Document JN29v7QjrGn5a1n5EexXz4r7v

PLAINTIFF'S EXHIBIT FRANCIS X. OELLCTTl ATroaNSy DC.VCSJAC THE COMMONWEALTH OF MASSACHUSETTS ' DEPARTMENT OF THE ATTORNEY GENERAL JOHN W. Me CDHMACK GTATE OFFICE DUILDING ONE A3HBUi5TOM PLACE, EOBTON 02103 April in, ,1981 .. _ Charles Schwartz, Esq. Schwartz & Gordet Post Office Box 270 896 Main Street Walpole, Massachusetts 02031 Re: Tetrachloroethyleno ' Dear Mr. Schwartz: VJe have read and carefully reviewed your letter of March 4, 1981, in which you request information in.four categories: 1} specific facts concerning each instance of TCE leaching fr-xi Johns-Mansville pipes into water supplies in the Commonwealth; 2) facts or events constituting notice to Johnc-Mansvillo of the TCE problem; 3) the basis for the Attorney General's conclusion that TCS concentrations in Massachusetts water supplies constitute a breach of warranty through unreasonable risk of injury; and 4) proposaln or remedies for the TCE problem. This letter will address each of these points in turn. First, as discussed in our recent telephone convorsok1ca, the enclosed binder contains os'ies of the following documents, which set forth much of the documentary Informat;on rep.- ' 1 by you: . 1) A list of cities and --"".ss which have installs*.} vinyl-lined asbestos ...ant pipe, the mileage *:.' pipe installed in each cit" nr town, nsd the number dead-ends. 2) TCE test summaries categorized by region and town. The tests were conducted in the spring and summer of 1980, and formed the basis of the September, 1980' report by DEQE, a copy of which was provided t--- yon at our meeting on March 3, 1980. While these cloo:.to are relatively comp"--'-to, there may be come te.:.;rosalts which co not '1 -acted therein. CAPCO JEN 0023276 Mr. Charles Schwartz Re: Tetrachloroethylene Page 2 3) A list of cities and towns which have a) replaced their vinvl-lined pipes to remedy the TCE problem or b) are currently utilising flushing or bleeding to maintain concentrations below 40 ppb. 4) Miscellaneous reports or other documents which may be of interest to you. Second, in response to your questions regarding dates and the form of notice to Johns-Manville that warranties had been breached, our position is that Johns-Manville has been on notice of the problem of TCE leaching into water supplies of cities and towns which use the AC pipes for over a year. Letters from Johns-Manville to Rhode Island officials during investigation of TCE problems in Rhode Island in 1978-79 indicate an awareness of the TCE leaching problem. Discussion between Johns-Manville representatives and officials of the Massachusetts Department of the Attorney*General and the Department of Environmental Quality Engineering, in the spring of 1980, soon after the presence of TCE in Massachusetts water supplies had been identified, constituted further notice to Johns-Manville of this defect in the safety and performance of the pipes. Additionally, our letter of February 11, 1981, sent pursuant to G.L. c. 93A, 4 to provide an opportunity for negotiations between the parties, served ss notice for purposes of our breach of warranty claim. Ko feel that these circumstances indicate that se/ LcLent notice was provided to Johns-Manville of defects in tie pipes within a reasonable time. See goner all y, raids t o La v. G . D. 'Sea r 1 o r. Co., f> 2 111. App. 3d 344, 378 J3.LS.2d 3003 " (19 7"5'f. Third, we do not feml* .it is useful to set forth in a../ detail at this time our theory of liability in this case. In summery, however, we believe that Jchns-Mauvi lie knew or shoe].: have known at various points during the production history of vinyl-lined pipe that the use of TCE posed a risk of injury. Further, we believe that the r;tk of injury was thoroughly unreasonable in light cf the h: -awn facte concerning its advene: health effects, the contest of the TCE use in connection with ' public water supply equipment, and the complete failure by jonns-Manville to disclose the risk of injury. Finally, as to possible remedies for the numerous citiesana towns with unacceptable levels of TCE, several alternatives exist. - First, we would propose that Johns-Manville com.par.unto those cities and towns for the costs of testing and for the costs of bleeding, (.lushing, or ocher remedial, methods vi:: -h can effectively lower the level of TCE to acceptable standards. Second, the combi n .f i on of heal th, oo-ncnic and envir or.m.ont-al facta.:.: involv. .1 '1 ' most likely i-.u he it CAPCO JEN 0023277 Mr. Charles Schwartz Re: Tetrachloroethylene Page 3 necessary to replace the vinyl-lined AC pipes in some sites. Our current belief is that when test data is analyzed fully, the need for pipe replacement can be limited to a minority of the locations with extreme concentration ofthe chemical. While we are, of course, willing to negotiate the specific terms of a settlement agreement in this case, we need a commitment from Johns-Kansville that the basic remedial proposal outlined above is acceptable in principle. Because the risk to citizens of the Commonwealth is so serious, we are unable to agree to any settlement which does not contain the dichotomy of relief described above. Accordingly, we require a commitment by you by April 27, .1981 to enter into negotiations which contemplate such a dual remedy. Without such a commitment, negotiations would be fruitless. V?e are certainly in agreement with the belief expressed is: your letter that it would be in the interests of all parties to resolve this natter without litigation. However, as we discussed with you in our March 3, 1981, meeting, we arc constrained in carrying out settlement negotiations by the need to protect our cl.aims from possible statute of limitations defenses. Accordingly, we will need to file a complaint by. .April 27, 1981 unless Johns-Kcnsv.ilie agrees to waive the statute of limitations for a p'-r:--.d of fo'-.' months in order to allow for further settlement d: .eessior'': ; :tv?een the parties, as outlined. Please call me if you have any questions-. I hope f h :-nr from you by April 27 regarding the- statute of limitation:-; waiver and the basic sot f* omen':. -..reposal. Sincerely yours. JTK/cf Enclosure ydohn 'i'. Montgomery, Chief/' / Consumer .Protection Division Public P" "tection Bureau 7:: 7---i -171 CAPCO JEN 0023278