WHO IS THE ENEMY?

Defendant, UNITED TECHNOLOGIES CORPORATION Pratt & Whitney Group, is a Connecticut corporation that possesses, maintains, and runs an engineering facility in northwest Palm Beach County adjacent to the Corbett Wildlife Management Area (“Corbett”).

13. Attention to the accumulation of brain tumors in the Acreage began with data self-reported by current and former Acreage residents, ranging from 2005 to 2012, indicating brain, head, and CNS tumors increasingly above expected rates:

16. The DOH provided the following erroneous update information on diagnoses occurring since 2009 in an April 2014 email to the Palm Beach County Commissioners (who were inquiring on behalf of a large developer): “brain cancers” diagnosed in the Acreage from 2008 through 2011 totaled twenty-one (21) cases of which seven were malignant brain tumors, and the remaining sixteen (16) were ostensibly borderline or benign brain tumors. It noted that none of the twenty-one (21) were either benign or malignant tumors of the central nervous system (CNS) and that all of these rates were normal. This is false for the following reasons:

17. Since the April 2014 email to the Palm Beach County Commissioners, the DOH has not acted on resident inquiries and significant additional contamination data provided to it:

a. When the families asked DOH to explain how its 2014 numbers made sense, the DOH epidemiologist in Tallahassee emailed the director of Palm Beach County Health Department stating she would provide an answer by October 1, 2014. DOH has still not provided any answer.

23. Testing in the Acreage where brain tumor victims resided revealed the following contaminants

a. Numerous non-naturally occurring radioactive contaminants in the backflush soil including americium-241, beryllium-7, cadmium-109, cesium-137, tin-126, and vanadium-48, plutonium-239, all uranium and all thorium nuclides. (“Backflush soil” samples come from the area of each victim’s yard where
their residential water filtration system deposits the water used to flush the system’s filters).
b. At several of these homes where radionuclides remain present at above background levels, significant numbers of copper, lead and chromium are also present. Copper, chromium, lithium and niobium are all particularly high at the Tvenstrup home in soils, roof dirt, and indoor dust.
c. In particular, Americium-241 is over one hundred times background in the plumbing scale within Kevin’s home. The scale on windows facing due north, Kevin’s bedroom window, contains uranium that is indicative of modest contamination by enriched uranium nuclear fuel. The isotopic ratios indicate a 46% degree of enrichment because the presence of uranium-235 is above 45% of the total uranium number.

24. The DOH also found cesium-137, a fission product, in the soil of every case home that it studied but one. In several homes, it found it in several locations. At DeCarlo’s home, it was found in all five of the five samples analyzed. Although the DOH expert admitted he never reviewed the data to see trends at the case homes, the DOH and DEP issued a report stating the levels were not above the background…

26. The rare contaminants listed in paragraphs 23 through 25 above are uniquely associated with the sort of business engaged in by Defendant at its Palm Beach County (PBC) Campus, created by improving what was previously vacant land in 1955…

34. At the UTC fence-line in Corbett, plutonium-239 was present at a significant level…

45. Defendant is the lone local industry (i) to have had its engineers who worked with its materials to experience a disproportionate number of brain tumors…

48. The DOH’s August 2009 “Acreage Cancer Review” discussed above at paragraph 14, later termed a “Phase I’ study, confirmed a significant increase in pediatric brain tumors. Despite the fact that the report noted that the rate of brain tumor diagnosis was escalating every three year period, it ignored the community’s concern that adults were diagnosed at an alarming rate in 2008-refusing to even study those numbers until the 2014 email discussed above.

50. Foreshadowing the inherent limitations of the approach the DOH would take, prior to beginning that study, the Director of the Palm Beach County Health Department announced that it was unlikely that the cause would ever be found as such cancer clusters were “often” designated without anyone ever finding a cause. Brain cancer clusters are not “often” designated.

52. For the environmental portion of the case control study, the DOH compared the water and soil at the case homes with the water and soil at the homes the DEP selected as controls, homes that were adjacent to the cases (their neighbors). It concluded that the area was generally safe and that there was no causal agent found because it falsely stated that “there was no significant difference between the cases and controls.” This was a false and
misleading for three reasons…

57. The DEP and DOH tested the water subject to recharge by canals at the case and control homes only one time. Surveying over 59 private wells just after declaring the cluster in 2009, they noted an elevated level of gross alpha radiation at several homes an indication that more specific testing for gamma and beta radionuclides should be done. But they never attempted to learn what had been in the water in the past by testing the filters within the residences’ water filtration systems, the backflush soil, or any other media such as the sediment that exists in common household plumbing fixtures including conveyance pipes and toilet reserve tanks.

