PROVIDENCE -- Lawyers argued in federal
court over whether decades and distance separating a soil-contaminated
North Tiverton neighborhood from the source of arsenic, cyanide and
other hazards should absolve New England Gas Co. from facing a civil
trial, as U.S. District Judge Ernest C. Torres heard a motion yesterday
to dismiss lawsuits brought by scores of Bay Street-area homeowners.
Torres did not render a decision, and lawyers said it could be anywhere
from days to a month before they learn whether the case will continue.
In a hearing that ranged from citing case law to a reference to musician
Arlo Guthrie dumping garbage during a scene in the 1969 movie Alice's
Restaurant, murkiness over some legal theories raised the prospect that
the Rhode Island Supreme Court might be asked for clarification. Both
sides have a week to request it, and Torres said he could if they don't.
Both sides argued counts ranging from forms of negligence to
unauthorized disposal of hazardous materials.
At one point, David A. Wollin, of Adler Pollack & Sheehan in Providence,
one of four lawyers appearing on the gas company's behalf, argued that
"there is no dispute" in the case "that these are not neighboring
properties" and "none of these plaintiffs lived at these properties at
the time of the waste disposal."
At another point, however, Mark W. Roberts, one of four lawyers for the
homeowners, argued that decisions in other instances held someone
responsible when hazardous materials from a property some distance away
affected other properties by coming from smokestacks or by infiltrating
groundwater. The Tiverton case simply involves a different "delivery
vehicle" for the toxic materials -- trucks -- to affect other properties.
Two of the counts accuse the gas company of negligence and gross
negligence.
Wollin argued that Rhode Island law does not recognize a gross
negligence claim. As for the negligence claim, Wollin argued, in part,
that the alleged contamination happened "well before" current homeowners
owned or lived on the land. New England Gas, he said, therefore does not
have a "duty" to the property owners and, therefore, no basis for a
negligence claim. New England Gas is a division of Southern Union Co.
"They are trying to ask this court to fit a square peg into a round
hole," said Wollin.
"At the time of the waste disposal, it's undisputed that the land was
undeveloped at the time," Wollin said. He went on to say, in response to
questions from Torres, that it would be different if a company accused
of disposing of contaminants did so on adjacent land -- rather than on
these properties that are approximately a mile away -- and in the same
period in which the people owned and lived on the land.
But Neil Leifer, another lawyer for the homeowners, argued that some
contamination took place after the state put its hazardous waste
management law into effect in the 1950s. Therefore, he contended, New
England Gas can be found negligent. Responding to questions from Judge
Torres, Leifer said the residents had no way to detect that there was
substance -- no odor or other sign, until, by chance, the sewer-main
project uncovered blue-stained buried soil.
And Leifer cited a Massachusetts judge who found in 2003 that there was
"no justification for cutting off a course of action" to plaintiffs
involved in a case in which PCBs were "hauled off" a General Electric
Co. property and had been used in Pittsfield, Mass., in similar fashion
to what allegedly occurred in Tiverton. A defendant's "duty" to a
plaintiff does not "disappear," he added.
Rather, "given the nature of the poisons" in the Bay Street area and the
finding of a "latent, undiscovered defect" on properties, it "does
create a duty" for New England Gas.
On another count of the lawsuit, Wollin asserted that the Rhode Island
Supreme Court has "never held" that disposing possibly hazardous
materials meets the standard for what is known as "strict liability" --
a legal concept holding someone responsible for recklessness or
negligence. That is the case, he argued, even when the one disposing the
materials knew its allegedly hazardous nature.
Roberts asserted that "the dangers of coal gasification were well known"
long before the alleged actions in North Tiverton,
In response to hypothetical situations presented by Torres, Roberts said
that unlike, for instance, a scenario where dynamite explodes on a
transport truck, for which Roberts said there was no intent to harm, in
the gas company case "the intent was to give coal waste" to people.
Staff writer Michael P. McKinney can be reached at (401) 277-7447 or at
mmckinneATprojo.com
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