Why Should Delaware Care?
As Delaware continually braces for economic development, the effects of legacy contamination in parts of the state can pose risks for past and future workers and nearby residents. Industrial sites along the Delaware River and Delaware Bay, particularly on the outskirts of Delaware City and along the Route 9 corridor, have been key sources of significant air, land and water pollution. But they also provide many jobs for nearby residents — a balance that relies on oversight from state and federal regulators and lawmakers.
Occidental Petroleum, an international energy company that operated a chemical plant outside of Delaware City for decades, is now being sued by more than 100 former workers, contractors and family members who claim mercury exposure at the plant led to a litany of chronic health problems, and that management downplayed the risks to employees.
Former plant employee and Kent County resident Robert Blanchard filed the first personal injury lawsuit in June 2023, initiating a steady stream of cases being filed in New Castle County Superior Court. As of late July 2024, 111 cases had been filed, with more anticipated.
“These people still have clothing from when they worked at the plant that’s still covered in mercury,” said Tudor Farcas, an associate with Grant & Eisenhofer PA, the local law firm representing the dozens of plaintiffs, most of whom are Delaware residents from New Castle and Kent counties. “People have suffered with injuries, some for 30 years, and a lot of them had no idea until just this past year that this was the reason why they had all of these issues.”
Grant & Eisenhofer PA is working alongside Alabama-based Joey James Law on the Delaware lawsuits. The Alabama firm has pursued similar legal action against Occidental Chemical and other companies’ chlor-alkali plants in Alabama, Tennessee and Ohio, with plans to pursue cases in several other states. Together the attorneys are still seeking more Delaware plaintiffs. The Delaware cases have been assigned to New Castle County Superior Court Judge Sheldon Rennie.
Attorney: ‘Mercury was everywhere’
The Delaware City facility, which operated from the mid-1960s through the mid-2000s, used mercury to make chemicals like chlorine that could be used elsewhere to produce plastics. But, Farcas said, it’s not just that people were allegedly exposed to toxins like mercury during the operation, decommissioning and demolition of the facility, sometimes known simply as “OxyChem.”
“Nobody was ever really told this is a real issue,” Farcas said, noting that some people would bring family to the plant during “Take Your Kid to Work Day,” not realizing the potential risks of contamination from the mercury used to produce chlorine at the plant. Others recalled mercury “dripping off the ceiling” and onto their eyelids, he said.
“There’s a lot for us to still find out,” Farcas said, noting that the cases could be connected in a more streamlined process down the line. “These are serious injuries.”
Celina Cardenas, a spokeswoman for OxyChem, said in an email that the Delaware City plant “was operated, decommissioned, and demolished in a safe and responsible manner.”
“OxyChem disputes the allegations in the complaints,” she wrote. “We will defend our company against these claims.”
Attorneys argue in the lawsuits that Occidental and other defendants, including prior plant owners such as Diamond Alkali and contractors, engaged in “fraudulent concealment of mercury risks” by telling people that they could not be poisoned by the mercury used at the plant, that these companies failed to provide adequate protective equipment, planning and safety procedures, and that spills, leaks and other “system upset conditions” in plant operations led to the “penetration of mercury into plant structures and equipment,” among other claims.
Kelly Farnan, an attorney with Richards, Layton & Finger, the local law firm representing Occidental Chemical, Occidental Petroleum, Diamond Alkali and other defendants, has not responded to multiple requests for comment.
Grant & Eisenhofer PA has a record of securing settlements against companies and government bodies involved in major personal injury cases. One of its most recent class-action settlements was against Norfolk Southern following a major train derailment and controlled burn that exposed residents in East Palestine, Ohio, to toxic chemicals. Grant & Eisenhofer PA, along with other law firms, secured a $600 million settlement for impacted residents there.
The firm also represents U.S. military members impacted by water contamination at Camp Lejeune, where people living on the U.S. Marine Corps base in North Carolina have suffered from various types of cancers and neurodegenerative diseases related to tainted water dumped by the government into local storm drains.
