[No. 31] North Andover, Massachusetts: Synthetic Turf/Crumb Rubber Infill and Site Plan Review Criteria - Heat Island Effect and Impact on Water Quality. SynTurf.org, Newton, Mass. July 2021.First, a word about Site Plan Review process. It is an animal all to its own – apart from the better known special permit process. In some communities, SPR process is serious and thoughtful. For example, as set forth in the SPR regulations of Malden, Massachusetts (Section 12.12.140): The purpose and intent of SPR is “[t]o ensure that the design and layout of new development will not be detrimental to surrounding land uses. The intent of the Site Plan Review process is to regulate rather than prohibit uses through reasonable conditions which may be recommended by the Site Plan Review Committee (SPRC) concerning the location of buildings, signs, open space, landscaping, parking areas, access and egress, drainage, sewage, water supply and fire safety and similar site plan related issues.
A more progressive version of SPR criteria is found in Section 9.03 of the zoning regulations of Watertown, Mass. https://www.watertown-ma.gov/DocumentCenter/View/3364/ZONING-ORDINANCE--Amended-12112018?bidId= . Subsection 7 (Environmental Sustainability) requires that proposed developments shall seek to diminish the heat island effect; employ passive solar techniques and design to maximize southern exposures, building materials, and shading; utilize energy-efficient technology and renewable energy resources; and minimize water use. In Section 5.16 of the zoning ordinance, which governs a particular district, the regulations require that proposals diminish the heat island effect [Subsection g (2)(B)]. In relation to street parking design, subsection Section 6.02 (k) of the zoning ordinance requires that the proposal the location of trees within parking areas shall maximize shade on vehicles and pavement to reduce the heat island effect.
By contrast, in some other municipalities the SPR process is a little more than a rubber stamping of the project, providing the abutters’ the thinnest layer of protection, if any, from heat island effect. One case in point is North Andover, Mass., where generally projects that somehow get characterized as “as-of-right” or by-right” get a nod and a wink even though they are impactful enough that they cannot go unregulated. Take, for example, the North Andover’s 16+ acres redevelopment plan that will turn the site from North Andover Middle School athletic and playing fields into a mega sports complex.
In April 2019, the Planning Board of the Town of North Andover, Massachusetts, issued a “Site Plan Review Special Permit” for the redevelopment of a site located at 495 Main Street. Presently, the site is at the North Andover Middle School and consists of athletic/playing fields, including an area designated as Hayes Stadium, which is an ordinary grass field with an oval track, bleachers and goalposts; the site also includes parking lots and a playground. The site is located in a residential district, which under the town’s zoning regulations is allowed to have a “municipal recreation area.” The Site Plan Review Special Permit gave the town the go-ahead to renovate/reconstruct the site by constructing one (1) softball field, one (1) 90' baseball field, two (2) multipurpose fields, two (2) bocce courts, two (2) shuffle ball courts, two (2) half-court basketball courts, and two (2) children's playgrounds, two (2) multipurpose courts, two (2) picnic areas, an amphitheater, a concession stand, storage buildings, bathroom facilities, 160 additional parking spaces [for a total of 465 spaces], and associated paved walkways/ emergency/maintenance paths, and stormwater management systems, and other amenities as referenced in the project plans. The other amenities include lighting for athletic fields, parking lots and walkways. For a schematic of the site’s existing and future conditions see here.
Presently, about 12.05 acres of the site are natural grass; post-construction only 4.82 acres of the site will be natural lawn and plantings. By implication the rest of the area will be impervious or semi-impervious surfaces. The softball and baseball fields and the two multipurpose fields (totaling some 4 acres) will be artificial turf with crumb rubber infill and sporting field lighting. Overall, The stormwater will be collected at designated catch basins, to be treated by separators and then infiltrated back into the ground in underground infiltration chambers, with the runoff from the synthetic field collecting in 8” perforated underdrain pipes and outlet to underground infiltration chambers. Overflow from some of the infiltration chambers will connect to the existing drainage system outletting to Parker Street in the northwest and Middle School system in the northeast.
