be a good neighbor," and "to avoid endangering local inhabitants." To illustrate

Manufacturing Chemists' Association, Organization and Method for Investigating Wastes in89

Relation to Water Pollution, Manual Sheet W-1, 1947; also the 1954 revision.

39

principles of effective pollution control, the author gives examples from the plating, textile,

paper, food processing, and steel industries.90

10.2 Guidance on handling of chlorinated solvents

Guidance for industrial users of chlorinated solvents was available from solvent

manufacturers and various industry trade groups after World War II. Owing to the large size of

its membership, expertise in chemicals, and economic and political clout, the recognized leader

in the field was the Manufacturing Chemists' Association (MCA). The MCA began publishing

its "Chemical Safety Data Sheets" series in 1947. A short time later the American Insurance

Association and the American Association of Casualty and Safety Companies began their

"Special Hazard Bulletins," "Chemical Hazards Information," and later, "Chemical Hazards

Bulletin" series. Other trade organizations, such as the American Society for Testing and

Materials (ASTM), published guidance relating to chlorinated solvents used in specific industrial

practices.

The MCA maintained ties with other trade groups and influenced the chemical safety

guidance they published; this led to very similar content and language in the documents from

different organizations. Thus, much of the discussion below on guidance from the chemical

industry is generally applicable to guidance and information published by other organizations.

Because of the range of characteristics, uses, formulations, and mixes, each user had to

determine which particular solvent product would be best suited to its specific operations. When

making decisions relating to its use and handling of solvents, large sized companies could

combine in-house experience with the advice from solvent manufacturers who established

information centers, provided written guidance through their marketing departments, and even

sometimes provided on-site consultations. Thus, a company of Brown's size and type would

usually have the capability to obtain and understand available guidance, and evaluate the

potential for its waste-disposal practices to cause problems.

10.2.1 Guidance from chemical manufacturers

From 1947 onward, Chemical Safety Data Sheets (CSDS) and, later, Material Safety Data

Sheets (MSDSs) for chlorinated solvents prescribed waste disposal practices that were intended

to prevent groundwater pollution. Written by committees composed of representatives from

member companies, the guidance warned users about the need to properly handle and dispose of

chlorinated solvents and solvent waste and recommended practices that were intended to protect

R.F. Curran, Problems of industrial pollution control - water, American Institute of Chemical90

Engineers Symposium Series No. 90, vol. 64, pp. 162-165, 1968.

40

groundwater. Before 1970, the guidance came in the form of Chemical Safety Data Sheets.

After 1970, it was mandated by the U.S. Department of Labor that Material Safety Data Sheets

for each chemical had to be sent by suppliers to purchasers. According to the guidance, in certain

circumstances solvent waste could be poured on the ground, but only under conditions that would

allow the solvent to evaporate and avoid contaminating groundwater. In many cases, disposal

advice was preceded with warnings to consider local conditions, environmental regulations, and

in the earlier and less detailed CSDSs, to seek expert advice from the chemical supplier (i.e., the

members of the Manufacturing Chemists' Association which produced the guidance) when

considering disposal options. Over time, the disposal recommendations grew more explicit and

stringent and in some cases alternative disposal options were recommended. Ultimately, MCA

stopped publishing the CSDS "for fear of a product liability or related suit" in the early 1970s,91

but they influenced and were replaced by federally required (under OSHA) Material Safety Data

Sheets.

The CSDS for TCE was among the first group published in 1947. The CSDS for TCA

was first published in 1965. The initial CSDS for TCE contained a one paragraph waste92

disposal section that stated:

Residue may be poured on dry sand, earth, or ashes at a safe distance fromoccupied areas and allowed to evaporate into the atmosphere. [emphasis added]

One question that immediately comes to mind is why are dry materials specified? Why

place any limits on disposal to the ground? This caution is obviously not intended to protect the

soil or the air since the recommendation is placement on the soil to promote evaporation into air

as the ultimate sink. What then is in the ground that must be protected? The only resource left

that might cause concern is groundwater. The recommendation is for disposal by evaporation,

and the chemical manufacturers who devised the specific wording knew that dry soil maximizes

absorption and evaporation, whereas wet decreases evaporation (thereby increasing persistence in

the subsurface) and promotes migration deeper into the soil. Later CSDSs and Material Safety

Data Sheets (MSDSs) that are more explicit prove that groundwater was indeed the resource

being addressed implicitly in earlier publications.

