Brockovich Takes On Another Industry’s Heavyweight—Exxon
By Michelle Logsdon and Robert Warne - January 11, 2002More than a decade after the Exxon Valdez spilled 11 million gallons of crude oil into Alaska’s Prince William Sound, the claims continue to spill forth as the big guns are called in to clean up the mess. Their names are Edward Masry and Erin Brockovich.
Masry is a partner at the law offices of Masry & Vititoe in Westlake Village, CA. He, and his legal investigator Brockovich, are partnering with Anchorage, AK attorney Michael Schneider to investigate health claims possibly linked to the Exxon cleanup in March of 1989.
These types of lawsuits are nothing new for Masry and Brockovich. The duo gained fame after a March 2000 movie named after Brockovich chronicled their landmark suit against Pacific Gas & Electric Co. (PG&E). The company was found liable for releasing toxins into the groundwater of Hinkley, CA causing significant health problems for hundreds of residents.
Today the team is taking on Exxon (now ExxonMobil) and its cleanup partners VECO Corp. alleging the oil spill cleanup caused chronic health problems for hundreds, maybe even thousands, of clean-up workers.
Approximately 11,000 people from across the country converged on Prince William Sound to help remove the North Slope crude oil polluting 15,000 miles of coastline. They worked 12-hour days for 14 days straight, then had seven days off. Some came as stewards of the environment, others came for the money; but many claim they left with much more than a good feeling and a pocket full of cash.
Since the spill, hundreds of workers have reported respiratory problems, some have nervous system dysfunctions, and others have died from cancer. According to a 1989 document of the Alaska State Workers’ Compensation Claim System, a total of 1,811 claims were filed by oil spill clean-up workers. Of those, 264 were respiratory illnesses, 44 were dermatitis, 34 were poisoning, and 235 were categorized as ill defined or other.
Masry and Brockovich want to talk to those people and anyone else who worked on the site and is suffering health problems now. Brockovich sent out a letter Oct. 25 seeking candidates for the lawsuits. "If you realize, after you read this letter, that your health problems could stem from chemical overexposure – chemical poisoning – during the cleanup, I encourage you to contact my office."
Masry and Brockovich created a questionnaire to send to potential clients. They will review those forms with the help of a toxicologist and create a list of plaintiffs. "Based upon the inquiries we have so far we probably will proceed," Masry told adjustercom.com. "It looks like we will have in the low hundreds of people who became permanently disabled or injured as a result of this."
It All Started With a Book and a Movie
The plight of these workers was brought to the attention of Masry and Brockovich by Marine Biologist Riki Ott. An Alaska resident, Ott was working as a spokesperson for the commercial fishing industry when she started writing a book about the spill and its aftermath. At first she focused on the environmental impacts. Later she looked at the effects on people. Last year, when she started to compile her data she noticed similar health complaints among clean-up crew workers. She believed they were consistent with toxic exposure.
She heard stories like that of Garry Stubblefield. During the cleanup Stubblefield operated a barge crane that sprayed high pressure, hot water on the coastline. He was surrounded by oily mist and exhaust throughout his two-month stint on the project. At that time he began to suffer from coughing, wheezing and shortness of breath. Stubblefield’s doctors determined that he had chemical poisoning and said he might eventually develop cancer. Stubblefield has not worked since the cleanup.
Ron Smith hauled oily trash off the beaches and transported beach crews in a small skiff. He remembers seeing oil vapors wafting off the water. Smith cleaned his boat daily with industrial solvents. He quickly developed chronic headaches. Later he suffered from depression, fatigue, achy joints, stomach problems and memory lapses. A chemical decontamination clinic discovered high levels of chemicals found in crude oil and cleansers in Smith’s blood. Smith was treated for chemical poisoning and has improved his health somewhat but not fully.
Ott took these stories, and several others, and produced a video that she sent to lawyers and media across the country, including Masry and Brockovich. She was hoping to find strong support from the legal community. Ott told adjustercom.com, "I figured if I asked for the moon I just might get it."
She did.
Yes, Oil is Dangerous But Not That Dangerous?
While Brockovich scans the nation for chemical poisoning victims from the spill, Exxon and some federal officials say she won’t find any that were actually poisoned by the oil.
The National Institute for Occupational Safety and Health (NIOSH) conducted three separate investigations of the clean-up efforts. According to its report dated May 1991, "Inhalation exposure to volatile components of ‘weathered’ crude oil was insignificant for those work situations evaluated."
