First Cancer Lawsuit Related to Texas Railroad Tie Plant Begins

January 10, 2008

Owners of a Texas plant that makes railroad ties were grossly negligent in failing to provide safety equipment for workers handling toxic chemicals, a pollution prevention expert testified in the first of a flurry of lawsuits by people who say the factory caused their cancer.

The witness and lawyers suing BNSF Railway Co. say the company kept workers and residents of the small Central Texas town of Somerville in the dark about dangers from chemicals such as creosote and arsenic, some of which were buried, burned or dumped in creeks.

“The railroad had a dirty little secret, and they buried it in a place where they didn’t think anyone would look, listen or care,” said Jared Woodfill, a lawyer for a 50-year-old woman who blames BNSF for her stomach cancer.

Linda Faust and her husband, who has worked at the plant for more than 30 years, are seeking at least $6 million in damages.

The railroad’s lawyer, Douglas Poole, said there is no scientific evidence linking Linda Faust’s cancer to the chemicals used at the plant, and instead pointed to her smoking habit.

“She never worked at the tie plant,” Poole told jurors during his opening statement. “Her husband did. He’s fine.”

The trial in state district court is expected to last four weeks and is being watched closely as a bellwether for up to 200 similar lawsuits filed by Somerville residents and plant workers against BNSF and Koppers Inc.

BNSF is a unit of Fort-Worth based Burlington Northern Santa Fe Corp., which sold the plant to Pittsburgh-based Koppers in 1995 but remains its largest customer.

The plant has been a cornerstone of the economy in Somerville, 90 miles northwest of Houston, since it opened a century ago. In some families, several generations of men have worked in the plant, turning out telephone poles and railroad ties.

The plant takes raw lumber and infuses it with a tar-like mixture of chemicals to turn out ties that withstand weather and termites for up to 30 years.

Since the early 1980s, critics have blamed the plant for what they call a cancer cluster and birth defects such as infants born with cleft palates.

Texas health officials have found no unusual incidence of cancer in Burleson County, where the plant sits, but critics say the study was flawed and didn’t count people who developed cancer but moved away.

Linda Faust was diagnosed with stomach cancer in 1998, when she was 40, and doctors removed her stomach. She is thin, must eat or drink constantly, sometimes loses control of her bowels, and appears much older than she is.

She sat next to her husband, Donnie, behind their lawyers’ table as Woodfill outlined their case to the jury.

Woodfill said workers and residents were exposed to dangerous levels of coal-tar creosote, arsenic and dioxin, which are known or suspected carcinogens.

Safety instructions issued in the 1980s by several manufacturers of creosote urged companies to outfit employees in rubber gloves, face shields and in some cases respirators when working around creosote. A federal safety agency made similar recommendations after touring the Somerville plant in 1980.

Nicholas P. Cheremisinoff, a chemical engineer who has written several books on pollution and hazardous waste control, said he interviewed about six former workers at the tie plant who said they were never given any kind of protective gear.

They wore their own clothes on the job, then took them home where they could expose family members to toxic chemicals, said Cheremisinoff, the first witness for Faust’s side.

“They were grossly negligent and irresponsible,” he said of the plant’s owners.

But Poole, the BNSF lawyer, said he would call a Georgetown University epidemiologist to dispel any link between Faust’s cancer and the chemicals used at the plant. He said creosote exposure has been linked to skin cancer but not stomach cancer.

“She never set foot in the plant as far as we know,” Poole said. “She claims she got (cancer) from living more than a mile away. It’s a joke.”

According to records at the Texas Commission on Environmental Quality, the plant is still struggling to clean toxic waste from groundwater.

The Faust case was tried in September in the same court, but state District Judge Jeff Walker declared a mistrial when a witness mentioned the other pending lawsuits against BNSF and Koppers.

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