The 1948 revision to the TCE CSDS (the same year that the Federal Water Pollution

Control Act was passed) adds additional warnings and advice:

S.A. Kaplan, Development of Material Safety Data Sheets, presented at the 191st American91

Chemical Society National Meeting, April 13 - 18, 1997, p. 4.

Manufacturing Chemists Association of the United States, Trichloroethylene, Chemical Safety Data92

Sheet SD-14, 1947.

41

Waste disposal of trichloroethylene depends to a great extent upon localconditions. Be sure that all Federal, State and local regulations regarding healthand pollution are followed. The supplier will be able to furnish good advice.[emphasis added]

This new language is important. First, it verifies that what is expressed in the advice on ground-

disposal arises from environmental and regulatory concerns. Second, it tells users of TCE to

seek advice from the manufacturers when making their disposal decisions. The waste disposal93

section remains essentially unchanged in the 1956 revision.

This basic language on local conditions, regulations, advice from suppliers, and disposal

onto dry soil is often found in similar or identical form in CSDSs for other chlorinated solvents,

and some non-chlorinated ones as well. Over time, indeed, there is different or additional

language reflecting increasing concern. In particular, the 1965 CSDS for 1,1,1-trichloroethane94 95

states that: "Limited amounts may be poured on dry sand..." and that "In the interest of economy

and avoidance of possible pollution, discharge water contaminated with it may be air blown for a

few hours in well ventilated area." [emphasis added]

Language in the 1970s became even more explicit. A Dow Chemical 1974 MSDS for96

Chlorothene VG recommends that spent solvent be sent to a reclaimer. A 1978 General97

Electric MSDS for various brands of TCE states that "Waste can be processed to recover TCE,98

or it can be burned in an appropriately equipped, high temperature incinerator (fume scrubbing

system required to remove HCl). Disposal through a licensed waste disposal company should

Note that multiple options existed at the time: off-site disposal, on- and off-site recycling instead of93

disposal, various forms of treatment, and incineration.

Manufacturing Chemists' Association, Vinyl Chloride, Chemical Safety Data Sheet SD-56, p. 14,94

1954; Manufacturing Chemists' Association, Benzene, Chemical Safety Data Sheet SD-2, third edition, p.13, 1960; Manufacturing Chemists' Association, Chloroform, Chemical Safety Data Sheet SD-89, p. 10,1962; Manufacturing Chemists' Association, Carbon Tetrachloride, Chemical Safety Data Sheet SD-3, p.12, revised 1962; Manufacturing Chemists' Association, Ethylene dichloride, Chemical Safety Data SheetSD-18, p. 16, revised 1971; Manufacturing Chemists' Association, Perchloroethylene, Chemical SafetyData Sheet SD-24, p. 13, revised 1971.

Manufacturing Chemists' Association, 1,1,1-Trichloroethane, Chemical Safety Data Sheet SD-90, p.95

12, 1965.

Dow Chemical Company, MSDS for Neu-Tri (brand name for TCE solvent), July 15, 1971; August96

17, 1973.

Dow Chemical, MSDS for Chlorothene VG solvent, January 3, 1974.97

General Electric, Tetrachloroethylene, Material Safety Data Sheet No. 312, Revision C, November98

1978.

42

also be considered. Scrap solvent and distillation residues must be handled as toxic wastes.

Follow Federal, State, and local regulations."

The CSDSs and MSDSs were not recommending casual and unrestricted dumping of

chlorinated solvents onto the ground. What was being recommended was disposal into the air

via evaporation (and sometimes burning). The dry ground was regarded as a temporary container

to facilitate this process by holding the solvent in open pores where it would be in intimate

contact with the air. The CSDSs and MSDSs stress that the practice is not appropriate under all

circumstances and attention must be paid to safety, health, and pollution considerations prior to

making disposal decisions. Several restrictions intended to prevent groundwater pollution and

other problems are stated, and alternative methods of disposal are recommended when

circumstances are not conducive to evaporation.

A 1980 Dow Chemical MSDS for Chlorothene VG that was twice sent to Brown by its99

supplier, Van Waters & Roger, states: "Disposal method: (In order of preference) Send solvent to

a licensed reclaimer, incineration, evaporation of very small quantities, or approved landfill

burial in compliance with local, state, and federal regulations. Dumping into sewers, or the

ground, or into any body of water is strongly discouraged and may be illegal."

Because trichloroethylene, trichloroethane, and all other chlorinated solvents are

dangerous substances, management had an obligation to train employees in their proper handling.