Crude oil is composed of several toxic elements, most notably hydrocarbon compounds such as benzene, but most of these components, according to the NIOSH report, are significantly weakened after 24 to 48 hours of exposure to the marine environment. "The most toxic components in fresh crude oil evaporate quickly and would not have been of concern to those responding to the spill," said Exxon spokesman Tom Cirigliano.
Some workers and their families disagree. Sandy Elvsaas told the Los Angeles Times that her brother Tim Burt steam-cleaned the oil tanks at the spill site. She said his lungs were covered with oil and began to fail according to his doctors. Burt was taking painkillers for his terrible headaches but after awhile they stopped working. He had mentioned to his sister that he wanted to die. In 1995 Burt died of a drug overdose. "He figured he had nothing to lose," said Elvsaas. "He was dead already."
NIOSH investigators point out in their report that the "weathered" crude oil is potentially hazardous if it touches skin. "There was still concern that the crude oil, even in its ‘weathered’ state, might still pose a health risk from skin exposure (dermatitis and skin cancer)."
Jim Reynolds of Hampton, VA knows that all too well. Reynolds told the Los Angeles Times he worked as a mechanic on oil-skimming boats at the spill. After three months on the project he developed a swollen, itchy rash that resurfaces to this day if he gets too hot or sweaty. The rash was diagnosed as a reaction to the oil.
Of the 1,811 workers’ compensation claims filed by clean-up crewmembers, 24 turned into lawsuits over toxic injury. Eight of those cases were dismissed and seven were settled. Frank Sprow, Exxon’s vice president of safety, health & environment, said in a prepared statement, "Fewer than 25 of the 15,000 workers have filed suit alleging health problems arising from their involvement in the cleanup. These claims, which are no longer pending, were highly individualized, revealing no pattern in terms of symptoms and no evidence of a cause and effect relationship."
Hidden Documents
But some people think a pattern did emerge among the workers and residents of Valdez: consistent complaints of upper respiratory infections. The NIOSH report acknowledges the pattern but attributes it to a virus, "Upper respiratory infections among workers were reportedly common, their spread presumably facilitated by the crowded living conditions." The illness was dubbed the "Valdez Crud."
Accurate medical records for the ill workers were difficult to obtain. NIOSH was unable to distinguish between the Anchorage hospital records of oil spill workers and those of patients not involved in the cleanup. Routine medical testing of the workers was considered but not implemented because it was deemed unnecessary.
Yet during Stubblefield’s case against Exxon, his attorney Dennis Mestas uncovered documents showing crewmembers visited the hospital 6,722 times for respiratory illness. That number may include more than one visit per patient but if not, then nearly half of the people working on the spill suffered from the same malady.
Because most of the workers on the site were VECO employees, some sources say the company made it difficult to obtain health records for the clean-up crew. "I am not aware of any time during the spill that this company refused to give information to the officials who requested it," Jamie Slack, vice president and manager of personnel services for VECO, told adjustercom.com. "That is not how we do business."
"Tide Just Wouldn’t Cut the Grease"
VECO, as the organization in charge of the cleanup, is as much under the gun as Exxon. Brockovich and Ott believe many of the long-term health problems of the workers can be traced back to the dispersants and solvents used to clean the oil off of the beaches and wash the crew’s protective equipment.
Leona McJemsey worked in the decontamination unit where she did the laundry for the oil recovery technicians (ORTs). She used industrial cleaners like Simple Green and De-Solv-Itâ
to clean their yellow rain slickers, hard hats, gloves, and rubber boots. McJemsey suffered from sore throats while working at the cleanup. Afterwards she was sensitive to chemicals such as perfume and often had dizzy spells and hives. McJemsey settled with Exxon in 1994 for $10,000 according to the Anchorage Daily News. She died from cancer two years later.
Several different solvents and cleansers were used including Simple Green, De-Solv-Itâ
, CitroClean and Inipol. Industrial cleaners like these contain 2-butoxyethanol "a potent lung irritant when inhaled at any level," said Brockovich.
Exxon provided the workers with Material Safety Data Sheets (MSDSs) for each of the chemicals to be used during the cleanup. The MSDS explains the short- and long-term health effects that are possible through overexposure to that chemical. The MSDS for 2-butoxyethanol describes it as a skin and eye irritant that is poisonous if inhaled or ingested. Overexposure to 2-butoxyethanol can damage the blood, kidneys, central nervous system and lungs.
During the cleanup Phyllis La Joie volunteered to do the same work as McJemsey in the decontamination unit. Cameras were not allowed in most areas of the cleanup but La Joie worked on a barge where should could take pictures so she made a scrapbook documenting her work. "They showed her working in a non-ventilated laundry room," said Ott. "In the pictures you can see Simple Green bottles on the shelf." In a court deposition La Joie said, "Tide just wouldn’t cut the grease." La Joie also said her life has been ruined by her act of good faith in 1989. She now has diabetes, emphysema, asthma, an enlarged liver and problems with her intestinal system.
