052: Taking Them to the Cleaners

Stella Case No. 052, Originally Published: 4 June 2003

Some people think the problem with outrageous lawsuits is so bad the government should step in. But sometimes the government is getting into the act itself.

The State of California has pulled out the big guns: it has sued a number of industrial polluters. The state says groundwater in the town of Chico is contaminated with perchloroethylene, otherwise known as perc or PCE, a common solvent used in dry cleaning since the 1930s.

In 1998 about 344 million pounds of PCE was used in the U.S. About 25 percent of that was used by the dry cleaning and textile processing sector; 50 percent was used in the manufacture of other chemicals, the rest was used in other processes such as degreasing. Ironically, its use has actually increased in recent years since it’s used in the manufacture of hydrofluorocarbons, the refrigerant used to replace chlorofluorocarbons in air conditioning, because CFCs are thought to deplete the ozone layer.

Still, the State Attorney General’s office has filed suits against:

• Vart Vartabedian, age 93.
• Bob Heidinger, 87, and his wife Inez, 83.
• Paul Tullius, 57, and his wife, Vicki.
• And many others, mostly elderly former dry cleaners. And also the City of Chico, because their sewers leak, causing decades-old PCE residues to seep into the ground.

“Whenever you’re suing someone who is older or who ran a mom-and-pop dry cleaners, you do have sympathy for them,” said Deputy Attorney General Rose Fua. On the other hand, she adds, “if somebody was 85 years old and they killed somebody, does the law not apply to them?”

Then how does the state explain the case against Tullius? The Air Force retiree bought a building in Chico in 1988 to house his old car collection. It’s now leased to a homeless shelter. He had no idea when he bought the building that it housed a dry cleaning business until 1972 and, if he did, it may not have occurred to him that it was something he needed to worry about.

That doesn’t matter to the state: they’re suing him anyway since he owns it now. The man he bought it from has “sort of become a friend, but I’m going to have to sue him” to protect himself, Tullius says. “And I suppose he’ll have to sue the person he bought it from.” He estimates it will cost him $75,000-100,000 in legal fees, not to mention countless hours of effort, to fight the state’s suit.

“I fought in two wars,” Tullius says. “I thought I’ve done everything right and now — can you imagine getting a bill like this for something we had absolutely nothing to do with? Can you imagine what that does to your life? I’m sort of thinking this isn’t the country I thought it was.”

Tullius aside, the others are indeed former dry cleaners. The state says they dumped PCE down the drain and caused the contamination. But the state doesn’t seem to have any proof of its contentions. Bob Heidinger, for instance, says his machines never dumped PCE. In a sworn statement, he says his machines recycled the PCE, and that the residue was collected in buckets and dumped in the trash, which was standard procedure at the time.

“It’s shocking that this should happen almost 30 years after we sold the business,” Heidinger says. “I’ve worked all my life. We did nothing to cause this suit. Where is the proof? We never did anything wrong.” He sold his business in 1974. The building it was in now houses a coffee shop.

How does the state respond? “We’ve identified who we think were the sources of the pollution,” said a state spokesman. “We’ve done quite a bit of investigation up there.” That makes the cases a matter of flimsy evidence versus the failing memories of long-retired small business owners, which is hardly a good way to get to the truth.

But surely the dry cleaners had insurance. These days, insurance doesn’t cover environmental cleanup, but 30-40 years ago it usually did. Unfortunately, most of the defendants in the suits don’t know where their decades-old insurance papers are. After 10-20 years, they figured they didn’t need to keep that sort of paperwork anymore.

The state doesn’t care.

“The groundwater in Chico is contaminated with PCE and someone has to pay for cleaning this up,” says Deputy Attorney General Fua — even though the state has already cleaned up Chico’s groundwater and declared it safe to drink. “If we don’t find the responsible parties, that means the taxpayers have to clean it up.”

So the state is going after a handful of people who likely don’t have millions of dollars anyway, and can’t defend themselves because they never imagined they’d need to take receipts and other documentation to court decades after they retired — papers they never dreamed it would be reasonable to need to have at their fingertips forever. “If they want to sue me, fine and dandy,” Vartabedian says. “All I can do is go broke.” Him, and a lot of other people who should be enjoying their retirement in peace.

Sources

• “State Is Suing Ex-Dry Cleaners”, Sacramento Bee, 28 April 2003
• “White Paper: Perchloroethylene”, Halogenated Solvents Industry Alliance, November 1999

Case Status

An interesting type of consultant came to the rescue of at least some defendants: “Insurance Archeologists.” At least one defendant who did find their old insurance agent got this reply from him: “The new record retention plan only requires that we keep records for seven years.” Sounds like malpractice to me if a regulatory agency can come after the companies’ clients 20 or 30 years later.

Bob and Inez Heidinger were lucky: they had sold their dry cleaning business 30 years before the state came after them. “We knew they had been insured but we had no proof,” said their daughter, Barbara Heidinger. “We had thrown away their old business records when we cleaned out the attic a few years earlier.” But an insurance archeologist found the policy in their old agent’s files. “Finding the insurance was a huge relief,” Barbara said. If the consultant hadn’t found the policy, “the State of California could have taken everything. My parents would have lost all they had worked for.”

Couldn’t the insurance company had found the policy in their records? Surely they have copies of all the old policies. Yes… but they have every incentive not to. And really, do the old owners even know which insurance company to ask? The court isn’t going to help either — not when they are not assured of the specific insurance company and policy number …and if the defendants have that, they don’t need the court order.