64. The DOH dismissed the potential that the Defendant’s operations had any impact on the Acreage on the illogical rationale that the PBC Campus is over five miles away, despite the DOH’s knowledge that glioma tumors have been associated and researched in jet engine manufacturing for decades and its knowledge that contamination at the campus could reach the Acreage:

65. The DOH knew that one of the contaminants lingering in the PBC Campus water table since the mid 1960’s was buried thoriated nickel (TD nickel), which was not subject to clean up efforts until 1986 and was never subject to agency assessment.

a. The contaminated soil was in the process of being removed before the two-day site visit attended by a DOH trainee and his supervisor. In fact, UTC began removing the material over the holidays, well before a DOH training health physicist appeared on scene to monitor the clean-up on January 12…
c. When the material was “discovered” in 1986 and reported by Defendant to the DOH, the DOH immediately recognized that Defendant had violated the existing regulatory framework and needed to remove the soil; but in undue accommodation to Defendant, it inquired of the NRC whether the material could remain on-site or truly required abatement — a pretense purposed to keep the DOH from having to be the “bad guy” when it comes to local, prominent industry…
e. Within weeks of beginning the investigation, a DEP official emailed DOH stating that it did not appear UTC was a likely cause and yet there is no assessment of any sort supporting that conclusion. At that same time, the DOH hired a new Chief of Staff, Robert Siedlecki, who had worked for UTC’s counsel (the Gunster firm) in the past and before that worked with a Hartford Connecticut firm on technology transactional work. During the investigation he had at least two conversations with UTC counsel about the investigation, including calling UTC counsel to let them know the investigation was over and that DOH had not found anything.
f. Neither agency ever considered the possibility that contamination from UTC was ever moved off site from UTC to the Acreage despite the fact that there was knowledge that UTC had neglected barrels in Corbett Wildlife Management area before…

66. Moreover, the potential that Defendant caused the presence of the benzopyrene or any of the radioactive contamination revealed by DOH’s limited investigation of the case homes was ignored, on the dubious distance rationale, despite several additional concerns about Defendant:

a. Contemporaneous financial statements for United Technologies stated that the company has identified over 700 sites throughout the world for which it may have had some liability for damages caused by environmental contamination. Of those, it had resolved fewer than half, and the PBC Campus is not one of those sites for which Defendant has resolved liability.
b. In addition to failing to mention the radioactive materials clean-up or the duration of time any of the contamination had remained on site, the DOH fact sheet fails to note that the investigation and clean-up performed by Defendant has been the subject of criticism by groups including those whose reviews were sought out by the DEP when reviewing Defendant’s proffered risk assessments including the University of Florida’s Center for Environmental and Human Toxicology as well as the United States Department of The Interior’s Geological Survey (USGS).
c. The Florida DOH was keenly aware of the fact that Defendant was studying various materials it worked with at its Connecticut plant to see if they caused any increase in brain tumors in its own workforce.
d. The Chief of Staff, Robert Siedlecki – who testified that the investigation was of personal significance to himself because he knew people personally affected and that no stone was to be unturned – remembers speaking only to two individuals in addition to DOH members about the Acreage investigation which was unfolding, Michelle Damone and UTC counsel.
e. Michelle Damone is the former President of the Indian Trails Improvement District, the local level governmental entity for the unincorporated area of the Acreage. ITID manages the many surface water canals and impoundments that recharge the Acreage home water wells, impoundments & canals directly influenced by any UTC run-off into the Corbett Wildlife Management Area Damone, in a very public campaign to relieve the perception of a cancer cluster’s existence in the Acreage, created the Acreage Community Focus Group which was staffed by various members from the community. Originally it was to be termed the Governor’s Task Force but in order to side -step sunshine requirements, her contacts at the governor’s office told her to make it a community focus group; and this group replaced the victim’s families as community-agency liaisons.
f. Damone’s lone contact at the DOH was Robert Siedlecki, friend and former Gunster counsel. Siedlecki was allegedly told that Damone “hand-picked” a former Pratt Whitney employee, Andrew Narcus, to be on the group and to draft a mission statement prior to the group’s first meeting, where he was duly elected the Chair. Despite the repeated discussions concerning PW, and Narcus’ own records noting PW should be investigated, Narcus never announced his prior employment at any meeting.
g. Narcus testified that while he was never asked by UTC to influence the investigation, he admitted that the failure to disclose his prior employment created a reasonable concern that he had been compromised, or perhaps even taken some sort of payment – which he testified did not happen but would be a reasonable interpretation.
h. In fact, Narcus’ first e-mail to Damone about the “Governor’s Task Force” came the day after UTD was sued by the Acreage homeowners and the day after he, Narcus, clipped the newspaper article and preserved it.
i. In that same month, UTC attorney (representing it in the aforementioned litigation) called the DOH Chief of Staff and spoke to him about the investigation. He was promised status updates and was called by Siedlecki personally to report “it was all over and nothing was found”.
l. The Director of the DOH at the time, Lisa Conti, who has a Masters in Public Health but whose background is entirely related to veterinary medicine, directed the investigation by first contacting the DOH Bureau of Radiation Care & Control Chief, John Williamson, and directing him to explain to the Acreage families why the elevated gamma readings in their water filters was due entirely to naturally occurring material, even though the DOH did not ever see the testing that concerned the residents or had any testing performed to see if it was indeed naturally occurring.

