Lawyer wants to test for toxins in Donora

Donora Historical Society photo

Smoke billows from the old zinc works in Donora.

It’s up to a Washington County judge to decide whether a group of Mon Valley property owners can proceed with their lawsuit against U.S. Steel Corp. over the Donora Zinc Works’ alleged legacy of heavy metal contamination.

Judge Michael J. Lucas heard arguments Wednesday on the company’s motion for summary judgment, seeking dismissal of the civil complaint. His ruling is pending.

The property owners who brought the suit allege the zinc works – which U.S. Steel subsidiary American Steel & Wire operated from 1915 to 1957 – emitted fine particles of hazardous substances including zinc, cadmium, lead and arsenic that now must be removed through professional remediation.

In one among a number of arguments U.S. Steel’s lawyers made in requesting the dismissal, they pointed to the statute of limitations on the lawsuit’s claim under the Hazardous Sites Cleanup Act. The state law allows parties to bring a civil action within 20 years of discovering the release of a hazardous substance.

The steelmaker’s attorneys allege that period lapsed decades ago, pointing to a report prepared the year after a temperature inversion trapped heavily polluted air in the valley around Donora, killing at least 20 people and leaving thousands more ill.

“Here, the release of arsenic, cadmium, zinc and lead was discovered at the latest in 1949 when the United States Public Health Service released its final report describing the emissions and reporting on the findings of such emissions in air sampling data,” attorney Kathy Condo wrote in a filing.

Lawyers for plaintiffs Louise Kowall and Evelyn Vehouc, both of Donora, and Donna Kopecek of Charleroi, whose child and grandchildren live in a home she owns in Donora, argued the suit should proceed.

“The fact that this risk began many years ago, but has never been fully understood, does not eliminate plaintiffs’ rights,” attorney Michael Jacks wrote in another filing.

The lawsuit names U.S. Steel and USX Corp. – the name the company adopted from 1986 to 2001 before reverting to the previous one – as defendants. It seeks designation as a class action, with the named plaintiffs as proposed class representatives.

It cites a study published in March that reportedly found “elevated levels of hazardous materials including arsenic, lead, cadmium and zinc” in soil seven miles from the zinc works, specifically attributed to the former mill.

U.S. Steel’s lawyers also asserted the other three claims in the lawsuit – negligence, nuisance and trespass – are also barred by a two-year statute of limitations because the plaintiffs “knew of the alleged contamination on their property more than two years prior to filing the lawsuit on July 7, 2017.”

Condo’s filing noted Jacks discussed soil sampling with the local historical society in March 2015 and sought permission from property owners the following month to conduct sampling on their property.

He provided a toxicologist’s expert report and sampling data to the plaintiffs, who weren’t his clients at the time, in September 2015.

Condo argued it wasn’t necessary for the plaintiffs to have the expert opinion to trigger the two-year window on bringing those claims.

She also pointed to “widely known and available” information about the source of the alleged emissions dating back to lawsuits that garnered publicity in the 1930s.

Jacks maintained the various historical materials she cited wouldn’t have alerted his clients to the contamination in their properties, or to the former zinc works as the alleged source.

For his clients, he wrote, “the problem of hidden and dangerous heavy metals lingering on their topsoil and in dust in their homes was a problem totally unknown to them until, at the earliest, testing and analysis showed there to be a potential problem in September 2015 and, more likely, until those analyzed results were linked to the smelter by the March 2017 article.”

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