Before the Conservation Commission – Meeting of January 9, 2019. For a copy of the minutes of the meeting go here. Prior to the aforementioned proceedings before the Planning Board, the project’s stormwater management plan was “vetted” by the town’s conservation commission. The town’s project designer represented to the ConCom that meeting all of the North Andover and DEP standards for water quality and quantity will be accomplished by deep catch basins, proprietary separators and infiltration chambers. As the water is collected it will treated before it goes to the infiltration chamber. The quantity and volume will be reduced through infiltrating and the quality will be improved taking out the fines and the total suspended solids to 80%.
A member of the ConCom quizzed the project designers by pointing out that the entire area has a perched water table and that the high ground water is what makes the nearby wetland exist. He questioned how the volume of water can get in the ground without affecting the abutting properties and abutting wetlands. The project designer stated that they have done the research with extensive soil testing on the site before locating the underground drainage structures. It is a challenging site based on the engineering. They are confident they can make it work for North Andover.
The ConCom member asked about the underdrains of the fields and the infiltration in the same area. The designer explained that the existing grass field absorbs some of the water and some runs off but most runs into the grass. When going with synthetic, the synthetic turf drains the field. The water either sits in the soil or gets discharged, this is the purpose of the underdrains. The chambers underneath take the water away from the turf, collecting it in the infiltration system allowing them to store the water and infiltrate overtime. The infiltration chambers are large because of the bad soil. The project designer further noted that when the holes for the infiltration chamber are dug they will have a lot of fill. This will allow them to raise the profile of the fields. As the profile is raised it will give them more separation between the groundwater and the proposed drainage system.
The ConCom member then asked if the project is with DEP for review. The ConCom administrator stated they have received a file number but given the limited jurisdiction DEP may not have any comments.
In response to a comment by a Hemlock Street abutter, the project designer stated that in the area near Hemlock Street the profile will be lifted about1 (one) foot. There will be swales with collection points to prevent runoff onto abutter’s property. The water will then go back into the infiltrators. A Parker Street abutter noted the nearby woods are flooded after a big rainstorm or when the snow melts; so it is concerning that there will be more pavement and less grass to absorb the water. The project designer stated that infiltration chambers shown on the plans will capture every single drop of water generated by the new pavement, none of it will leave the site.
An abutter questioned how it’s possible the water doesn’t leave the site and if there’s a similar system in place in town. The project designer replied that they have developed a system of manholes, pipes and catch basins to catch the parking lot drainage bringing it to an internal underground chamber with gravity. The water will go back into the ground and will require no pumping. Project designer further stated: The bulk of the drainage on the site is the fields. An abutter questioned if the turf will have ground up tires in it and if ground up tires can be a carcinogen. The project designer stated the turf may have ground up tires in it. A ConCom member stated he hadn’t heard anything about the ground tires being a carcinogen. He heard that professional and college teams in the warmer climates have ripped up the turf and replaced them with white ground up rubber because of the heat. The project designer noted that the turf material hasn’t been chosen yet and they still have time to choose either black or white rubber.
The ConCom consideration of the project’s stormwater plan concluded by another ConCom member raising his concerns with the fresh water table in the area and that more water cannot be added to the system.
Abutter’s Complaint. An abutter whose property borders directly on the site – adjacent to where the planned artificial turf softball/multi purpose fields will be located - commenced suit in Massachusetts Land Court, seeking a judicial review of the Site Plan Review Special Permit pursuant to Section 17 of the state Zoning Act (G. L. c. 40A).
