There's an old adage about the power of newspaper publishers that states, "Never argue with someone who buys ink by the barrel." But what can be done if that publisher fills his empty ink barrels with toxic waste and dumps them into your groundwater supply?
It has been known since the early 1990s that the Orlando Sentinel did just that. And a seven-year-old lawsuit is moving forward against the Sentinel by downtown landowners who say the newspaper polluted the groundwater under their property with trichloroethylene, a liquid solvent the newspaper for years used to clean ink from its presses. The chemical, more commonly known as TCE, is suspected to cause cancer.
The groundwater beneath the Sentinel and in a 10-block area stretching from Amelia Street north to Lake Concord, and from Magnolia Avenue west to Interstate 4, was contaminated with patches of TCE at levels as high as 580,000 parts per billion. The federal limit for drinking water is five parts per billion. Although state investigators ruled in 1994 that the Sentinel is the "sole source" of those pollutants -- a finding later endorsed by the federal Environmental Protection Agency -- the newspaper denies it.
Still, the Sentinel is paying 60 percent of the cleanup costs, at a cost of about $250,000 per year. (The federal and state governments are splitting the remaining costs.) That cleanup started two years ago but could take more than 10 years. Meanwhile, the property owners' lawsuit has been bolstered by the Orange County Property Appraiser's Office, which dropped the value of the surrounding land by 50 percent when the contamination was discovered.
Citing its cleanup effort, the Sentinel depicts itself as a good corporate citizen, mindful of the damage that careless handling of chemicals can cause and eager to move past this unfortunate mishap.
But new allegations made as part of the lawsuit indicate the Sentinel may have dumped TCE well beyond downtown. A former Sentinel worker says in an October deposition that during the 1970s, he hauled hundreds of 55-gallon drums of waste, including TCE, each year from the Sentinel's downtown plant to the former Orange County Landfill on Good Homes Road, and later to a private dump near the intersection of I-4 and State Road 436 in Altamonte Springs.
Alerted last week by Orlando Weekly, the Florida Department of Environmental Protection is investigating.
The lawsuit has been hard-fought; the Sentinel has at times been slow to assist both the plaintiffs (an array of downtown land partnerships) and state investigators seeking to learn the extent of the contamination.
Last October the lead plaintiff, Vanguard South, expanded their original complaint to demand punitive damages, seeking monies over and above the actual harm done. A judge in December denied that request. But it was in the amended complaint that the following new allegations surfaced:
The Sentinel tried to hide the fact it used TCE at least through 1982, telling plaintiffs it had stopped using the chemical in the 1970s. In January 1981, federal law made it a criminal offense to dispose TCE except through a licensed recycler or reclaimer.
A tank of TCE in the Sentinel's photoengraving room had a drain installed that sent the chemical directly to the sewer. It has been illegal since the 1950s to dispose industrial wastes in the sewer.
The Sentinel failed to maintain records showing its lawful disposal of TCE. This lack of documentation alone is a crime under federal regulations.
The amended complaint also alleges for the first time that every drop of TCE the newspaper used "was disposed of in an illegal fashion either through dumping it on the ground or illegally disposing of it down the sanitary or stormwater sewer systems." The complaint cites five former Sentinel employees who, in depositions, alleged that TCE was flushed into the storm drains. One of those witnesses, Earl Kenon, says he hauled liquid waste in 55-gallon former ink drums from the Sentinel to the landfills from at least 1973 to 1980. Moreover, he describes the work as routine. `See excerpt.`
Kenon's deposition, buried in court documents until now, could open the Sentinel and its parent company, the Tribune Co., to additional lawsuits from businesses and homeowners surrounding those other sites. TCE persists for decades, so even chemicals dumped in the early 1970s could pose a current threat. "If the resources contaminate even the shallow groundwater, we would be concerned about that," says Bill Bostwick, an administrator for the state Department of Environmental Protection's central district, "even if it hasn't gone down to the Floridan aquifer."
At press time, Bostwick was waiting for DEP lawyers to give him copies of Kenon's deposition. He said an investigation would begin if the allegations were credible.
Reached at his home in Quincy, Fla., Kenon says he started work as a press wipe in August of 1967. His job was to clean the presses after the newspaper was printed. For that he would use water, mineral spirits, an industrial cleaner he knew as "Big Red," and, for heavy-duty cleaning jobs, TCE.
When Kenon and his co-workers washed the presses, a metal chute would catch the chemicals and convey them to a barrel -- usually an empty, black, ink barrel. The workers would fill a barrel every two or three days, he says. When those barrels were full, they would carry them by forklift to a spot in the Sentinel parking lot. After about six weeks, when 20 to 25 barrels had been stacked, the workers loaded the barrels into a rented Ryder panel truck, and Kenon would drive them to the dump. Kenon says his driving duties began "a few years" after he started working at the Sentinel.
