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For Immediate Release:  
For Further Information Contact:
June 1, 2005

Office of The Attorney General
- Peter C. Harvey, Attorney General
Division of Law
- Nancy Kaplen, Acting Director

 

Peter Aseltine
609-292-4791

 

Attorney General Harvey Sues W.R. Grace and Two Executives for Filing False Certifications about Asbestos Contamination at Hamilton Plant

TRENTON – Attorney General Peter C. Harvey today filed suit against W.R. Grace & Co. and two former company executives for falsely certifying to the New Jersey Department of Environmental Protection (DEP) in 1995 that any hazardous asbestos contamination at the company’s Hamilton Township plant had been cleaned up in accordance with state requirements. In fact, more than 15,000 tons of contaminated soil remained at the site when Grace closed the plant. Some soil samples contained concentrations of hazardous asbestos as high as 40 percent of the sample.

Attorney General Harvey filed the suit on behalf of DEP in Superior Court in Mercer County seeking civil monetary penalties against the company and the two individual defendants under the New Jersey Spill Compensation and Control Act (“Spill Act”) and the New Jersey Industrial Site Recovery Act (“ISRA”).

The Attorney General’s Office is reviewing whether additional legal actions, including criminal charges, can be brought against W.R. Grace and other defendants in connection with the Hamilton plant. The Office has requested that the U.S. Environmental Protection Agency (EPA) and other federal authorities share information from their investigation of W.R. Grace.

“We are seeking major civil penalties against these defendants who deliberately concealed the extensive asbestos contamination that W.R. Grace had caused at its Hamilton Township plant,” said Attorney General Harvey. “The defendants acted in complete disregard for the health and safety of the neighboring community and the future occupants of this site. Going forward, we will continue to review all new facts and all legal options available to the State in this matter.”

“We have zero tolerance for companies like Grace that, in this case, clearly failed to note asbestos contamination when reporting about environmental conditions at its Hamilton site,” said DEP Commissioner Bradley M. Campbell. “It is essential that the Attorney General take this action today to safeguard communities like Hamilton from companies that ignore their environmental responsibilities.”

The corporate defendants named in the suit are W.R. Grace & Co., its successor W.R. Grace & Co.-Conn., and Grace-Conn Successor, a fictitious successor in interest (collectively “Grace”). The individual defendants who allegedly made the false certifications for Grace are Jay H. Burrill, who was Environmental Coordinator for Grace at the time, and Robert J. Bettacchi, who was Vice President.

W.R. Grace’s Concealment of Asbestos Contamination

Grace is under federal criminal indictment on charges related to the operation of its vermiculite ore mine in Libby, Montana, where workers and residents in the surrounding community allegedly contracted asbestos-related diseases from the company’s milling of ore containing hazardous concentrations of tremolite asbestos.

Grace shipped several hundred thousand tons of vermiculite concentrate milled from ore at the Libby mine to the Hamilton plant from 1957 to 1991. Grace used the vermiculite concentrate at the Hamilton plant to manufacture products such as fire-retardant insulation, material for lightweight concrete, and fertilizer.

The complaint alleges that defendants knew that dust and other waste containing hazardous concentrations of asbestos fibers were generated by Grace’s manufacturing operations, and that asbestos fibers had contaminated the Hamilton plant and the soil at the site. The complaint alleges that although the defendants knew these facts, they falsely certified on June 2, 1995 that any hazardous substances discharged at the Hamilton plant had been cleaned up in accordance with DEP regulations.

The false representations were contained in two documents filed with DEP to meet requirements of ISRA triggered when Grace closed the plant: a Preliminary Assessment/Site Investigation and a Negative Declaration, each certified by Burrill and Bettacchi. Burrill and Bettacchi certified that the information submitted was true, accurate and complete. On the basis of those submissions, DEP issued a No Further Action letter for the site.

After the severe health problems came to light involving workers and local residents in Libby, the U.S. Environmental Protection Agency began testing at Grace plants around the country that used the Libby vermiculite ore. Soil samples taken by EPA in 2001 at the Hamilton facility showed asbestos concentrations as high as 40 percent. From 2003 to 2004, Amtrak and American Premium Underwriter Inc., which allegedly have ownership and successor liability for the site, excavated and disposed of 9,000 tons of asbestos-contaminated soil from the site and nearby areas under EPA supervision. It is anticipated that they will excavate an additional 6,000 tons of asbestos-contaminated soil this summer.

DEP has rescinded its No Action Letter and is working with EPA to address contamination concerns both on and off-site. The Department of Health and Senior Services has issued reports on two health consultations of the site and is currently attempting to locate and reach out to former employees to evaluate health implications of past exposure to former workers, their families, and the surrounding community.

The complaint seeks assessment of a civil penalty against each defendant under ISRA of $50,000 – $25,000 for each document – for submission of false information, and an additional $50,000 – for each day the defendant failed to correct the false information. In addition, it seeks assessment of a civil penalty against each defendant under the Spill Act of $100,000 – $50,000 for each document – for knowingly giving false testimony, documents or information to DEP, and an additional $100,000 for each day the defendant failed to correct the false information. The complaint also seeks attorney’s fees and costs.

>> W.R. Grace & Co. Complaint (919k pdf) free plugin

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