67. Other than citing to the fact that DEP has monitored the clean-up of the site performed by Defendant and noting the distance of the site from the community, there was no other attempt by the DOH to allay concerns about the site. And the DOH and DEP continued to ignore the possibility that the cluster and the company were directly connected to each other even when they announced that they failed to find any other cause for the cluster even though it was the DOH personnel that first raised the concern. The lone explanation for this is undue influence by UTC itself. Since the end of the study, UTC reversed a twenty-year cycle of downsizing in PCB to announce increasing presence and job opportunities. Since the end of the investigation, UTC has announced plans to new jobs and millions of dollars in economic benefit to PBC by reinvigorating its industrial presence and by creating a new industry in Palm Beach Gardens.

68. The aquifer underneath the Acreage moves southeast away from the western edge of the UTC PBC Campus and into the Acreage…

72. Defendant has used the previously referenced radionuclides; metals including lead, cadmium, and barium as well as semi-volatiles; and oil-based fuels that generate benzopyrene contamination in its operations at the PBC Campus. Its testing operations cause emissions of perchlorate to water and air.

75. In the course of its activities, Defendant has used radioactive by-product materials and source materials at its PBC Campus, as follows:

a. The licensed use of americium-241/strontium-90, cadmium-109, cesium-137, cobalt-56, cobalt-57, cobalt-60, gadolinium, hydrogen-3, iridium-192, krypton-85, lead-210, manganese-54/cobalt-58, nickel-63, promethium-147, strontium-90, radium D&E, rhodium-106, and thallium-204;
b. Source material including the licensed and unlicensed use of thorium dioxide as 2% of thorium-inclusive nickel alloy;
c. Source materials including the non-licensed use of thorium-dioxide and other species of concentrated thorium;
d. Source materials including the non-licensed use of uranium dioxide and other species of enriched uranium and depleted uranium;
e. Unlicensed use of plutonium.

76. Nuclear materials were provided for Defendant’s use at the PBC Campus either

a. via the United States government either by entrustment for a particular project or via the deed and sale of formerly utilized sites such as the Naval Weapons Reserve Area, also known as the former Air Force Plant 74; or
b. internally by subdivisions of Defendant.

77. While some of the present-day nuclear contamination in and around the UTC PBC Campus is not explained by UTC’s Florida licenses, as most of those permits allowed the possession and use of only “sealed sources” and none allowed on -site burial, UTC also had access to nuclear materials for programs exempt from AEC licensure:

a. Such exempt projects had little to no restrictions on transfer and included (i) any project for use of nuclear material on a government site or transfer therefrom and (ii) contracts to work on nuclear material to be used in government owned vehicles or vessels.
b. One of UTC’s exempt – site projects was Suntan, a liquid hydrogen project housed at Air Force Plant 74 located on UTC’s PBC Campus which saw explosives caused by liquid hydrogen and flourene, as well as other accompanying materials.
c. The government vehicle or vessel exemption applied to the formerly-classified Fox Project, incorporating Pratt and Whitney’s Aircraft Nuclear Propulsion work, including the Nuclear JT-11 Turbojet Power-Plant Project that designed a nuclear power plant containing a lithium-cooled solid-fuel-element type reactor coupled to six modified Pratt & Whitney Aircraft J-58 Mod. 1A turbojet engines.
d. Those two projects, designed to use exempt nuclear fuels, were reportedly the two projects for which the isolated location of the Palm Beach Campus (the Florida Research Development Center) was first intended.

78. Furthermore, UTC has demonstrated that it did not comply with the Florida licenses that it did have when it buried materials in its scrapyard even though its own internal memoranda, submitted with its permit application, stated it would not. Regulations clearly never allowed for Defendant, a manufacturer, to bury such materials…

80. Defendant’s employees have worked on projects designed to use or to test mixed fuels including uranium compounds at the UTC PBC Campus in furtherance of both Defendant (and Defendant subdivision) proprietary projects and government contract projects.

