“Whenever it needed to be done.”
“Which is, approximately, a weekly basis?”
“Yeah, weekly. I’d say weekly.”
Schlichtmann did need an interpreter for Joe Meola. Although Meola, now in his seventies and retired, had worked for twenty years as the maintenance man at the Woburn plant, he claimed at his deposition that he did not understand English. Schlichtmann hired an Italian translator and the deposition went forward in Schlichtmann’s office. Meola denied emptying barrels into a pit. Nor had he ever dumped the contents of the degreasing tank—or anything else, for that matter—on the ground.
“Tom Barbas testified you would empty the degreasing tank on the ground,” said Schlichtmann.
“He is a liar,” replied Meola through the translator.
“Mr. Barbas testified that he would dump waste solvents on the ground behind the plant.”
“Good for him.” Meola clasped his head. “My head is already gone,” he said.
“We don’t want your head to go yet,” said Schlichtmann.
“I am seventy-three years old,” said Meola.
“You look wonderful,” said Schlichtmann.
“I look wonderful? If I come here another time I will have to go to the cemetery where the cypresses grow.”
4
Schlichtmann remembered the spring day, three years ago, when he drove out to Woburn and parked across from the Grace plant. He remembered how he’d wished he could go inside and look around, how its brick façade had looked to him like the wall of a small fortress then. But the door was opened now, and he was getting guided tours by deposition.
He learned that the Grace plant was, by most accounts, a fine place to work, providing you got along with Vincent Forte, the plant manager. Forte had ruled the plant like his own fiefdom for more than twenty years. Most employees were willing to live by Forte’s rules (which sometimes included doing outside work for Forte on company time) because the company paid good wages and offered generous benefits. Every Christmas the employees were treated to a party at a local restaurant. Behind the plant, on the five acres of overgrown fields that had once been farmland, the company had cleared away brush and built a sandpit for playing horseshoes. When Barbas developed an interest in archery, he and another employee had set up a target out back for practice, not far from where Al Love would sometimes chip golf balls. The company had installed a basketball hoop, as well as picnic tables so that employees could eat lunch outside on pleasant days. Joe Meola had started a vegetable garden, which he tended during his breaks and after hours, and soon several other employees began their own small gardens. But it was now clear to Schlichtmann that even while the company and the workers had transformed the area around the plant into a park and playground, they had also turned it into a toxic waste dump.
From current and former Grace employees, Schlichtmann heard that Tom Barbas was a neat and meticulous man and a conscientious worker. His high school yearbook recorded his pet peeve as “unshined shoes.” At the Woburn plant, management had commended him several times over the years for the orderly way he kept the paint shop. His job was a lowly one, but he was good at it and he did not seem much interested in advancement. Every day he would receive metal parts used in the construction of commercial food-packaging machines. These parts arrived at his shop covered with a film of oil, a residue from the machining process. Before painting the parts, Barbas would wipe off the oily film using TCE, which he obtained from a 55-gallon drum that stood in the paint shop. He would pump some TCE into a small can, into which he would dip a rag. He was supposed to wear rubber gloves, but some of the parts were small and difficult to handle with gloves on. After cleaning a part, he’d hang it in the paint booth, a device about the size of a closet, constructed of rubber walls. Against the back wall of the booth, a curtain of water flowed in a constant, recirculating stream. Barbas used a spray gun and enamel paints, which he would sometimes thin with TCE. The circulating water captured overspray from the paint gun and carried it to a trough at the bottom of the booth.
At the end of each day Barbas would scoop the congealed paint out of the trough and into a plastic tray. Then he would clean the spray gun with TCE in a five-gallon bucket. On a normal day he might accumulate a gallon or two of waste. During his first week on the job, Paul Shalline had shown him the gully near the back door of the plant where he was to dump the waste.
