COLUMBUS – In a meeting room at a downtown hotel here, Jan Schlictmann waits for his 10 a.m. appointment.
He doesn’t look a bit like John Travolta, who portrayed him in the film A Civil Action. It was based on Jonathan Harr’s 1995 book about Mr. Schlichtmann’s battle against corporate polluters.
It was Mr. Schlichtmann who represented eight families in Woburn, Mass., a small town north of Boston where a cluster of leukemia cases pointed to city wells contaminated with industrial chemicals.
After a nine-year legal battle, W.R. Grace paid $8 million to settle the case and pleaded guilty to two felony counts of lying to federal enviromental regulators. Mr. Schlictmann filed for bankruptcy and almost lost his mind.
A tall man, the 49-year-old Mr. Schlichtmann still has a lean face, but his hair and mustache have grayed. He’s out of bankruptcy and is back practicing law.
“I feel like I’m among the most fortunate of men,” he says.
When the reporter walks in, they grab chairs and sit facing each other in the large room.
It’s time for the opening statement.
“I’m working to unmask this campaign of lies against Justice [Alice Robie] Resnick, to expose to Ohio who is running and paying for this campaign,” Mr. Schlictmann says.
A front group called Citizens for a Strong Ohio has targeted Justice Resnick, a Toledo Democrat. One of the group’s members is R. Emmett Boyle, chief executive officer of Ormet Primary Aluminum Corp.
The business group, backed by Governor Taft, has raised millions of dollars for TV ads that bash Justice Resnick.
In a 6-1 decision released April 5, the Ohio Supreme Court ruled against Ormet, which had tried to get its insurers to pick up the tab for cleaning up contaminated groundwater. Justice Resnick and Republican Justice Deborah Cook, who also is on Tuesday’s ballot, agreed with the majority.
Let’s review the facts, as reflected in court records, and gauge whether voters should heed Mr. Boyle’s advice.
1. Since 1958, Ormet has owned and operated an aluminum manufacturing plant near Hannibal, O., along the Ohio River.
2. The plant included a well to provide water for the manufacturing process and drinking water for Ormet’s workers, and unlined disposal “lagoons” where the company dumped liquid waste.
3. A firm warned Ormet in 1956 that the lagoons would contaminate the well. Ormet did not take action.
4. By 1966, Ormet knew that water from its well was contaminated with fluoride, at a rate 12 times higher than the drinking water standard then.
5. In 1971, Ormet learned that the well contained cyanide, at a level between 50 and 200 times higher than the drinking water standard and the amount that could be dumped into a river.
6. Ormet followed the advice of a consultant who said in 1972 and 1973 that an “interceptor well” should be built as a barrier between the contaminated well and the “lagoons” where manufacturing waste was dumped. Ormet, however, ignored the recommendation to treat water from the new well, Instead, it was funnelled into the Ohio River through a storm sewer.
7. The state Environmental Protection Agency in 1975 gave Ormet its first permit to dump liquids into the Ohio River, but it did not limit cyanide.
8. In 1977, a firm working for Ormet discovered levels of cyanide and fluoride in the groundwater that were 500 times above the national limits.
9. In 1986, Mr. Boyle led a leveraged buyout of Ormet, with former Ormet board member Charles Bradley testifying that he and Mr. Boyle bought the company knowing that the groundwater was contaminated.
10. The U.S. Environmental Protection Agency placed the site in the “Superfund” program.
11. In 1995, Ormet sued its four insurance companies that provided liability coverage from the late 1950s until the early 1970s. The companies replied that Ormet had failed to comply with their policies, which required notification “in a timely fashion” about environmental problems.
In its decision released April 5, state Supreme Court Justice Evelyn Stratton wrote the decision siding with the insurance companies.
The sole dissenter was Justice Paul Pfeifer, a Republican who argued that a jury should decide whether Ormet’s notice to the insurers was “timely.”
In October, 1998, Ormet announced that the 40-acre site had been cleaned up, at an estimated cost of $31 million.
“We take tremendous care to protect the environment of the communities in which we do business,” Mr. Boyle said in a written statement then.
Mr. Schlictmann, who has resumed his work as an attorney, says he has studied the Ormet case and it has “eerie reminders” of his battle against W.R. Grace.
“You don’t need to be a rocket scientist to know how dangerous cyanide is. This was pollution off the charts and it’s been nearly a half-century of activity.
“Now they’re fighting to corrupt the judiciary so they don’t have to be held accountable for violating the law. It’s outrageous that they are trying to do it by smearing someone like Justice Resnick, who has a national reputation for being independent,” Mr. Schlictmann says.
* Jim Drew is chief of The Blade’s Columbus bureau.
The Supreme Court of Ohio
Column for April 26, 2000
DON’T DRINK THE WATER
BY JUSTICE PAUL E. PEIFER
It may not have been marked on your calendar, but April 22nd was the 30th anniversary of the first Earth Day celebration. Back in 1970, concerned environmentalists organized other like-minded people and chose April 22nd as a day to hold rallies nationwide to call attention to the beleaguered state of the planet.