One purpose of MCA's CSDSs was to provided the users of the chemicals with what the

association described on the document covers as "essential information for safe handling and

use." The first CSDS for TCE, issued in 1947, stated that

6.4.2 The education and training of the employees to work safely... is aresponsibility of supervision.

6.4.3 Employee education and training should emphasize the need ofhandling trichloroethylene according to the methods outlined in this manual.

6.4.4 Before being placed on the job, new employees should be instructedthoroughly in the proper handling of trichloroethylene. Older employees shouldbe reinstructed periodically.100

Dow Chemical Company, MSDS for Chlorothene (R) VG solvent, October 2, 1980 [BG121211-7];99

also similar MSDS dated February 17, 1981 [BG066773-5].

Manufacturing Chemists' Association, Trichloroethylene, Chemical Safety Data Sheet SD-14, 1947.100

43

This text was repeated verbatim in the 1948 revision. The 1956 revision of the TCE guidance

and the 1965 TCA guidance contained similar language along with a specific instruction that

employees had to be warned to prevent spills.101

10.2.2 Information from the insurance industry

The insurance industry gave advice on degreasing, waste disposal, and chlorinated

solvents that was very similar to the chemical industry's advice. The Association of Casualty and

Surety Companies (ACSC) and the American Insurance Association (AIA) prepared documents

that were distributed mainly to chemical companies and end users of hazardous chemicals. 102

Such publications were popular and available to anyone who wanted them. For example, fire

departments and municipal governments often bought them. From the 1950s onward, the103

insurance industry published information on solvents and degreasing.

In 1951, ACSC published a document on degreasing processes as part of its Chemical

Hazards Information Series relating to industrial operations. This addressed the hazards posed by

degreasing operations using chlorinated and other solvents. The section entitled "Public

Liability" states: "Possible property damage claims may result from the pollution of streams by

the discharge of excessive quantities of degreaser tank sludge." The CSDS for TCE is listed in104

the "additional references" section.

In 1952, ACSC issued a publication on industrial waste disposal that warned repeatedly

about the dangers of groundwater pollution. It states:

In the past decade, the general public has become increasingly aware of the extentand detrimental effects of stream pollution and has demanded the reduction andadequate control of pollution of the waters of this country. ...industrial wastes aredefined as the liquid or water borne wastes from industrial processes, whichdischarged to a body of water, sewer or into the ground, may become waterpollutants....

Manufacturing Chemists' Association, Trichloroethylene, Chemical Safety Data Sheet SD-14,101

second revision, 1956; Manufacturing Chemists' Association, 1,1,1-Trichloroethylene, Chemical SafetyData Sheet SD-90, 1965.

S.A. Kaplan, cited above.102

Allen Haddox, American Insurance Association library, personal communication April 3, 2008. He103

has testified in court for the AIA on how insurance guidance was used and distributed.

ACSC, Degreasing Processes, p. 18, June, 1951.104

44

When a well, stream or other body of water is used for drinking water or for cattlewatering and toxic wastes find their way into them directly or by percolation orleaching through the soil, the lives of men and cattle may be endangered.

...it is not difficult to understand how claims may arise if pollution causes theabandonment of a stream, well or other body of water for such normal usage asdrinking... There is also the possibility that pollution of a municipal drinkingsupply may result in extremely costly claims.105

In 1967, AIA published a document on chlorinated hydrocarbons that specifically

addressed groundwater pollution in very similar terms.106

10.2.3 Guidance from ASTM

In 1962 the American Society for Testing and Materials (an organization mainly

representing industrial companies, now called simply ASTM) published a book, with a revision

14 years later, on vapor degreasing aimed at industrial consumers. The section on waste107

disposal (p. 32) states:

In the interest of economy, solvent should be reclaimed from the sludge. Indegreasers, the contaminated solvent is distilled until there is no condensedsolvent flowing to the water separator. In solvent stills, the residue should besteam stripped before it is discarded. Waste disposal depends to a great extent onlocal and federal regulations.

...If there are no local regulations forbidding it, the sludge may be poured on dryground at a safe distance from buildings and allowed to evaporate. If the sludge isfree-flowing and can soak into the ground before the solvent evaporates, it may bepoured into shallow containers to permit the solvent to evaporate before dumping.[emphasis added]

The section on waste disposal in the 1976 revision is virtually identical, and the language

of both is nearly the same as is found in CSDSs from the 1960s and early 1970s.