The plaintiff alleged, among other counts, that the project’s stormwater management plan did not square with the town’s stormwater management bylaw. The bylaw recognizes that “[i]ncreased volumes of stormwater, contaminated stormwater runoff from impervious surfaces” are major causes of “impairment of water quality in lakes, ponds, streams, rivers, wetlands and groundwater” and “[d]ecreased flow in lakes, ponds, streams, rivers, wetlands and groundwater.” Furthermore, the objective of the town’s stormwater bylaw includes the protection of ground water and surface water from degradation or depletion; promotion of infiltration and the recharge of groundwater; and the prevent pollutants from entering the municipal and private storm drain system.” The bylaw defines “recharge” as “[a]ddition of stormwater runoff to the groundwater by natural or artificial means” and it defines “runoff” as “[r]ainfall, snowmelt, or irrigation water flowing over the ground surface.” Finally, the town’s Zoning Bylaw defines hazardous material as “[a]ny chemical or mixture of such physical, chemical, or infectious characteristics as to pose a significant, actual or potential, hazard to water supplies, or other hazard to human health, if such substance or mixture were discharged to land or waters of the Town.”
The plaintiff’s complaint made the point that contrary to popular belief, artificial turf fields are not pervious. A common definition of an impervious surface is “[m]aterial or structure on, above, or below the ground that does not allow precipitation or surface runoff to permeate into the spoil.” Mass. DEP Model for Groundwater Protection (2011).
It is a common misconception that because the carpet of synthetic turf field absorbs precipitation (permeable) that therefore the synthetic field – as a whole – is not an impervious surface. The permit, aforementioned, provides that the “[o]verflow from some of the infiltration chambers [associated with the synthetic turf fields] will connect to the existing drainage system.” The amount of water that is discharged into the drainage system is the amount that is not recharged into the soil/groundwater. Therefore, the synthetic turf fields not only do not protect groundwater from depletion, but also they do not promote infiltration and the recharge of the groundwater. In light of the leaching and breakdown of crumb rubber and the polyethylene carpet to bits and dust, it is hard to see how the seepage of the chemicals of concern into the ground or into the drainage system helps prevent pollutants and hazardous materials from entering the municipal storm drain system.
The Environment Be Damned; Not Our Problem. The Massachusetts Environmental Policy Act calls for decision makers to evaluate certain projects for their impact on the natural environment and to use all practicable means and measures to minimize damage, destruction or impairment of the environment, actual or potential. The Act also calls for the project approval processes to consider reasonably foreseeable climate change impacts. (G.L. c. 30, § 61).
At the February 5, 2019 meeting of the Planning Board, a resident concerned with the size of the project and its carbon footprint and impact on climate change asked the board: “Has anyone analyzed the environmental impact of this project?” The chair of the board dismissively replied: “Generally with fields projects it’s not a question that we ask.” North Andover Planning Board Meeting - February 5th, 2019
It is hard to square that response with the board’s responsibility under the environmental provisions of the site plan review guidelines. Under the town’s regulations (Sec. 195-8.11), developments which require site plan review include any construction or site improvement involving new uses or processes not normally associated with the existing use and which result in changes in potential nuisance to adjacent property. An abutter may well contend that the installation of synthetic turf fields next door to his land requires that the town to consider synturf in all of its dimensions, including its heat island effect and other environmental impacts such as contamination of stormwater due to chemicals of concern in the turf or the infill.
The town moved to dismiss the complaint. The Court denied the town’s motion and in its Memorandum of Decision noted that the plaintiff’s allegations of harms associated with the synturf component of the project – such as the loss of stormwater recharge and effects of heat island - were adequately alleged and that the harms are particularized to him because of his proximity to the site.
In the pre-trail phase of the proceedings, the plaintiff listed the following number of documents – widely available on the internet - to be relied upon at trial as exhibits to demonstrate the adverse environmental impact of synthetic turf and crumb rubber infill:
- Synthetic Turf Council, A Guide to Recycle, Reuse, Repurpose and Remove Synthetic Turf Systems (October 2017).
- Environment & Human Health, Inc., Synthetic Turf: Industry Claims versus The Science (North Haven, CT 2017.