81. Defendant has used the above-referenced radionuclides in its operations at test stands located on the western edge of the UTC PBC Campus, a portion of the campus where the groundwater runs southeast at a velocity and trajectory that would carry and has carried contamination into the Acreage community during the time KEVIN has lived in the Acreage.

82. Based on contaminant reporting in the 1980s, the UTC PBC Campus merited designation as, and was at various times slated to be, an EPA Superfund site, which would have entailed “a record of decision” and cleanup plan that was authored by, executed by, and performed by EPA. A Record of Decision (ROD) is a public document that explains which cleanup alternatives will be used to clean up a Superfund site. The ROD
for sites listed on the NPL (NPL Site Listing Process) is created from information generated during an EPA-conducted Remedial Investigation/Feasibility Study (RI/FS).

83. Instead, Defendant exercised influence through the state agency, the DER, to avoid the sort of government investigation that should have accompanied the preparation of an agency-authored record of decision and instead all clean-up of the property was performed under RCRA, which the state agency, the Florida Department of Environmental Protection (DEP), had just been authorized to monitor:

a. In order to avoid exposure for the full extent of its clean-up liability and to avoid the disclosure of its use of several hazardous and radioactive products, Defendant exercised influence on the DER through then DER employee Rick Reis to have the clean-up, and more importantly investigation, performed by Defendant with limited EPA oversight;

b. While still working for the DER and coordinating the second of Defendant’s consent agreements, Rick Reis received a memo from the U.S. Air Force requesting that he provide the Air Force an Enforcement Log so that it could be aware of the actions of its contractor. Reis informed the Air Force that the regulatory agency lacked the manpower to provide such a log. Defendant then sent Reis a memorandum advising that Defendant lacked the manpower to ensure compliance with the consent orders he had negotiated on behalf of the agency. Within weeks, Reis stopped working for the agency and began work with Defendant, leaving what he admits was a considerable knowledge gap behind him.

84. Shortly after securing its ability to maintain control over the site, Defendant first reported the presence of some nuclear material on site to DOH and to DEP.

85. Rather than dispose of source and by-product material responsibly, Defendant has

a. buried that material in unlined shallow burial pits together with other hazardous materials, many of those burial sites flooding prior to clean-up and contaminating the L8 surface and ground water that accumulated and continuing to leach into the Acreage surficial aquifer in times of heavy persistent rains;
b. burned that material in unlined shallow burn pits together with other hazardous materials, many of those burn pits flooding prior to clean-up and contaminating the L8 surface and ground water that accumulated and continuing to leach into the Acreage surficial aquifer during heavy persistent rains;
c. repeatedly failed to maintain and dispose of that material in the manner required by federal and state regulations, thus mishandling the source material it was licensed to use and, thus, violated regulations designed to limit public exposure;
d. since possessing that material, failed to use and maintain them safely, emitting them into the surface and ground waters in Corbett and into the Acreage by routine misuse, dumping and neglect…

87. Defendant impeded research aimed at determining the cause of a disproportionate cancer rate for its PBC Campus employees found in an initial independent study:

a. Circa 1980, Defendant hired the University of Miami to perform an incidence study, which demonstrated that the amount of employees who died of certain types of cancer (brain, skin, and testicular cancers and certain leukemias) who worked at the PBC Campus, significantly exceeded expected proportions;
b. While these types of cancers are associated with exposure to radiation, Defendant held back radiation-related data in the information it then provided the researchers of the National Institute of Occupational Safety and Health (NIOSH) who were performing a follow-on study. Defendant informed the NIOSH researchers of exposures only related to non-radioactive materials, improperly limiting the data the researchers would use to assess correlations between the cancers and workplace exposures.

88. The releases caused by the Defendant’s mishandling of radioactive materials violated the applicable standard of care set forth in the regulations found at 10 C.F.R. § 20.1301 – 2 because they included unlicensed materials used in an unlicensed operation, a per se violation of the entire regulatory regime, constituting a “nuclear incident”…

97. Regarding hazardous materials and metals only, Defendant, since the mid-1980s, has been subject to certain requirements pursuant to its RCRA licenses as defined above and has failed to meet its obligations because it delayed clean-up, failed to conduct reasonable risk assessments, and failed to post notice in the library located within the Acreage as required.

98. The discovery of Defendant’s responsibility for contamination of the Acreage has been hindered by intentional, negligent, inconsistent and inaccurate reporting to the state regulatory agencies by Defendant…

112. From 1957 through 2009, and perhaps even until today, Defendant has breached its duty of care by allowing the soils and waters of its operations to become contaminated and to emanate these hazardous materials and metals beyond the boundaries of its property into surrounding areas including the Acreage…