Donaldson v. CENTRAL ILL. PUBLIC SERVICE

• Decision Date: 22 February 2002
• Docket Number: No. 89679.,89679.
• Citation: 199 Ill.2d 63,262 Ill.Dec. 854,767 N.E.2d 314
• Parties: Zachary DONALDSON et al., Appellees, v. CENTRAL ILLINOIS PUBLIC SERVICE COMPANY et al. (Central Illinois Public Service Company, Appellant).
• Court: Illinois Supreme Court

767 N.E.2d 314

199 Ill.2d 63

262 Ill.Dec. 854

Zachary DONALDSON et al., Appellees, v. CENTRAL ILLINOIS PUBLIC SERVICE COMPANY et al. (Central Illinois Public Service Company, Appellant).

No. 89679.

Supreme Court of Illinois.

February 22, 2002.

Rehearing Denied April 1, 2002.

Stephen R. Kaufmann and Charles J. Northrup, of Sorling, Northrup, Hanna, Cullen & Cochran, Springfield, David J. Rosso, Carol A. Ahern, Chicago, Daniel Bromberg and Junius C. McElveen, Jr., Washington, D.C., of Jones, Day, Reavis & Pogue, for appellant.

Thomas F. Londrigan, Alexandra de Saint Phalle, of Londrigan, Potter & Randle, P.C., Springfield, Devon Bruce, of Power, Rogers & Smith, P.C., Chicago, for appellees.

Justice FITZGERALD delivered the opinion of the court:

This is a toxic tort case. Plaintiffs are the parents of four children suing, on their own behalf and on behalf of their children, inter alia, Central Illinois Public Service Company (CIPS), the owner of a former manufactured gas plant in Taylorville, Illinois (Site). The plaintiffs alleged that certain acts or omissions by CIPS, and three of its contractors, during the cleanup of the Site caused their children to develop neuroblastoma, a rare form of cancer. The litigation spanned six years and included the exchange of hundreds of thousand of documents and more than 250 depositions of numerous witnesses. After a four-month jury trial, at which 77 witnesses testified, a jury returned a $3.2 million verdict for plaintiffs against CIPS. The appellate court affirmed the trial court judgment (313 Ill.App.3d 1061, 246 Ill.Dec. 388, 730 N.E.2d 68), and we granted CIPS's petition for leave to appeal (see 177 Ill.2d R. 315). For the reasons discussed below, we now affirm the judgment of the appellate court.

BACKGROUND

In this toxic tort case, plaintiffs allege that exposure to an environmental condition caused their children to develop neuroblastoma, a peripheral nervous system cancer. In most cases, neuroblastoma develops in young children and infants. Statistics show that 9 out of every 1 million children born develop neuroblastoma.

Taylorville, located in Christian County, is a town which recorded 520 live births in 1988. Statistically, a case of neuroblastoma occurs one time every 29 years in a community the size of Taylorville. Between March 1989 and August 1991, during approximately a two-year period, three infants and a teenager in Taylorville were diagnosed with neuroblastoma. Zachary Donaldson was conceived in December 1987 and was born on September 7, 1988. Six months later, in March 1989, Zachary was diagnosed with neuroblastoma. At the time of trial, Zachary was in remission from his illness. Chad Hryhorysak was conceived in April 1989 and was born January 12, 1990. Chad was diagnosed with neuroblastoma six months after his birth, in March 1990. As a result of his illness, Chad is paralyzed from the waist down. Erika May was conceived in February 1989 and was born November 27, 1989. She was diagnosed with neuroblastoma two months later, in January 1990. At the time of trial, she was in remission from her illness. Lastly, Brandon Steele was born on March 17, 1978. On August 9, 1991, at age 13, Brandon was diagnosed with neuroblastoma. Brandon died on January 19, 1993.

Plaintiffs claim that the statistical excess of neuroblastoma cases in Taylorville was caused by their exposure to potent chemical carcinogens released, in part, during the cleanup of the Site. The Donaldsons lived one mile from the Site, the Hryhorysaks lived three miles from the Site, and between 1985 and 1989 the Mays lived in several locations near the Site, the closest one-half mile away and the farthest eight miles away. During his lifetime, Brandon Steele lived two miles from the Site. We now turn to the Site.

Prior to the widespread use of natural gas, the United States relied upon gas produced from fossil fuels, generally coal, to generate heat and light. In 1892, Taylorville Gas and Electric Company constructed a gas plant on the southern edge of Taylorville. CIPS purchased the Site in 1912 and continued plant operations until 1932. During this 20-year period, CIPS produced gas at the Site through a commonly used gasification process. This process produced tar byproducts called coal tar. Coal tar was often stored in underground tanks and later sold for use as roofing tar, road oil, or weed killer. In 1939, CIPS decommissioned the Site. This included the destruction and dismantling of above-ground structures. However, large underground tanks and containers with 50,000 gallons of residual coal tar were left buried. CIPS used the Site for storage until its sale in 1961, at which time the 50,000 gallons of residual coal tar buried underground was not disclosed.

