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T & E Industries Inc. v. Safety Light Corp.

Decided: August 11, 1988.

T & E INDUSTRIES, INC., PLAINTIFF-APPELLANT,
v.
SAFETY LIGHT CORPORATION; USR INDUSTRIES, INC.; USR LIGHTING, INC.; USR METALS, INC.; USR CHEMICALS, INC. AND U.S. NATURAL RESOURCES, INC., DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Essex County.

King, Gaulkin and Gruccio. The opinion of the court was delivered by Gruccio, J.A.D.

Gruccio

[227 NJSuper Page 230] Plaintiff T & E Industries, Inc. (T & E) appeals from the trial court's dismissal of its complaint in which damages were sought for the contamination of its property. The contamination occurred more than 50 years prior to plaintiff's acquisition

of the property. Defendants, successor corporations of United States Radium Corporation (USRC), the company charged with dumping radioactive waste on the property, were successful on the post-trial motion to set aside the jury verdict on the grounds that it owed no duty to warn a subsequent purchaser and that the doctrine of caveat emptor barred recovery. This order also vacated a previous ruling by the court which held that absolute liability was applicable in this case. Upon this review, we are asked to consider whether dismissal of plaintiff's complaint was proper. We deem it necessary to recount detailed facts which provide the basis for this opinion.

During the period from about 1917 to 1926, USRC conducted a radium-processing operation in Orange, New Jersey. Utilizing a fractional crystallization process, USRC extracted about 80% of the radium from the carnotite ore which was brought by railroad from Utah and Colorado to the Orange site. The radium was sold commercially for $3,220,000 an ounce, primarily for medical purposes, but was also used onsite in a variety of commercial applications including the manufacture of luminous paint which was applied to instrument dials, watches and other products. The by-products of this operation consisted of both liquid and solid materials. The liquid waste was disposed of in the Orange sewer system. The solid waste, commonly referred to as "tailings," contained radium and was deposited onto the vacant and unimproved portions of the site.

Carnotite ore consists primarily of uranium, radium and vanadium. Uranium 238, first in the radioactive decay chain, contains an unstable nuclide which results in a series of decays creating other elements as the nucleus disintegrates by spontaneous emission of charged particles. The half-life of Uranium 238, the time required for a radioactive substance to lose 50% of its activity by decay, is 4.5 billion years. One of the products of the decay of Uranium 238 is Radium 226 which has a half-life of 1,600 years. Radium 226, in turn, decays to Radon 222 which is a naturally occurring radioactive gas having a half-life of 3.8 days. The decay of radon in the atmosphere results in the

formulation of radon decay products known as radon daughters or radon progeny which include bismuth, lead and polonium. The radon daughters are ionized alpha particles which can attach to walls, ceilings and, of critical importance, dust particles.

Inhalation of such ionized particles in excessive amounts can result in cancer. Gamma rays emitted by radium, as distinguished from radon, can also cause cancer. To the extent, therefore, that the concentrations of radium and radon in a given environment approach the levels of risk which have been scientifically and empirically verified, there is a danger to human health.

In 1926, USRC and other radium processors in the United States ceased all radium processing activities because richer ore was available in the Belgian Congo. The company permanently closed the Orange site but continued to produce fluorescent compounds at its New York headquarters. The property remained vacant until the mid-1930's when portions of the original structure were leased to various commercial tenants. On November 26, 1943, USRC sold the property to Arpin, a tenant from the previous four years, and thereby terminated its connection with the property.

While a tenant, Arpin became aware of USRC's past radium processing operations and its disposition of tailings onto vacant portions of the property. It built an addition to the rear portion of the building which covered part of the area where tailings had been dumped. Arpin did not perceive the structure as causing a risk to health, nor did a laboratory engaged to sample the tailings for what Arpin hoped might be valuable uranium. The property was sold in 1950 and, subsequently, title passed three times between 1950 and 1969. T & E leased the premises in 1969 and purchased it on June 5, 1974. The title search showed USRC's original ownership of the property.