10.3 Analysis

Based on the guidance discussed above, the standard of care required a company to have

in place a proactive system to ensure chemicals and wastes from plant operations were managed

ACSC, Industrial Waste Disposal - General, 1950, revised 1952.105

AIA, Chlorinated Hydrocarbons, 1967.106

ASTM Committee D-26 on Halogenated Organic Solvents, Handbook of Vapor Degreasing, 1962;107

revision, 1976.

45

safely, responsibly, and in ways that adequately protected employees, neighbors, and the

environment. Each company had to understand its own chemicals, processes, and wastes, the

risks they posed, and the physical and geographic setting of the facility, either through in-house

expertise or through outside expert advice. A company was obligated to understand and follow

relevant guidance when making waste disposal decsions. Finally, a company was responsible for

training and instructing its employees on how to properly use and manage chlorinated solvents

and solvent wastes to protect human health and the environment. The failure by OSI, Brown,

and Plumber to follow the types of guidance discussed above was a violation of the standard of

care which led to the contamination at the Turner Drive site.

11. Regulatory Environment

The Brown plants in both Durango and Denver were subject to various local, state, and

federal laws and regulations. These governed the treatment, storage, and disposal of hazardous

waste, protection of groundwater, and discharges into the sewage system.

As described above, sewage pipe connections installed when the Turner Drive plant was

built were faulty and would inevitably have leaked liquids conveyed in them into the ground

beneath the plant. State and federal regulations, discussed below, all prohibited discharges of

hazardous chemicals into the ground. Also, in 1982, Durango passed an ordinance that restricted

sending significant amount of chemicals such as chlorinated solvents into the sewage system.

11.1 Hazardous waste

Both the Durango and Denver plants were subject to hazardous waste regulations under

the Colorado Industrial Waste Division, and the Resource, Conservation, and Recovery Act.

Three weeks after it began operating the Durango facility, Plummer Precision Optics identified

itself to the Colorado Department of Health, Radiation and Hazardous Wastes Control Division,

as a generator of 2,500 gal/yr of degreaser sludge containing 1,1,1-TCA, and reported that the

hazardous waste was picked up by the facility's solvent supplier, Van Waters & Rogers, for

reclamation. This is roughly two months after the only documented instance provided by108

Brown of degreaser solvents being picked up for reclamation or disposal. The Denver plant109

Craig W. Johnson, Plummer Precision Optics, State of Colorado industrial waste survey, October108

11, 1979. [LPC000001-7]

Van Waters & Rogers, Credit memo, 109

46

also identified itself as a generator of hazardous waste ; it was inspected several times in the110

early- to mid-1980s and repeated violations of hazardous waste storage and disposal

requirements were documented.

After November, 1980, RCRA prohibited unpermitted disposal of hazardous wastes such

as chlorinated solvents and chlorinated solvent wastes used in degreasing. Dumping such

materials on the ground at the Turner Drive plant was a violation of the standard of care.

Dumping into drains was only permitted if connected to a permitted sewage treatment plant that

complied with RCRA's provisions for treatment.111

11.2 Colorado water statutes

Under Colorado state statutes dating back to 1960s, the Brown Group, OSI, and Plummer

had an obligation not to contaminate groundwater. In 1966, the State of Colorado passed the

Water Pollution Control Act of 1966. § 1 states that its purpose was "to prevent, abate, and

control the pollution of the waters of the State." The legislature declared:

Whereas the pollution of the waters of this state constitutes a menace to publichealth and welfare, creates public nuisances... it is the public policy of this state...that no wastes be discharged into any waters of the state without first being giventhe degree of treatment necessary to protect the beneficial uses of such water...

§ 2 of the act defined "pollution" as:

"contamination, or other alteration of the physical, chemical, or biologicalproperties of any waters of the state... or such discharge of any liquid, gaseous,solid, radioactive, or other substance into any waters of the state as will or is likelyto create a nuisance or render such waters harmful, detrimental, or injurious topublic health, safety, or welfare, or to domestic, commercial, industrial,agricultural, recreational, or other beneficial uses, or to livestock, wild animals,birds, fish or other aquatic life."

"Waste" was defined as "sewage, industrial wastes, and all other liquid, gaseous, solid,

radioactive, or other substances which may pollute or tend to pollute any waters of the state."

"Waters of the state" was defined as "all waters within the jurisdiction of this state,

including all streams, lakes, ponds...wells, springs... and all other bodies or accumulations of

water, surface and underground... situated wholly or partly within or bordering upon the state."