"They were working with very, very strong solvents," said Masry. "Imagine how strong a solvent must be if it’s going to take crude oil off of an object. These solvents were probably far more dangerous than the crude oil itself."
Not only were the chemicals dangerous in and of themselves, some workers say the way they were handled could have made them lethal.
Safety Questions
La Joie admits she rarely wore a respirator in the decontamination unit because they were not available.
"When this disaster occurred, of course naturally what Exxon, and not only Exxon but everybody, wanted was to clean it up as fast as possible," said Masry. "A lot of people jumped into the breach, including Exxon, without really saying to themselves, ‘Well, wait a minute are we getting into more hot water by just jumping in here or should we wait for the equipment to arrive.’"
Everyone involved in the cleanup agrees the spill was unprecedented in size and scope but Exxon and VECO officials say safety was still top priority. Sprow said, "Worker safety has always been an absolute requirement for us [Exxon]."
"This was not a rush job," said Slack. "Every possible thing was addressed for safety equipment. For this size of effort, there were no corners cut on safety. Safety was of the utmost concern."
Yet carrying out the commitment to safety on site was a different story in some respects. The NIOSH report confirms that equipment was not always available or workers chose not to use it.
The standard issue of Personal Protective Equipment (PPE) for each worker included: one pair of heavy cotton coveralls; one Tyvekâ
suit; one set of rain gear (pants and jacket); one pair of deck shoes; one personal flotation device; one pair of boots; six pairs of wool socks; one hard hat; one laundry bag; one pair of safety glasses; five pairs of oil resistant gloves; and five pairs of cotton work gloves. NIOSH said gloves were often in short supply and workers often took off the Tyvekâ
suit because it was too hot. "The wearing of PPE was not consistently enforced from work site to work site," said NIOSH. "When PPE was worn incorrectly, worker’s skin became visibly contaminated with ‘weathered’ crude."
Masry said workers may not have been following the rules because of a lack of training. During a meeting in April of 1989 key government, union, state, and industry officials reviewed the situation and determined that it was not a hazardous waste cleanup. That designation would have required 40 hours of training. Instead workers received four hours of training.
"They didn’t have time for a week’s worth of training," said Masry. "You can imagine the chaos that must have been going on when these millions of gallons of crude oil were coming up in the ocean, on the beach, on animals. Someone in the government said lets just waive the requirement. They really should have been a little more careful, but you can understand their predicament."
The Aftermath
Exxon points out that for a cleanup of this size their safety record is commendable: there were only two fatalities during the project. VECO officials make the same point. "We had 10,000 employees working at the time of the spill and we were responsible for them 24/7," said Slack. He says most of the injuries filed under workers’ compensation actually happened during non-working hours while employees were participating in extracurricular activities.
Since the spill, Exxon has paid more than $300 million to workers and Alaska residents "directly affected by the spill," said Cirigliano. The cleanup itself cost Exxon over $3 billion. A recent federal appeals court overturned a 1994 jury decision ordering the oil giant to pay $5 billion in punitive damages to commercial fisherman and other Alaska residents and businesspeople. The appellate court said $5 billion was excessive.
In Ott’s opinion it’s difficult to say what amount is excessive. "Exxon paid $300 million back in 1989 because the press was hanging around and there was obvious short-term damage. But the long-term damages haven’t been compensated for yet," she said. "Basically the $300 million in 1989 was like putting lollypops in our mouths so we wouldn’t whine to the press. If they don’t want us to whine now they need to give us some more suckers."
Lessons Learned
Masry said it would probably be about two years before any of the cases go to trial. Currently, he and Brockovich are working on a letter to send to legislators concerning the availability of safety equipment for disasters like the Exxon spill. They propose having a central storage unit with full sets of equipment ready to respond to future emergencies. "We really think that there should be a central location because the Exxon Valdez may happen again—we don’t know. We just think it is a good idea," he said.
Masry hopes to gain government support for emergency preparedness but some accidents, like the Exxon spill, are unfathomable and difficult to predict. The Exxon spill was a model cleanup in some respects but many lessons were learned from the mistakes made. Congress is using that knowledge to deal with the country’s latest unfathomable tragedy—Sept. 11. A decade-old slew of claims are helping the government prepare for the possible onslaught of claims resulting from the current cleanup at Ground Zero. | 
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