The town filed an in limine motion to exclude the plaintiff’s documents and expert testimony as to the synthetic turf component of the project on the grounds that the town’s site plan review criteria do not provide for the consideration of heat island effect. In their decsion, the court granted the motion in part by excluding evidence and affidavit of experts about heating of artificial turf fields (Thomas Sciacca testimony – Affidavit, Suppl. Affidavit) and the thermal satellite imaging of synthetic turf and natural grass fields in North Andover. (Camilo Arrau Perez testimony – Affidavit explaining thermal images). But because the site plan review criteria provide for consideration of effect of projects on stormwater management (runoff, drainage, and quality of water) as an environmental concern, the court allowed the plaintiff to offer expert testimony about the effect of synthetic turf and crumb rubber on water quality. Trial is scheduled for the last week in April 2022.
[No. 30] Essex County, Massachusetts: Community Preservation Act funds cannot be used for construction/installation of artificial turf fields. SynTurf.org, Newton Mass. July 2021. Community Preservation Act (CPA), Mass. Gen Laws c. 44B, allows towns that adopt the Act by legislative to levy a surcharge of 1% to 3% on real estate taxes. The surcharge money thus collected goes into an account called Community Preservation Fund (CPF) and the sate of Massachusetts contributes to the municipal CPF as certain amount each year as matching funds. The Act authorizes expenditures on open space (including land for recreational use and capital improvements thereto), historic resources, and affordable housing. For some time, municipalities have been tapping into this fund for all sorts of projects and some of the projects have not passed the eligibility smell test, like the one on Norwell, Massachusetts where the town wanted to build a sidewalk along a state highway under the guise of it being a “pathwalk” for recreational use. Other questionable use of CPA money has been in connection with the construction of artificial turf fields. The Act expressly prohibits the “acquisition of artificial turf for athletic fields.” But for more than a decade, municipalities have done an end-run around this prohibition by separating the synthetic turf (carpet) from the more capital intensive infrastructure work associated with the installation of artificial turf fields, thus paying for the carpet from other municipal accounts or private donations, and funding the expensive and capital intensive infrastructure work with CPA money.
In March 2021, the Essex County Superior Court ruled that a municipality may not spend any funds appropriated through the CPA on the construction and/or installation of the Project's artificial turf fields. For the copy of decision go here.
In Silverio et al. v. Town of North Andover, Essex County Superior Court, Docket No. 1977CV00629-B (2019), seventeen taxable inhabitants of the Town of North Andover challenged the town’s appropriation of $6 million in CPA funding for the development of a Recreation Complex at the site of the North Andover Middle School fields. Among other claims, the plaintiffs challenged the propriety of the impending CPA expenditure on the synthetic turf field component of the project. The plaintiffs alleged that an artificial turf field is a unitary structural system which encompasses the plastic grass, infill and underlying foundation/base that supports the artificial turf fields and its drainage. The foundation/base and drainage system associated with artificial turf fields are specific to artificial turf fields. The synthetic turf industry markets and sells synthetic turf fields as a unitary system. The plaintiffs’ offered verbiage from the industry’s own manuals about synthetic turf – such as from American Sports Builders Association, “Synthetic Turf Field Construction Buyer’s Guide,” (“the important thing to note is that each brand of synthetic turf is a system”); FieldTurf, “How it works – Construction and Installation” (“FieldTurf system”). To bolster their allegation, the plaintiffs also offered the court a glimpse of the engineering that goes into the creation of artificial fields, such as FieldTurf, “How it works – Construction and Installation” http://www.fieldturf.eu/en/the-fieldturf-difference/how-it-works and American Sports Builders Association, “Synthetic Turf Field Construction Buyer’s Guide.” In addition, the plaintiffs referenced the following You Tube clips that demonstrated how a field is put together and why it is so costly to install one - Sunny Acres Sports Systems, “Base Construction for Synthetic Turf Sports Fields,” at https://www.youtube.com/watch?v=ckjloEis_OQ (published on July 30, 2009); Turf Solutions Group, “How to Build a Sports Field,” at https://www.youtube.com/watch?v=qMt5R7dTbPU (published on February 25, 2013); and David Jerke, “The Artificial Turf Design and Construction Process,” at https://www.youtube.com/watch?v=_o41e8PHhNc (published on June 19, 2015).