Other workers told Schlichtmann how they would routinely come to the paint shop to obtain small amounts of TCE from the 55-gallon drum. They used the solvent to wipe grease and smudges off the neoprene conveyor belts or to clean stains from the metal tunnels where the plastic film was shrunk around food products. One employee said that when he started work in the assembly shop in 1970, he asked his foreman what to do with the leftover solvent and motor oil that he’d collected in a five-gallon pail. The foreman told him, “Dump it out back.” Almost every day during the five years this employee worked at the Grace plant he had dumped waste into the gully.
Shalline, his memory now “refreshed,” as the lawyers would say, recalled Barbas’s suggestion about pouring waste solvent into an empty 55-gallon drum. Shalline had agreed to that suggestion, but not because of any special environmental concerns. “It was more practical,” Shalline explained in reply to Schlichtmann. “Winter was coming on and it would be more convenient to have it right adjacent to the paint shop, where Tommy worked. He wouldn’t spend all the time having to go outside.”
And yet Barbas had continued going out to the gully to empty his bucket of waste. This puzzled Schlichtmann at first, until he discovered that Barbas made a narrow distinction between paint sludge and the small containers of pure TCE, which he would use to clean metal parts. By Barbas’s lights, there was no harm in putting the paint sludge on the ground, even though it contained TCE. A meticulous man, he would shovel up the paint remnants after a few days, when it had dried, and dump it into an ordinary trash bin.
Another matter also puzzled Schlichtmann. If Barbas was, in fact, reluctant to pour solvent on the ground, why did he often help Joe Meola empty the contents of the fifteen-gallon degreasing tank, which contained pure solvent, into the gully? This act was on its face inconsistent, and yet Schlichtmann could never get Barbas to explain his reasoning. That puzzle remained unsolved.
Schlichtmann formed an image of Barbas growing into middle age as he worked at the Woburn plant. In 1967 Barbas was drafted into the army and sent to Vietnam, where he spent an uneventful year in the military police. When he returned to Woburn, he resumed his old job in the paint shop. He married and had children, and moved into a modest ranch house in north Woburn. His hair thinned and receded, and he grew stout. Al Love told Schlichtmann that Barbas would occasionally take over for him in the receiving department. But new routines seemed to make Barbas anxious, and when Love returned to work, he usually found the painter flustered and worried about having made a mistake.
Exactly how much TCE had the Woburn plant actually used? Schlichtmann could never get a straight answer to this. Grace corporate executives initially told the EPA that the plant had purchased just one drum of TCE. “Total amount used up by 1975,” Grace had reported. “Use discontinued after a single initial order.” This, of course, was false. Cheeseman himself had later amended the reply to four drums. Schlichtmann didn’t believe that, either. But apart from anecdotal accounts by workers, he had no proof. According to Cheeseman, the plant’s records of chemical use prior to 1975 had been “routinely” destroyed.
And then Schlichtmann discovered in the documents produced by Cheeseman a note dated October 30, 1973. It was written in a large, almost childish script, the letters awkwardly formed, with the initials “PS” at the bottom. Paul Shalline admitted that the handwriting was his. The note had been written in response to a telephone inquiry by a state inspector. It said: “Up ’til September; Used trichloro, 150 gallons.” To Schlichtmann, this could only mean that the Grace plant had used 150 gallons—slightly less than
three 55-gallon drums—in the first nine months of 1973. If that inference was true, it meant the plant had consumed four drums of TCE a year up until 1973, not merely four drums throughout its entire history. And that translated into fifty or more drums of TCE.
It was in the summer of 1973, Schlichtmann learned, that Grace’s policy concerning the use of TCE changed. And that change led to the pouring of a drum of TCE into a pit in the backyard of the Woburn plant. Schlichtmann pieced together the story as best he could from deposition testimony and documents produced by Cheeseman. It had begun when a Grace executive named Richard Stewart received a warning about TCE from the National Institute of Occupational Safety and Health. The warning had stated that TCE “is especially hazardous in ‘open bucket use,’ in which parts are brushed and dipped in the bucket of solvent.” Inhaling vapor from the solvent could cause eye irritation, cardiovascular and nervous ailments, and damage to liver and other body organs, said the warning. The institute planned to adopt a more rigorous standard for plants where TCE was used, one requiring formal inspections, emergency showers, and periodic medical examinations of employees.