Spotlight Delaware has not reviewed each individual Delaware case filed since summer 2023, but attorneys said many of the plaintiffs suffer from similar ailments from neurological, gastrointestinal, behavioral and musculoskeletal injuries including rashes, muscle spasms and heart problems as well as memory loss, night terrors and fatigue. According to the U.S. Centers for Disease Control and Prevention, exposure to mercury can result in a slew of toxic effects, particularly related to the nervous system and kidneys.
In a complaint filed by New Castle County resident Abigail Ide, she said second-hand exposure she experienced through her grandfather is responsible for a litany of health issues like depression, paranoia, balance issues and cardiovascular disease. The complaint said Ide was living with her grandfather who worked at the plant for 50 years, and was exposed to mercury and mercury vapors through his work.
The suit alleges workers would bring mercury home on their work clothes and tools, not knowing they’d been contaminated. There was also a lack of separating items that had been contaminated by mercury from regular waste, exposing employees each time they’d come in contact.
A hazardous waste site primed for reuse
According to the U.S. Environmental Protection Agency (EPA), the OxyChem plant at the Delaware City refinery was built by Diamond Alkali in 1964 to manufacture chlorine, hydrogen, sodium hydroxide and potassium hydroxide, chemical components commonly used in the plastics industry.
The site covers about 240 acres, the majority of which is considered marshland, and is nestled among a large industrial footprint that’s existed for decades on the outskirts of Delaware City. OxyChem purchased the property, which lies just northeast of the Delaware City Refinery (separately owned by PBF Energy) and borders the Delaware River, in 1986 and operated it until 2007.
Today, the decommissioned plant is one of just a handful of former industrial sites in Delaware — many of which now have strictly limited future uses because of legacy contamination — that could be redeveloped in an otherwise undevelopable coastal area. In 2017, Gov. John Carney signed a bill that opened up a select number of sites, including the former OxyChem plant, governed by the Coastal Zone Act for reuse and redevelopment.
A 2000 University of Delaware study indicated that a portion of the OxyChem site along the Delaware River “is fit for heavy industrial use” and that the OxyChem site owners were “willing to sell” to make way for a port needed to develop a blossoming offshore wind industry. No additional information about that possibility was immediately available in late July 2024.
The EPA categorizes the former plant’s footprint as a hazardous waste cleanup site, where ongoing remediation and monitoring has been governed by a consent order under the federal Resource Conservation and Recovery Act. In 2012, after most of the plant had already been demolished, Occidental Chemical Corporation entered into that agreement with the EPA to clean up soil and water contaminated by mercury as well as benzene, chlorobenzene and volatile organics. That agreement is reaching its final stages, according to an EPA spokesman.
From the late 1980s into the mid-2000s, state environmental regulators issued over two dozen violation notices to the company, including for emitting excess amounts of chlorine gas into the atmosphere, according to records accessed through the Delaware Department of Environmental and Natural Resources (DNREC) Environmental Navigator. In 2002, Occidental ranked 16th in the nation for onsite mercury releases, according to DNREC reports. Around that time, the company was also the state’s leading mercury polluter.
The company also has a historical link to a hazardous waste site that arguably sparked the EPA’s Superfund program, which oversees some of the most polluted places in America (including MetaChem, another chlorine plant across the street from OxyChem that just received millions in federal clean-up funding). In the late 1970s, homeowners in the Love Canal neighborhood in upstate New York found their homes had been built on a chemical dump site. Hundreds of residents were diagnosed with health issues ranging from cancer to birth defects like an extra row of teeth.
Hooker Chemical, which was purchased by Occidental in the late 1960s, dumped 20,000 tons of toxic chemicals in Love Canal for 11 years before it was sold by the company. In 1995, Occidental settled a case filed by the government for $129 million, covering the costs of remediating Love Canal.
Occidental, like many other chlorine producers, ultimately stopped using mercury in its processes and shifted to a different technology in the mid-2000s. Environmental groups like Oceana applauded that mercury-free decision in 2005, just a few years before the Delaware City plant would close.
Today OxyChem operates 21 manufacturing plants in 10 states across the United States, as well as in Canada and Chile.
Concerned about industrial pollution?
Are you concerned about industrial pollution at your place of work or neighborhood? Concerned about environmental violations that haven’t been addressed? Share your story with us at nstonesifer@spotlightdelaware.org.