In 1980, Congress passed the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) (42 U.S.C. § 9601 et seq. (1982)) to facilitate the cleanup of hazardous waste sites. CERCLA imposed retroactive liability for the disposal of hazardous waste and ordered all companies that owned and operated hazardous waste facilities to notify the federal Environmental Protection Agency (USEPA). 42 U.S.C. § 9603(c) (1982). An internal CIPS memorandum, dated May 1981, indicates that CIPS understood this reporting provision, but determined that because the notification requirement was not "mandatory," there was "no advantage to be gained in prematurely notifying * * * because of the potential consequences of such a disclosure." Therefore, CIPS did not disclose to the USEPA the existence of the underground coal tar storage tanks at the Site.

In the early 1980s, the carcinogenic potential of coal tar gained increased publicity and concern in the utility and regulatory industries. For example, one newspaper article, entitled "Coal Gasification May Yield Cancer-Causing Chemicals," discussed coal tar and its cancercausing potential. CIPS internally circulated this article and noted that the issue was generating increased "concern at the national and state level." Additionally, a published study in the Handbook on Manufactured Gas warned that some chemicals in coal tar "are among the most powerful carcinogens known to exist." Aware of the risk, CIPS, through its environmental affairs department, conducted an independent on-site investigation of its manufactured gas plants and drafted a final report discussing the condition of, and potential risk at, each of its abandoned gas-manufacturing sites, including the Site. CIPS forwarded this report to its insurer and applied for "Gradual Environmental Impairment" insurance to cover "potential claims." CIPS did not report the coal tar sites to any state or federal agency or notify current owners of the potential risk.

In October 1985, contamination was discovered at the Site by its then-owner, Apple Contractors. A contractor for Apple Contractors, while attempting to place a private septic line in the ground for sewage disposal, noticed strong odors, discolored soil, and a dark viscous material throughout the soil. Unaware that the soil was hazardous, the contractor removed the surface soil and transported it to a farm in nearby Moweaqua, Illinois. At the same time the surface soil was disturbed, Taylorville authorities recorded complaints about strange odors near the Site and in the adjacent public park. Notably, the Site is bordered by private residences to the north, a wooded area to the south where some homes exist, and Manners Park, a public recreation area to the east.

Less than one month later, in November 1985, CIPS notified the Illinois Environmental Protection Agency (IEPA) that the Site contained buried contaminants. CIPS hired an independent contractor, Hanson Engineering, Inc. (Hanson), to complete a "remedial investigation/feasibility study" to assess the extent of soil contamination at the Site and the area south of the Site. Monitoring revealed extremely high concentrations of volatile chemicals on the Site, in the area surrounding the Site, and in the adjacent public park to the east. In some areas, monitoring detected soil contamination at a depth of 95 feet. A Hanson employee recommended "use of the lot south of the building be immediately prohibited." A second contractor, hired by CIPS to detect and minimize emissions, observed that the presence of such high levels of volatile agents, coupled with the Site's close proximity to residents living to the north, required "a strong effort to detect and reduce these emissions."

Soon after, CIPS met with the IEPA. The IEPA notified CIPS that it would review cleanup activities to ensure their adequate completion. Before beginning soil excavation, CIPS assessed the Site to determine the extent of contamination in the soil, tank, and groundwater, and to identify potential off-site contamination. CIPS called this assessment "Phase I." Coal tar may contain up to 10,000 different chemicals; CIPS tested for approximately 190 different compounds. This testing detected the presence of various carcinogenic compounds, including polynuclear organic (aromatic) hydrocarbons (PAHs) and volatile organic compounds (VOCs). Although contained in initial drafts of the Phase I report, risk assessment and health information was deleted from the final report submitted to the IEPA.

Approximately six months later, in July 1986, the IEPA issued a notice under section 4(q) of the Illinois Environmental Protection Act (hereinafter, 4(q) Notice) (415 ILCS 5/4(q) (West 2000)), a formal administrative order. The 4(q) Notice imposed deadlines and reporting requirements and required that CIPS conduct an "immediate removal action" to excavate the underground structures and other contaminated material on the Site before April 1987. CIPS was required to submit cleanup plans, including air monitoring, safety and quality assurance plans, and a feasibility study for the immediate removal action. Cleanup plans were developed by CIPS's contractors, approved...