My 2021 Thoughts on the Case

Notwithstanding the discussion in the Case Status above, what I go back to is the state proving their cases rather than “We’ve identified who we think were the sources.”

That was an official state position, too. In one U.S. District Court for California’s Eastern District decision I found (the case citation is — take a huge breath — “CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Plaintiff, v. PAYLESS CLEANERS; College Cleaners; Heidinger Cleaners; Norge Village Cleaners; Cava, Inc., A California Corporation; Lobdell Cleaners; City of Chico; Norville R. Weiss; Janet L. Weiss; Paul A. Tullius; Victoria Tullius; Robert H. Heidinger; Inez N. Heidinger; 5th and Ivy, A General Partnership; Richard C. Peters and Ramona W. Peters, Individually and as Trustees of the Peters Family Trust; Betty M. Rollag; Randall Rollag; and Tami Rollag, Defendants. and Related Counter-Claims.”), comes this (emphasis added):

This action arises out of a two-mile wide perchloroethylene (“PCE”) “plume” located south of the central business district of Chico, California. On October 31, 2002, the California Department of Toxic Substances Control (“DTSC”) filed a cost recovery action against various individuals and companies alleging rights under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601 et seq. and state law based claims. The DTSC named several dry cleaning businesses as well as the property owners of the sites where those businesses operated upon its belief that the PCE emanated from those businesses.

Their “belief” that these are perhaps the people liable for the “plume” vaguely located “south of the central business district”?! Sure, that’s good enough to take their life savings! A bureaucrat “believes” they probably had something to do with it, so hand over the trust fund you set up for your grandchildren’s education, bub.

Now, I completely agree that businesses should be responsible for dumping hazardous waste into the land and water we all need to live. But the state needs to be absolutely sure they have the right people or corporations to make their “cost recovery” actions from, especially when they have unlimited resources funded by the very taxpayers they are supposedly doing this sort of “cost recovery” for.

But it sure doesn’t look like they are: the difference between a “Court of Law” and a “Court of Justice” is well illustrated here.

And, as the illustration above shows, these actions have continued on for years afterward, and for all we know they’re still targeting retired dry cleaners up and down the state if they “believe” they can get some money out of them.

Letters

Elaine, an attorney in Massachusetts: “Take me off your list. You are too ideologically anti-lawyer. Clearly not educated or wise. Maybe you would rather people shoot it out at high noon on High Street? Since when do you define what is appropriate for judicial determination?”

1. No, I won’t take you off TSA’s distribution; I didn’t put you there — you did — and the site’s Terms of Service clearly state that the maintenance of your subscription is your responsibility. If you want off distribution, follow the instructions provided in every issue.
2. Calling me names is, as you should have learned in law school, an ad hominem attack. Since you skipped class that day and missed that question on your final, here’s the definition: “Appealing to personal considerations rather than to logic or reason” (American Heritage). That means you don’t have a valid argument to counter the button I pushed, so you must resort to feeble attempts to discredit the source. Tens of thousands of readers would beg to differ with you on your assertion that I’m “clearly not educated or wise.”
3. Your “we must either have frivolous lawsuits or shoot outs in the street” is pretty silly, and nicely demonstrates your own level of education and wisdom.
4. And to drive that point home, are you really asking “since when” the author of a publication was allowed to state his opinion? And you passed the Bar?! And
5. I’m not at all “anti-lawyer,” I’m “anti-stupid,” whether the stupidity is committed by lawyers, plaintiffs, judges, goofballs on High Street …or my own readers.

Attorneys who are more part of the solution than part of the problem most definitely have a different view:

Mark, an attorney in Missouri: “I enjoy reading the Stellas, and cases like the bad hair day or the school valedictorian’s million dollar lawsuit, but I think those are relatively isolated cases that aren’t really typical of how the system works. And there isn’t any clear fix for these oddball cases other than laughing at them.”

Being entertained by the cases is not a bad reaction; better to laugh than cry, and entertainment is part of my mission.

Certainly the vast majority of lawsuits are quite valid — I’ve never argued otherwise. But if the silly cases are as isolated as you say, how is it that I (and many other publications and web sites such as Overlawyered and mlaw.org) can keep coming up with case after case after case week after week after week?

There most certainly is a problem, and there is a gigantic cost on our society because of it. That’s not something to just laugh at; it’s something that needs attention.

On to the case of the zoo elephants:

Pam in Virginia: “I thought your piece on the lawsuit to keep ‘Ruby’ and ‘Gita’ from being separated was quite interesting — more so as I had just read an article in the June issue of Smithsonian magazine about elephants. One point the article made regarding African and Asian elephants being kept together is that, while African elephants can carry a form of herpes virus, they are immune to it, but [can] transmit it to Asian elephants, who die from it. So maybe a lawsuit should be filed to keep the LA zoo from allowing contact between Ruby and Gita?”

That may make more sense.

Katie, a high school sophomore in California: “In your Stella Short about Ruby the elephant, you closed by asking whether we should insist that do-gooders and courts be the ones to judge actions made by ‘competent’ professionals. While I agree that the separation of the elephants is not a solid basis for a lawsuit, I was surprised at the implication that ‘do-gooders’ should leave things up to the professionals. Even solely based on the articles you have featured, it is clear that many professionals do not always make just or moral decisions, and this is especially evident regarding the treatment of animals.”

I used the word “competent” advisedly, but you left something else out: the actual question I asked was, “Or do we really insist that do-gooders and courts should countermand every trivial decision made by competent professionals?” The location of zoo animals surely is a pretty trivial thing, especially to someone who doesn’t have “standing” to sue (is not an affected party).

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