On September 3, 1992, the firm concluded a significant environmental case, in line with our interest in pursuing environmental litigation on behalf of individual victims of pollution. Dave Morris and John Parisi obtained a settlement on behalf of the Martin family in their case against the State of Kansas. The settlement included the purchase of a portion of the Martins' property, damages, litigation expenses, attorneys' fees, and response costs associated with medical monitoring and the cost of obtaining alternative water supplies.
In 1964, the University of Kansas began operation of a landfill for disposal of low level radioactive wastes, including radionuclides contained in an organic chemical solvent, primarily toluene or dioxane. The landfill is located less than 250 yards from Jean Martin's home and 160 acres of property. Over the years, radioactive and chemical wastes leaked into the groundwater beneath the dump site.
The Martins were aware of the presence of the KU landfill. In 1982, the Martins were told the landfill was leaking but were assured by the State of Kansas and the University that it would have no impact on their health or property. Until 1990, they were never informed of the extent of groundwater contamination at the site, or that radioactive and chemical wastes were migrating off the site from the back-hoe trenches. At that time, a newspaper reporter presented the Martins with documentation that concentrations of dioxane, a suspected carcinogen, had been routinely detected for nearly ten years within monitoring wells surrounding the landfill. A number of other chemicals, as well as radionuclides, were also detected in the groundwater monitoring wells. The Martins also learned that several surface water samples, taken from a small intermittent stream that ran from the landfill across their property, were contaminated with levels of dioxane which exceeded the maximum levels allowed by federal drinking water standards.
Dave Morris and John Parisi filed a lawsuit on behalf of the Martins in Kansas Federal District Court on July 24, 1990, to force a cleanup of the KU landfill. The suit was filed under the citizens' suit provisions of the Clean Water Act (CWA), 33 U.S.C. 1365, the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. ö 6972, and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. ö 9659, alleging that the KU landfill was leaking hazardous chemicals and radioactive nuclides into the groundwater and surface water in violation of federal law. The suit also sought response costs for an alternative water supply and medical monitoring. After Judge O'Connor of the Kansas Federal District Court denied the defendants' motion to dismiss these claims, the Kansas Department of Health and Environment (KDHE) and the Board of Regents entered into a consent decree, setting in place a detailed timetable for cleanup or "remedial action" to be undertaken at the KU landfill.
A second lawsuit was filed by the Martins in state court, seeking damages for diminished property value and the loss of use and enjoyment of their property. This suit was brought in Johnson County District Court using theories of trespass, nuisance, strict liability for ultra-hazardous activity, negligence per se, and inverse condemnation. A related administrative action was also filed for the Martins, seeking to intervene in the cleanup process as affected parties to assure that it proceeds on schedule.
Both the federal and state lawsuits, as well as the administrative proceeding, were settled. In addition to achieving a timetable for the cleanup of the KU landfill, the Martins were compensated for the expenses of the lawsuit, attorneys' fees, and a portion of their response costs. The State of Kansas also purchased the portions of the Martin property located closest to the landfill, allowing Jean Martin and her son, Steve, to escape residing next to a leaking toxic waste site.
The Martins have mixed feelings regarding the settlement. Even though leaving the land is painful for both Jean and Steve, all the Martins are proud that, through their efforts, a consent decree is finally in place between the KDHE and the Board of Regents. The consent decree provides legal assurance that the KU landfill will be cleaned up, and that contaminated groundwater and surface water will no longer be allowed to flow from the site.
