Litigation Support Case: Insurance Recovery

CASE: CPC International vs. Insurance Co.

TASK: Explain presence of non-spill site contamination
LOCATION: Rhode Island

• 6200 gallon PCE train spill
• Unidentified process water leaching basins
• Used special sample drilling techniques and timing
• Mobile lab sample analysis
• $18 million insurance recovery

The municipal well fields in Cumberland and Lincoln, RI, had been closed in 1979 due to contamination from chlorinated organics. Ten years of investigation under Superfund had determined that the groundwater contamination originated from a site two miles away. In 1974, a tank car spill of about 6200 gallons of PCE occured when the train engineer pulled out of the facility bulk storage area prior to disconnecting the hose of a tank car. The local fire department responded and washed down the area with water. This was believed to be the source of the contamination. However, there were other unexplained chlorinated organics including TCE present in the well fields.

In the early ‘90s, our client, CPC, which owned the site believed to be the source of the contamination, filed a lawsuit to recover cleanup costs from the facility’s insurance carrier at the time of the spill.

An initial ruling in favor of the insurance company had been reversed at the appelate level and the case was scheduled for retrial. First Environment was retained by CPC’s counsel to provide expert testimony regarding the appropriateness of the facility’s spill response given the standards of the time.

As we evaluated the data, however, it became clear that the contamination of the well fields could not be entirely attributed to the spill. During a site visit we identified several manholes that prior investigators had thought to be connected to the facility’s sewer system. Upon further inspection, we discovered that they were in fact covering leaching basins and further investigation of old facility drawings indicated they were part of a disposal system for process rinse water that predated the facility’s connection to the municipal sewer system. Rinse waters of this nature had the potential to contain low levels of solvents used in the production process.

We then needed to determine whether the leaching basins in fact could have provided a pathway for the unexplained contaminants. This requirement was complicated by the fact that the trial was looming and the area that required investigation was located within the highly flammable solvent tank farm and associated pipeline distribution system. This meant that special drilling techniques had to be used and that drilling activities could only occur when the facility was not operating to avoid exposure of a large number of personnel to the potential explosion risks. Over two weekends we installed borings and collected samples from the top of the tight silt and clay lenses that overlaid the course sands. We used our mobile laboratory equipment to analyze the samples and assist in determining the location of additional sampling required to delineate the vadose zone. In effect we found that the contaminants had flowed over the tight-soiled lenses and into the sands below until encountering the groundwater, much like the water in a waterfall cascades around the rocks until reaching the pool below.

These findings then complicated the insurance recovery litigation, as the disposal of rinse waters was not sudden and accidental as had been the tank spill. To assess the implications of this new finding, we modeled the transport of the rinse waters with and without the tank spill and were able to demonstrate that the massive amount of materials released in the spill had driven the rinse water contamination toward the well field. Further, we showed that without this driving force the contamination associated with the rinse waters would not have reached the well fields. This finding left the original claim intact.

During our trial testimony we demonstrated this and established that the actions taken at the time of the spill had been consistent with the standard practices of the time. Trial demonstratives that we prepared were critical to simplifying these complex concepts for the jury and supporting our expert testimony. Our trial assistance was also key in identifying a critical misinterpretation made by the opposing expert witness about the spill response knowledge generally available at the time of the spill. This, combined with our expert testimony, contributed to an insurance recovery of $18 million.