Once at the dump, the Sentinel workers would push the barrels out of the truck, where they were buried with the trash, Kenon says.
It was a messy job. The ink barrels had tops that could be completely removed, like giant paint cans. And as with paint cans, if the top of the can was dented, the lids would no longer fit tightly. That meant the barrels often leaked. Other barrels were damaged by the forklifts during the loading process, Kenon says. Some would burst open when they hit the ground.
The workers weren't doing anything they weren't told to do. "We went by the rules at that time," Kenon says. "We always went by company rules they passed on down to us."
The Sentinel's legal defense could be summed up in three statements: 1. We didn't do it; 2. We'll never do it again; 3. Even if we did do it, it was a long time ago, no one knew any better and it's no big deal.
The Sentinel does not deny Kenon's allegations in its response to the court filing, but instead concentrates on the narrow legal definition of conduct bad enough to warrant the additional punitive damages.
"The case does not involve the type of outrageous conduct for which punitive damages are reserved, and public policy would not be served by such an award," the Sentinel argues. "Moreover, the conduct that plaintiffs allege is the conduct of maintenance employees, not Sentinel managers."
And perhaps most important, argues the Sentinel, "There are no personal injury claims in this case. The plaintiff partnerships do not live on their parcels and admit that the groundwater beneath their parcels is not used for any purpose."
All that could change, however, if TCE or its components are discovered in either of the other dump sites. Both are in populated areas where some drinking water may have been drawn from wells during the years after the dumping allegedly occurred. The Good Homes Road area is on county water now, according to residents. But one business located just a few hundred yards from the former Altamonte Springs dump site has a well, according to an engineer at the Altamonte Springs Department of Public Works.
TCE's links to health problems are tenuous and currently under review by the EPA.
Studies have linked the chemical to cancer and liver damage in mice, but scientists disagree about the relevance of those studies to human health. TCE-contaminated wells in Phoenix and Tucson, Ariz., have been shut down, with multimillion-dollar settlements offered to people whose drinking water had been contaminated for decades. In Woburn, Mass., TCE was blamed for the deaths of 12 children, although the plaintiffs were not able to prove it in court; that story became a book and then the current movie "A Civil Action."
Kenon's deposition languished for months in court files, while neither the Sentinel or the plaintiffs told environmental officials about the possible contamination. Kenon says he has not been contacted by anyone other than Orlando Weekly about his deposition. Attorneys for the plaintiffs did not return a reporter's phone calls.
Steven R. Schooley, an attorney for the Sentinel, at first says he does not recall the Kenon deposition, which he attended. "There were a lot of different claims made in a lot of different depositions, some of which conflicted with each other and some of which conflicted with what is known," he said last week.
When queried again a few days later, Schooley says his "recollection is that the only thing he testified to taking out there was waste ink." That sums up Schooley's cross examination, in which he apparently tried to confuse Kenon and the court about the difference between the labels on the barrels -- which said ink -- and the barrels' contents when they were dumped, which Kenon said was water and used solvents, including TCE.
Sentinel spokeswoman Colleen Dykes takes the same approach when asked about the deposition. She cites Kenon's answers under cross examination -- in which he said the "waste TCE barrels" may have been returned to the chemical company -- as a contradiction.
"I guess my response to any questions regarding the Kenon deposition are, inconsistencies and contradictions in his deposition last year make it difficult to determine just what recollections he did or didn't have about events that occurred more than 20 years ago," she says.
Kenon explained the difference between the barrels' labels and their contents both in the deposition and to Orlando Weekly. But Dykes describes any effort to sum up Kenon's actual words as "a value judgment" that has no place in "objective" journalism. "So," she asks, "you're basically doing a story based on one man's opinion, you have no documented evidence, and you're covering the news and raising hell?"
When it comes to Good Homes Road -- where, according to property tax records, two private dumps operated alongside the county dump, and which is now the site of a transfer station where wastes are collected for transport to the new county dump on Young Pine Road -- documented evidence of anything is scarce.
County officials say they have no records of what was dumped there, or by whom. They cannot say for certain when the dump opened for business, nor exactly when it closed. They aren't even sure how many acres it covered.
Several subdivisions built in the mid- to late-1980s surround the old dump, with names like Shadow Run, Senna Hills and Rose Hill Lake. Residents there say they've been hooked up to the county water system since the buildings were constructed, which means their direct exposure to the possible contaminants probably is minimal.
But no one has ever looked for contaminants in the groundwater there. "No groundwater monitoring is required at the site by the state because `the dump` was closed prior to the regulations becoming effective," says Dan Morrical, chief engineer for Orange County's solid waste division.
Morrical was asked to research allegations about TCE dumping on Good Homes Road last fall. He talked to Billy Cummings, the site supervisor, who says he has worked there since 1966. Cummings said he's pretty sure the dump was converted to a transfer station around 1972, because that's the model year of the trucks the county bought. If that's true, says Morrical, that "makes it impossible for Mr. `Kenon` to dump anything there in the mid 1970s."