Initially, the facility identified itself both as a hazardous waste generator and as a company that110

treated, stored, or disposed of hazardous waste. Subsequently, it modified its position and claimed to beonly a waste generator.

T. Wagner, The Complete Guide to Hazardous Waste Regulations, John Wiley & Sons, 1999.111

47

§ 9, entitled "Waste Disposal Standards" states: "Any person proposing to discharge

sewage or waste other than into a community sewer system shall file with the commission a

report of such proposed discharge."

The Colorado Water Quality Control Act, was passed in 1973 to "provide for the

prevention, abatement, and control of new or existing water pollution" and required companies to

report all suspected pollution incidents.

¶ 66-28-102(2) called for water quality standards for toxic substances and control

regulations "to describe precautionary measures, both mandatory and prohibitory, that must be

taken by any person owning, operating, conducting, or maintaining any facility, process, activity,

or waste pile that does or might cause pollution of any state waters in violation of control

regulations or cause the quality of any state waters to be in violation of any applicable water

quality standard."

¶ 66-28-601(2) specified that any company "engaged in any operation or activity which

results in a spill or a discharge of oil or other substance which may cause pollution of the waters

of the state contrary to the provisions of this article shall, as soon as he has knowledge thereto,

notify the division of such discharge [emphasis added].

¶ 66-28-606 empowered regulators to "issue orders to any person to clean up any material

which he, his employee, or agent has accidentally or purposely dumped, spilled, or otherwise

deposited in or near state waters which may pollute them."

Failure to notify Colorado authorities when solvents were dumped onto the ground or

otherwise allowed to contaminate groundwater was a violation of the standard of care. In the

1980s, the Colorado Water Quality Act was amended and strengthened.

11.3 Durango sewage ordinance

On April 9, 1982, Durango passed an ordinance which required that all facilities be

connected to city sewer system or, if such connection was not possible, into a permitted private

system. Discharging wastes either into the ground or into any unpermitted sewage systems was

prohibited. Furthermore, certain substances could not be discharged into the City's treatment

system. Oil or any wastes containing toxic materials that could interfere with the treatment

process, create hazardous conditions, or create any hazard in the receiving waters of the sewage

48

Exhibit A. Resume of Steven Amter

Steven Amter, M.S.

Education: B.S., Geology, State University of New York, 1980 (cum laude)

M.S., Hydrology, University of Arizona, 1987 (magna cum laude)

Work Experience:

1987 – Principal and Senior Environmental Scientist, Disposal Safety Incorpo-rated.

Analyzed and reviewed hundreds of sites contaminated by chemical andradioactive wastes, including zinc, lead, steel, and tungsten smelters,landfills, chemical, and pesticide manufacturing facilities, refineries, gasstations, pipelines, bulk storage, and other petroleum facilities, and aero-space manufacturers. Selected areas of experience include:

Superfund Sites: conducted in-depth evaluations of more than a dozenSuperfund (NPL) investigations and remediations and served as commu-nity technical advisor at superfund, RCRA, and municipal sites.

Numerical Modeling: Developed ground-water flow models for specificsites and a new numerical code to simulate subsurface radioactive gas flowbeneath the proposed nuclear repository below Yucca Mountain.

Subsurface Monitoring and Sampling: Designed systems to monitorand sample ground-water and air, including a municipal landfill in NewYork State, and a school adjacent to a Superfund site on Long Island,NY. Provided analysis of sampling and monitoring programs for a varietyof private and governmental clients.

Litigation: Provided litigation support and case management for bothprivate attorneys and the U.S. Department of Justice, including technicalanalysis, managing technical aspects of lawsuits, and negotiating techni-cal aspects of settlement and consent orders. Since 1993 have testified attrial in six cases, including federal court and state courts in West Virginia,California, Colorado, Indiana, and Rhode Island; have offered depositiontestimony in an additional eight cases. Testimony and analysis included:hydrogeology and the movement of contaminants through soil, groundwater, and soil gas; numerical ground-water flow models; environmentalproperties of chlorinated solvents, pesticides, PCBs, petroleum products,and perchlorate; past knowledge of ground-water, soil, and soil vapor con-tamination, particularly by largechemical and aerospace manufacturers;historical waste disposal practices; past knowledge of pollution preventionand remediation technologies; and the standard of care in the chemical,petroleum, aerospace, metal fabrication, and smelting industries.

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Real estate-related environmental site assessments: Conductedassessments and third party reviews for properties with an aggregatevalue of over 400 million dollars.

