Judge Sides with Polluted Kansas Town Over Big Oil

September 25, 2008

After three days of deliberation in one of the longest jury trials ever held in Kansas, a jury in January left residents in a southeast city stunned.

The panel had decided that the city of Neodesha was not entitled to recover the costs of cleanup and damage from contamination caused by an oil refinery.

On Tuesday, the judge who presided over the 17-week trial gave the town new hope. He overturned the jury verdict and concluded that he had given the jury improper instructions.

Allen County District Judge Daniel Creitz said strict liability for the contamination was not a question of fact for the jury to decide but a question of law _ and that the city was entitled to judgment in its favor as a matter of law.

The jury should only have been instructed to determine damages to be paid by oil giant BP Corp. North America and its predecessors, Creitz said. He ordered a new trial only on the issue of damages.

The judge on September 22 gave BP 10 days to appeal his decision. BP spokesman Scott Dean said on September 23 that the company is considering its options, possibly including an appeal.

“We will continue to work on our cleanup program,” Dean said. “We already assumed full responsibility for addressing the contamination at the site and we remain committed through remediations actions deemed appropriate by the Kansas Department of Health and Environment.”

The original lawsuit was filed in 2004 on behalf of the 2,700 residents as well as government entities and businesses in the southeast Kansas city. The plaintiffs sought nearly $478 million for cleanup costs and damages, plus interest, as well as punitive damages.

Forty-seven witnesses testified and thousands of pages of exhibits were placed into evidence in the trial that began in late August 2007.

The contamination covers almost 70 percent of the town, including underneath City Hall, schools and hundreds of homes. Experts found groundwater pollution under 350 acres after the city spent $1 million to hire its own experts and drill test wells.

The refinery, which operated from 1897 until it was dismantled in 1970, generated wastes and byproducts include benzene, toluene, ethel benzene and exylenes, polyaromatic hydrocarbons and metals such as arsenic, chromium, lead and mercury.

Although some of the contaminants are known to cause cancer and other diseases, the lawsuit was not a personal injury case but instead sought property damages.

At trial, the defendants contended they were at least partly responsible for the groundwater contamination but were actively cleaning up the pollution under the direction of the Kansas Department of Health and Environment.

In his ruling Monday, however, Creitz said the company’s claimed cooperation with state health officials was not a defense to the claims of property owners for damages and other relief.

“Given the defendants’ admissions and the evidence here, no rational juror could return a verdict stating that defendants were not guilty of contaminating the groundwater underneath Neodesha,” Creitz wrote. “The contaminants involved in this case are some of the most dangerous known to mankind.”

The judge noted that many defense experts conceded at trial that it was the plaintiffs’ expensive investigation, after the lawsuit was filed, that identified the refinery pollution spreading beyond the plume identified by the company’s engineers and approved by state health officials.

“I had confidence in our case, and believed that ultimately as a result of our motion and the court’s ruling on it, that we would take a step closer to justice _ and I believe that is what happened,” said attorney John M. Edgar, who represented Neodesha in the lawsuit.

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