In light of the proposed new standard, Richard Stewart decided that the safest and most economical course for Grace would be to eliminate the use of TCE wherever possible. Stewart sent a memo to all Grace plants recommending that they stop using the solvent. He asked the plant managers to report back to him on their actions.
In Woburn, Stewart’s memo ended up on the desk of the production manager, who in turn notified Stewart that the plant would cease using TCE by November. The production manager gave the task of phasing out the solvent to Paul Shalline, then head of the safety committee.
Months passed, but Shalline apparently did nothing, despite frequent reminders from the production manager. Then the manager noticed that a 55-gallon drum of TCE remained in the paint shop. Finally he lost patience. In a memo to Shalline, he wrote: “I assigned this project to you ten months and twenty-six reminders ago. Why couldn’t you handle it?”
Reading this ten-year-old memo, Schlichtmann almost felt sorry for Shalline. The Woburn plant had never had any policy or method for the disposal of such material, beyond dumping it onto the ground. Shalline, left to his own devices, had gone to consult with Barbas, who told him there were companies that would haul waste solvents away. Barbas testified that he had even given Shalline the name of a firm he’d heard about in Burlington. Shalline had said he would call the firm, but meanwhile he asked Barbas to move the drum of TCE outside, where a dozen or more drums of accumulated waste were lined up near the back wall of the plant.
Shalline admitted under oath that he never did call the waste disposal firm suggested by Barbas. The drums had remained outside until a year later, when a new addition was built onto the rear of the plant. In the course of construction, Vincent Forte asked the contractor to dig a pit for the disposal of construction debris and other waste. This pit became the “swimming pool” of Al Love’s recollection. According to Barbas, Paul Shalline had come up to him and said, “I want you to empty those barrels into the pit.”
“What have we been saving them for?” Barbas remembered asking. “I thought we were going to have somebody take them away.”
Shalline allegedly had replied: “The stuff is not hazardous. You can pour it. I’ll get somebody to help you.” Perhaps Barbas had looked dubious—he knew that the drums contained TCE mixed in with cutting oils and paint sludge—because Shalline had added, “After this, we’ll have them taken away.”
Barbas told Schlichtmann that he had watched from the back door of the plant as the drums were loaded onto the hydraulic tailgate of a red truck and lifted to the truck bed. The next morning, he saw the drums lined up at the edge of the pit, which Barbas estimated to be twenty feet wide and forty feet long. He and Joe Meola began emptying the drums into the pit by turning them on their sides, opening the bung holes, and watching as the contents drained out. They had emptied a few drums in this manner when Frank Kelly, the foreman of the shipping department, came to tell Barbas he had a paint job to do. Barbas departed. Later that day, he had walked back to the pit and stood at the edge, looking in. There was a pool of liquid at the bottom and some bung caps were strewn on the sloping sides, but he’d seen no drums at the bottom. Someone had rolled all the drums back to the plant—Barbas could see the marks in the grass and dirt—and stood them near the building. Several days later, the drums were gone. Barbas heard they had been sold to a salvage company. He did not think about the pit again until five years later, when Wells G and H were found contaminated with TCE.
And then there was the interring of the six drums later unearthed by the EPA, about which Barbas steadfastly claimed to have no personal knowledge. Schlichtmann deposed a Grace employee named Paul Kelly, the twenty-one-year-old son of Frank Kelly, who recalled seeing a backhoe dig a long trench behind the plant. According to Kelly, his foreman had told him to fill in the trench at the end of the day. Kelly had done so, working with another Grace employee. He’d seen seven drums—one more than was later dug up—lying end to end in the trench, which he estimated had been thirty or forty feet long and four feet deep.
By his own tally, Schlichtmann counted at least two pits, and possibly even more if the recollection of Bob Pasqueriella could be trusted. Pasqueriella recalled a conversation he’d had with Frank Kelly, shortly after the EPA began its investigation. “If they ever find out what is buried back there, we’re all in trouble,” Kelly had told Pasqueriella.