1985 – 1987 Research Assistant, Hydrology Department, University of Arizona projecton Unsaturated Flow and Transport Through Fractured Rock. Designed,developed, and tested, and computer simulated a new unsaturated-zonewater sampling device.

1986 Hydrogeologist, Ground Water Resource Consultants, Inc.

1980 – 1983 Hydrogeologist, Environmental Protection Bureau, New York State LawDepartment. Provided in-house scientific and technical consultation forenvironmental investigation, litigation, and remediation, including fieldwork at hazardous waste sites, sampling and monitoring program design,and procurement and supervision of consultants and expert witnesses.Corp.

Affiliations: Association of Ground Water Scientists and Engineers

American Geophysical Union

American Society for Environmental History

Geological Society of America

Honors: Loeb Foundation Scholarship, 1984-86

University Tuition Scholarship, 1984

Departmental Scholar of Geology, 1980

Scientific publications:

S. Amter and B. Ross, Discussion of ‘A quest to locate sites described in the world’s firstpublication on trichlorethene contamination of groundwater’ by M. O. Rivett and L. Clark,Quarterly Journal of Engineering Geology and Hydrology, vol. 41, pp. 491-493, 2008.

S. Amter and B. Ross, Comment on “Widespread presence of naturally occurring perchloratein High Plains of Texas and New Mexico,” Environmental Science and Technology, vol. 40,p. 7101, 2006.

S. Amter, Early history of vapor intrusion research, presented to EPA/AEHS Vapor IntrusionAttenuation Workshop, San Diego, March 15, 2004.

B. Ross and S. Amter, Deregulation, chemical waste, and ground water: A 1949 debate,Ambix, vol. 49, pp. 52-67, 2002.

S. Amter and B. Ross, Was contamination of southern California ground water by chlorinatedsolvents foreseen?, Environmental Forensics, vol. 2, pp. 179-184, 2001.

B. Ross and S. Amter, Poisoned water, contaminated history, Dissent, vol. 47, no. 3, pp. 53-57, 2000.

S. Amter and W.P. Eckel, Comment on ”Off-site forensic determination of airborne ele-

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mental emissions by multi-media analysis: a case study at two secondary lead smelters,”Environmental Science and Technology, vol. 30, no. 7, pp. 2417-2418, 1996.

B. Ross, S. Amter, and N. Lu, Predicted gas-phase movement of carbon-14 from a radioactivewaste repository, Radioactive Waste Management and the Nuclear Fuel Cycle, vol. 19, pp. 97-106, 1994.

N. Lu and S. Amter, Vector - A computer program that utilizes surfer or grapher toplot a vector field, Ground Water, vol. 30, no. 4, pp. 614-617, 1992.

B. Ross and S. Amter, Understanding the consultant’s report, in J. P. O’Brien and S. Carhart,eds., Environmental Due Diligence, Bureau of National Affairs, 1992, pp. 111:39-111:52.

B. Ross and S. Amter, Subsurface transport in water and gas, Engineering Geology, vol. 26,pp. 373-403, 1989.

S. Amter, Natural analogues, Engineering Geology, vol. 26, pp. 431-440, 1989.

S. Amter, Injection/recovery lysimeter technique for unsaturated zone soil-water extraction,Ground Water, vol. 25, no. 6, p. 761, 1987.

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Exhibit B. List of cases in which Steven Amter has testified in last four years.

King et al. v. Hamilton Sundstrand Corporation et al., Adam County District Court of the Stateof Colorado. Deposition given in 2005.

Adams/Allen et al. v. Aerojet et al., Superior Court of California in and for the County ofSacramento. Deposition given in 2005 and testimony given in 2006.

Drummond v. Dupont et al., Circuit Court of Harrison County, West Virginia. Depositionsgiven in October, 2006, and January, 2007.

Perrine v. Dupont, Circuit Court of Harrison County, West Virginia. Depositions given in Mayand July, 2007, and testimony in September, 2007.

Hawaii Water Service Company, Inc., v. The Dow Chemical Company et al., Circuit Court of theSecond Circuit State of Hawaii. Deposition given August, 2007.

Pulse Engineering, Inc. v. Federal Insurance, et al., United States District Court, SouthernDistrict of Indiana. Deposition given June 24, 2008.

Warren Smith et al. v. Carbide Chemicals Corporation, et al., United States District Court for theWestern District of Kentucky. Deposition given November 25, 2008.