Although they have made progress, environmentalists and their “green” causes have not always met with universal approval amongst the population at large. Like so many other social ills, it was difficult for people to grasp the full extent of the problems caused by pollution. Not everyone saw the need for the pollution controls and regulations that were being called for, and often where environmental laws clashed with industry and threatened people’s jobs, there was outright hatred for the environmental movement.
Despite the resistance though, there was a genuine need to make some major changes in our polluting ways. And a case that we handled earlier this month at the Supreme Court of Ohio illustrates how much we needed those changes and how useful the Earth Day types were in calling attention to the problems.
The roots of this case go all the way back to 1958, the year when Ormet Primary Aluminum Corporation opened an aluminum manufacturing plant near Hannibal, Ohio, on the Ohio River.
On the grounds of the facility Ormet dug two wells; one supplied drinking water for the employees, the other provided “process water” that was used in the manufacture of the aluminum. In fact, Ormet used a massive amount of water in manufacturing – about 1,800 gallons per minute, 24 hours a day – to cool the aluminum.
There was also a large open disposal “pond” on the site where Ormet dumped its liquid manufacturing waste.
Before Ormet even began operations, a consulting firm conducted a study of the geology and the underground water flow of the site and determined that the disposal pond would cause problems. The consultant suggested Ormet line the bottom of the pond and install another well to intercept contaminated groundwater before it reached the other wells. Ormet did neither.
By 1966, Ormet knew the water drawn from its wells was contaminated, with fluoride levels in the water 12 times higher than the drinking water standard of the time. Five years later, the problem was even worse. The water, which had turned black, contained cyanide – as much as 200 times the 1971 drinking water and river discharge water standards. The contaminates were leaching into the wells from the unlined disposal pond.
And it wasn’t just the drinking water that was affected; contaminates in the process water were causing problems in the manufacturing process.
Another consulting firm studied the problem and again the idea of an interceptor well was suggested as an economic means of assuring clean process water. But, the water in the new well would need to be treated because it would be even more highly contaminated than the other water.
Ormet built the interceptor well, but didn’t treat the water. Instead, that highly contaminated water was funneled through a storm sewer directly into the Ohio River.
But times were changing. In 1970, the Environmental Protection Agency was created, and with it came a slew of new environmental laws. Over the next 20 years or so, the Ormet site continued to be a major polluter, and a target of the EPA.
Eventually, the EPA determined that Ormet would have to install a water treatment plant and the company would have to pay to clean up the site. The costs to Ormet would run millions of dollars.
So why did this case come before the Ohio Supreme Court? Like any business, Ormet had liability insurance. Actually, Ormet had policies with several companies. Faced with the big price tag to clean up their years of pollution, Ormet filed a claim with its insurers in 1992.
But contained in the insurance contract was a clause that said “when an accident occurs, written notice shall be given by…the insured to the company…as soon as practicable.” The insurance companies felt that since Ormet had known about the water contamination since at least 1966, but hadn’t filed a claim until 1992, Ormet had not lived up to the “as soon as practicable” aspect of the contract.
Ormet filed a complaint in court hoping to win a judgment against the insurance companies. But the insurers filed a motion for summary judgment in their favor, meaning that they asked the judge to decide the case without it going to trial, based on their claims that Ormet had failed to give timely notice of both the environmental occurrences at the site and of the EPA demands.
The trial court granted the summary judgment, and the court of appeals affirmed that ruling. Then the case came before our court.
By a 6-to-1 margin, we affirmed the court of appeals decision. For the majority, the evidence was clear: Ormet was aware of the fluorides contamination by 1966; the cyanide problem by 1971; and in 1975, when Ormet received its first pollution permit from the state, the company knew that the Ohio EPA was unaware of the cyanide problem.
With that record, the majority of this court found that Ormet’s notice to its insurers was unreasonable, as a matter of law.
I was the lone vote of dissent, but not because I believed that Ormet was necessarily correct. I merely felt that this was a case where the conditions, the potential liability and the law were evolving over a long period of time, and there was no real “event” to measure timeliness. I felt the case demanded a jury determination, rather than summary judgment, as to whether the notice was timely.
Nevertheless, the original judgment against Ormet was affirmed.
If nothing else, this case is a perfect example that the environmental movement that got an auspicious boost with that first Earth Day 30 years ago – if not always popular – was certainly necessary.
EDITOR’S NOTE: The case referred to is: Ormet Primary Aluminum Corp. v. Employers Ins. Of Wausau (2000), 88 Ohio St.3d 292. Case No. 98-2456. Decided April 5, 2000. Majority opinion written by Justice Evelyn Lundberg Stratton. For more information call Kevin Diehl at (614) 466-2523.