In March 1979, the New Jersey Department of Environmental Protection (DEP) informed T & E that it believed levels of

radiation exceeding natural levels existed on the property. The DEP installed long-term monitoring equipment to measure the levels of radon, radon progeny and gamma radiation on the property. On November 20, 1979, DEP advised T & E that excess levels of radiation existed on the property. Access to T & E's oven room was restricted to 25 hours per week for any one worker because of the level of gamma radiation in that area. T & E was directed to keep a log of persons going into or through the contaminated areas. DEP asked for permission to require certain T & E personnel to wear monitoring devices so that specific dose rates could be ascertained. With regard to radon and radon progeny, T & E was told to "begin immediate remedial action."

T & E advised DEP on December 3, 1979, that it had painted a yellow line on the floor of the oven room around the area of gamma radiation, ordered signs warning employees not to remain in the affected area more than 25 hours per week and implemented a log report system. Dr. Kenneth Steidley, a health physicist, was retained to address the engineering considerations associated with the presence of radon and radon progeny. He recommended to Leonard Box, president of T & E, that tests be conducted on the air and soil to confirm or deny the State's data. T & E secured an instrument from the State to measure the radon progeny. The measurements disclosed results far exceeding the State limit of .01 working level. Dames & Moore, a consulting firm retained by Safety Light Corporation (Safety), also examined the premises. Their readings in May and June 1983 exceeded the State standards and the State measurements despite the remedial measures which had been taken prior to Dames & Moore's readings.

Box purchased a geiger counter, as well as air sampling and radon testing equipment. The test results were in general agreement with the State's findings but those findings exceeded the State regulations that set maximum levels for radioactive material. At the levels existing on the T & E property, an employee working in the oven room for a 30-hour week would

reach the exposure limit in 10.8 years. An employee in the assembly area would reach the State level in 3.18 years.*fn1

In light of these levels, Steidley recommended interim remedial measures. To that end, Box sealed all the cracks, expansion joints and the sewer drains in the oven room. However, this did not effectively keep radon out, although it slightly lowered the working levels. Steidley and Box then tried ventilation by the use of five fans. This was effective but could not be used when it was cold or very warm. The ultimate recommendation was removal of the soil from beneath and around the building. This could only be accomplished by tearing down the building which was not feasible -- the disruption of the business and cost were too great.

Steidley testified that as the amount of radiation to which an individual is exposed increases, the risk to human health also increases. The more radon progeny inhaled, the greater the damage. This opinion is shared by three scientific organizations: The National Council of Radiation Protection, The National Research Council, and The International Commission on Radiological Protection. Increased radiation and radioactivity lead to enhanced risk. During his testimony, Steidley read into the record an announcement by the Environmental Protection Agency (EPA), which asserted that "there is some finite risk to humans no matter how small the amount of absorbed radiation and that the risk at any given low level is directly proportional to the damage demonstrated at higher doses."*fn2

Box decided to move the T & E operations because of the perceived health threat to the employees and the prospect of the State compelling such a move. T & E needed a building

with approximately 18,000 square feet, and one that would be within a one-mile radius of the existing location. Adequate power and water were also required. Finally, a satisfactory building was located. Once the premises was altered and modified to meet T & E's needs, the operations were moved to the new location in July 1985.

During the period of 1917 to 1943, the following incidents and information were available to USRC to charge it with the knowledge that radium processing was dangerous. Florence Wall worked in USRC laboratory. Even prior to 1920, part of her job was to analyze every ore sample by calculating the amount of radium being extracted from the ore and measuring the amount of radon emanating from the radium. In performing her duties she wore a lead-lined apron for protection.

Some employees who painted the watch dials would dip their brushes into the luminous paint, apply the paint, then lick the brush after each application to make a fine point for the next application, thereby ingesting a minute amount of radium each time they licked the brush. It was discovered in the 1920's that, as a result, many of these employees contracted cancer. ...


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