Pasqueriella asked Kelly what he meant. Kelly had said, “There’s twenty-one barrels buried back there, under the warehouse. They better not dig there.” But Schlichtmann would never find out what Kelly knew. Kelly had died of a heart attack not long after speaking to Pasqueriella. And Vincent Forte, who was reputed to have known everything that went on at the plant, had also died of a heart attack, on the eve of his second deposition.
Discovering the whole truth of what had happened at the Grace plant, Schlichtmann realized, was impossible. In the beginning, the truth had been obscured by a web of lies, evasions, and self-serving accounts from both workers and Grace executives. In the end, it still remained hidden by death and the vagaries of memory. But for Schlichtmann’s purposes, it really made little difference whether there had been two pits or three or four. He had uncovered more than enough to make his case.
5
While Schlichtmann was busy building his case against Grace, the federal investigation that he had set in motion with the help of Al Love was causing chaos at the Woburn plant. Barbas, Shalline, and four other employees, including a Grace corporate executive, received subpoenas to testify before a grand jury. On the plant floor, rumors traveled swiftly among the workers, who gathered in small groups and talked in low voices among themselves. Lawyers from Boston and the W. R. Grace office in Cambridge seemed to arrive every day. One after another, workers were summoned to the conference room for interviews. An air of gloom and secrecy hung over the plant. In the front office, lawyers searched through the files. Barbas and Shalline were often gone from work, called to Boston for more interviews. Word spread that they were now represented by criminal lawyers. Their fellow workers speculated in whispers about whether anybody would go to jail for dumping or for perjury.
Cheeseman, of course, found out that Al Love had been secretly talking to Schlichtmann and the U.S. attorney. Cheeseman appeared at the door of the receiving department one morning and told Love he wanted to see him in the plant manager’s office.
Love thought he had prepared himself for this moment, but he had a sick feeling in the pit of his stomach walking into the manager’s office. Cheeseman was seated there, along with the new plant manager, a man named Ulf Nordin, and a W. R. Grace in-house lawyer from the Cambridge office. There was also a stenographer present to take Love’s statement.
“Mr. Love,” said Cheeseman in a cold and formal manner, “the company has asked that you be present today to answer some questions. I want you to un
derstand that you’re free to leave anytime you want to. If you want to take a break, to go to the men’s room, to get a drink, or for any purpose, you’re free to do that. The company has asked you, however, to answer the questions that I have.” Cheeseman looked at the plant manager. “Just to be sure that it’s understood, Mr. Nordin, would you now ask Mr. Love to answer my questions?”
Nordin instructed Love to answer the questions. “You are aware what that means as an employee of Grace?”
Love was aware only that he was about to lose his job, but he nodded at Nordin and said, “Sure.”
Cheeseman asked Love when he first met with Schlichtmann.
“It was after May first,” said Love. “On the evening of May first, I went across the street to Anne Anderson’s house and told her of the dilemma my wife and I were in. She asked me if I would talk with her attorney.”
“What did you talk about with Mr. Schlichtmann?”
“I told him that during the deposition everything was going fine up to the point he started asking me questions about my family, and that was the only time you people were concerned about what I said. So many objections were raised.”
“I see,” said Cheeseman.
“My life has changed in such a fashion,” continued Love. “I told Mr. Schlichtmann the stories I’d heard. I felt as though no one at the plant was coming forward with information. I felt there might be some sort of punishment to me if I didn’t see someone and iron this out. He advised me to see the U.S. attorney.”
“The next meeting with Mr. Schlichtmann, was that scheduled by telephone?”
“I think he just appeared.”
“Was he driving that nice, new, shiny black Porsche?” asked Cheeseman.
“I think he was. He went over everything he’d asked me before. It was pretty much repetition.”
“He has that habit,” murmured Cheeseman, more to himself than to Love. Cheeseman knew that if Grace fired Love now, Schlichtmann would turn him into a martyr. Cheeseman could imagine the headlines in the Woburn Daily Times and The Boston Globe.
A Civil Action Page 20