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From Products Liability Law Daily, August 25, 2017

Sherwin Williams sued over environmental contaminants at former paint factory site

By Georgia D. Koutouzos, J.D.

Individuals who live near the site of a former paint and varnish manufacturing facility in New Jersey filed a class action lawsuit in federal court this week against the facility’s owner, Sherwin Williams Co., alleging that the company knew of and yet failed to disclose the fact that the land comprising the site and surrounding area is contaminated with toxic, hazardous, and carcinogenic substances and did not take sufficient measures to prevent the contamination from being used in a manner that resulted in harm or threatened harm to class members’ property, health, safety, and welfare. Demanding a jury trial, the complaint is seeking compensatory and punitive damages, injunctive relief, medical monitoring, and litigation costs under federal and state environmental law (Lafferty v. Sherwin Williams Co., Inc., filed August 22, 2017).

Sherwin Williams Co. operated a paint and varnish manufacturing facility in Camden County, New Jersey, from the early 1930s until its closure in 1978. The company conducted its manufacturing operations—including the disposal of manufacturing waste products—on three distinct areas of land within the county. After the factory closed, all three of those areas were placed on the National Priorities List (NPL) and designated as Superfund Sites by the U.S. Environmental Protection Agency (EPA).

As part of its operations, Sherwin-Williams utilized and generated hazardous substances—including but not limited to lead, arsenic, benzene, barium, and pentachlorophenol, the complaint maintained. Asserting that the toxic and ultra-hazardous properties of these materials have been well documented, the complaint cited several studies showing causal connections between some of the substances found on the site and several different types of cancer. In addition, the complaint argued that the process by which Sherwin-Williams manufactured, stored, and disposed of paint and paint by-products had the effect of releasing and emitting toxic chemicals and hazardous substances into the ground, air, and surrounding environment. Over time, those hazardous substances have migrated into surrounding corporate, business, and residential properties, leading to the threat of cancer among residents of the area and others spending substantial periods of time there.

Sherwin Williams was aware for many years (much earlier than the plant’s closure in 1978) that the site and surrounding residential, commercial, and public recreational areas were highly contaminated due to the company’s past manufacturing operations, the complaint contended. Moreover, the company had full knowledge of the commercial, residential, and recreational construction that was taking place on the former paint factory site while all the time knowing that these developments were being built on unsafe groundwater, soil, and sediment levels. As such, the air, land, and groundwater contaminated by the company’s activities at the site have migrated for years and continue to spread to further surrounding areas, with hazardous chemical levels exceeding acceptable EPA and state environmental regulatory guidelines.

Therefore, hundreds of people who live, work, or otherwise are present in the area surrounding the site have been exposed to, inhaled, or otherwise ingested and/or come into contact with lead, arsenic, benzene, and other hazardous chemicals, which has caused them personal injury and will continue to cause them increased risk of personal injury in the future, inasmuch as long-term exposure to those substances cause effects on the bone marrow and can cause anemia and various forms of cancer, the complaint stated.

Causes of action. Sherwin Williams was or should have been familiar with the risks posed by disposing and/or burning toxic chemicals contained or used in the production of paint and the subsequent contamination that was created by engaging in such behavior, according to the complaint. Despite that knowledge, the company improperly disposed of hazardous materials and failed to adequately reclaim and restore the land used in its operations. Further, the failure to restore the land properly created an ongoing presence of contamination that has migrated outward from the originating site and has impacted the plaintiffs’ and class members’ properties, depriving them of the free use and enjoyment of their property.

Sherwin-Williams intentionally and/or negligently concealed and failed to disclose, and continues to conceal and fail to disclose, material facts concerning the nature, extent, magnitude, and effects of the exposure of plaintiffs and class members and/or their property to these toxic and hazardous substances. In addition, because of the company’s actions, hazardous substances have entered into the affected individuals’ bodies, property, air, land, and dwellings, thereby causing them an increased and significant risk to their health (including cancer), thus necessitating medical monitoring. As such, the company is liable for its actions under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) as well as applicable state law, including the New Jersey Spill Compensation and Control Act, the complaint alleged.

The case is No. 1:17-cv-06321-JHR-AMD.

Attorneys: Craig R. Mitnick (Mitnick Law Office, LLC) for Brad Lafferty.

Companies: Sherwin Williams Co., Inc.

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