Cummings could not say with certainty that no barrels were dumped there before that, but Morrical says Cummings told him that any 55-gallon drums "would have raised a red flag."
"Basically I was told that `the dump` just took trash and appliances," says Morrical.
But as with the timing, no one knows for sure.
The DEP's Bostwick says that if his department decides Kenon is credible, Orange County will "have to make some determination as to the extent of what the waste site was, then draw up a groundwater monitoring plan."
Any search for TCE would likely begin with Kenon's estimate of where the barrels were dumped. Then test wells will be sunk. Because of the time that has passed, and the way TCE spreads in the groundwater, it could require numerous wells -- which cost a few thousand dollars each -- to locate any contaminants. More than 100 test wells were dug to find the contamination downtown.
The former Altamonte dump covers 13 acres at 300 Douglas Road, just northwest of the junction of I-4 and State Road 436. Most recently it was a batting cage and golf driving range leased to Legend Sports. The Las Vegas company that took over the business has since closed it; a restaurant sits out front now.
According to property records, the land is still owned by dump operator Allen Pyle of Sanford.
Kenon says at first he dumped the Sentinel's barrels at the site. Later, he says, Pyle required that he stack the barrels above ground. Kenon says the barrels were usually stacked two high, sometimes three, and he thinks some were removed from the site between trips. Kenon says he doesn't know where those barrels went.
Pyle did not reply to requests for an interview. But his attorney, Robert Murrell, insisted in a letter to Orlando Weekly, "`T`here were never any 55-gallon drums of liquid waste from the Sentinel dumped at the landfill on Douglas Road in Altamonte Springs with the permission of or to the knowledge of our client. Any barrels from the Sentinel were legally and properly disposed of with written knowledge and consent of DEP."
According to DEP records, Pyle opened the landfill in 1977 as a "class III" dump, meaning it was approved to take brush and yard trash. Hazardous materials were not allowed. But in 1981 the state's Department of Environmental Regulation, the forerunner to DEP, documented that some hazardous materials had been dumped there.
The dump was closed in 1984, and quickly became a headache for local fire officials, as underground fires broke out for several years. The department became concerned that its "surround and drown" method of extinguishing those fires could cause "‘Leachate' and find its way to the aquifer," according to a 1987 letter to the St. Johns River Water Management District from Frank Perry, Altamonte Springs' former emergency management bureau commander. "Our agency considers Pyle's Landfill a significant environmental concern and, furthermore, `it` may or could pose a serious threat to the public's health and welfare."
In 1986, groundwater monitoring began, and in 1987 Pyle was informed that four chemicals had been found, including vinyl chloride at 4 parts per billion. Vinyl chloride is a degradate of TCE, and is allowable at only one part per billion. Still, the amount of toxins found was modest. Pyle agreed to a cleanup plan with the DEP in 1991, records show. Monitoring continues.
The wells on the site may not be where Kenon says he put the barrels, though. A visit to the former golf range finds wells in the middle of the property, near its highest point. A DEP map shows another well in the northwest corner. There is also a surveyor's stake, indicating that development may be imminent.
DEP's Bostwick says his department had no previous information that TCE was dumped in the county landfill, but a deposition taken more than a year ago, also in the Sentinel case, "sort of intimated there was" TCE dumped in Pyle's landfill. "We contacted the Sentinel about that and they said they'd get back with us," Bostwick says. "We haven't heard anything lately."
"We work with Bill Bostwick on an ongoing basis," says the Sentinel's Dykes. "If he wants to know something all he has to do is ask."
Dykes also says the Sentinel followed all rules set by the dumps regarding anything the newspaper may have dumped there. In other words, if there is a problem, it's the county's, and maybe the dump owners'. She also notes that many people used the dumps, so any TCE found there in the future should not necessarily be linked to the Sentinel.
The newspaper has not always been so guarded in its editorial description of waste hazards. A May 1980 op-ed piece by Larry Agran (then an Irvine, Calif., city council member, later mayor and later still a presidential candidate) discussed the links between TCE and other chemicals, and cancer. That same year a Sentinel reporting team produced a series called "Water Wars." The headline over one article: "Chemical wastes could dump pollution problems on Florida." Both are now exhibits in the lawsuit against the newspaper.
Kenon does not recall everything about his job two decades ago. When confronted with information that the Good Homes Road dump closed perhaps five years before the Pyle dump opened, Kenon pauses to think. "We might have taken some out to the landfill," he says, meaning the new landfill on Young Pine Road. Then he says what anyone might say, asked to remember specific events from 25 years before: "I'm not for sure. I didn't make all the runs. I made most of the runs."
But he knows that what he says may cause trouble, and that the Sentinel is challenging the veracity of his recollection.
"I stand by my deposition," Kenon says. "Everything I said."
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