Air Apparent

BEFORE CHARLES AND TRACY POLLOCK moved into their San Antonio home with the backyard that bordered a city-owned landfill, they wanted to know if they might encounter any problems due to gas from the dump. “It's just methane,” the city told them. “It's no health hazard.”

That was in 1992. Two years later, their daughter, Sarah, was born. At age three, Sarah was diagnosed with leukemia.

The Pollocks sued the city, contending that, while Tracy was pregnant, benzene from the landfill leaked into their house. This exposure, they argued, caused Sarah's condition.

At trial, the Pollocks presented evidence that the city knowingly created and maintained a “continuing nuisance” by allowing benzene and other toxic gases to migrate from the landfill onto nearby properties and by failing to remedy the situation. A city employee responsible for monitoring and maintaining the landfill from 1992 to 1996 testified that the city ignored her recommendation in 1994 that test probes be installed in “backyards along the perimeter of the landfill to verify that methane is not migrating.”

And, despite reports in 1994 that methane detection was inadequate, evidence disclosed that the city waited three years before installing a new system. Still other testimony showed that the city knew methane was migrating into the surrounding neighborhood — in fact, gas had been detected at the Pollock residence — yet no one did anything about it.

In the meantime, the city told First Federal Savings Bank that “no environmental concerns exist.” As further dramatic proof of the city's willful disregard for the situation, the plaintiffs' attorney presented a 1983 memo from a city employee saying that “[b]enzene is a suspected carcinogen. All wells exceed acceptable levels •”

Several witnesses testified to how the benzene from the landfill caused Sarah's leukemia. Using data from monitoring wells, experts created a methane-to-benzene ratio for estimating the amount of benzene in and around the Pollock's home when Tracy was pregnant with Sarah. Tracy testified that she continually smelled odors, which, according to expert testimony, was likely landfill gas of the same concentration and makeup as the gas measured near the home.

Even San Antonio's expert conceded that the couple had been exposed to very high benzene concentrations. Finally, Sarah's physician testified that the girl's leukemia was caused by significant exposure to benzene through her mother during pregnancy.

The jury found in favor of the Pollocks and awarded $7 million in personal injury damages to Sarah, a sum for future medical care and $29,000 for damage to the Pollocks' property.

On appeal, the city of San Antonio argued that the evidence did not establish any intentional acts by the city nor did it implicate benzene from the landfill as the cause of Sarah's leukemia. The Texas Court of Appeals, however, rejected the city's arguments, finding that the trial produced more than ample testimony and other evidence to support the verdict.

[City of San Antonio v. Pollock, 2004 WL 1835770, Tex.App. Dist.4, Aug. 18, 2004.]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.