The plaintiffs’ legal argument rested on the unreasonableness of the distinction that was being made by municipalities between artificial turf (carpet) and artificial turf field (the whole filed, including the infrastructure). They pointed out that other than the statutory verbiage at issue (i.e., “artificial turf for athletic fields”), there is no other evidence to suggest that the Massachusetts lawmakers in 2012 intended to distinguish the carpet from the base and drainage aspects of the artificial turf athletic fields, or that they intended to prohibit expenditure of CPA money for the acquisition of artificial turf (plastic carpet) while permitting CPA money for the infrastructure that supports the carpet. The plaintiffs argued that a literal construction of the verbiage at issue therefore would yield an illogical, absurd and unreasonable result – i.e., allowing CPA funding for an infrastructure work that will sustain a synthetic carpet that the Act expressly prohibited. Because statutory construction that creates absurd or unreasonable consequences and illogical results should be avoided, the plaintiffs urged the court to interpret the provision of the Act relating to artificial turf fields so as to exclude the use of CPA money for artificial turf fields.
The court ruled in favor of the plaintiffs. In their memorandum of decision and order the court stated: "The taxpayers argue that the CPA does not authorize expenditures on artificial turf fields. Both parties agree that money from the CP Fund cannot be used for artificial turf, but the taxpayers are concerned with the site preparation work that is necessary for the turf. The relevant language from the CPA states: “With respect to recreational use, the acquisition of artificial turf for athletic fields shall be prohibited.” G. L. c. 44B, § 5. The argument that the taxpayers present is persuasive. Synthetic turf fields are constructed as a system of interconnected parts, and it is not logical to allow funding for the work needed to ready a site for the installation of a turf field (removal of grass, drainage, plumbing, curbing . . .) but not for the turf itself. The Town may not spend any funds appropriated through the CPA on the construction and/or installation of the Project's artificial turf fields. The Project must use either the private donations or the general funds to finance this portion of the Project."
Practitioner’s Note: While it is true that one justice of the Superior Court sitting in Essex County has ruled that CPA money cannot be spend on the construction/installation of artificial turf fields, one should not waive off this ruling as irrelevant as to similar cases brought in other superior courts. This precdential seminal ruling is persuasively reasoned and it has a reach beyond Essex County because justices of the superior court often are reassigned to other counties. Therefore, Justice Lu, , if he were sitting, for example, on a similar case in Middlesex County Superior Court, he would have ruled the same way given the same set of facts, evidence and the law.
[No. 29] The Netherlands – Dutch prosecutor files suit for injunction against crumb rubber infill under Article 13 of the Soil Protection Law. According to a news report on the RecyclingNetwerk.org (8 October 2019), “[t] he Dutch Public Prosecution Department has brought a case before the Court of Justice for failure to protect the environment from damage by the dispersion of crumb rubber infill. In September 2017, environmental NGO Recycling Netwerk Benelux filed charges with the Public Prosecutor’s Office against the use of crumb rubber infill on artificial turf fields. The charges concern environmental offences due to the leaching of zinc, cobalt and mineral oils from the crumb rubber into the environment. The charge was directed to the entire value chain, ranging from producers who process end-of-life tyres to crumb rubber infill, to constructors and caretakers of sports accommodations, as well as sports clubs who implement it. The prosecutor now sues Sportaal, the caretaker of sports accommodations in the municipality of Enschede.” ... “Under Dutch law, it is prohibited to pollute the soil. This is stated in the Wet Bodembescherming (Soil Protection Law). Article 13 dictates to take all measures necessary to prevent pollution of the soil. The law contains a duty of care, which obligates relevant actors to prevent pollution of the soil, and to remediate the effects of pollution whenever pollution of the soil has occurred.
In spite of several documents developed over the years by industry stakeholders to implement the duty of care, in practice, the crumb rubber infill disperses into the environment. It contaminates the soil with heavy metals, mineral oil and other chemicals of concern. Furthermore, the rubber crumbs break down into microplastics. The European Chemicals Agency (ECHA) is currently assessing crumb rubber infill in the preparation for the restriction dossier on microplastics under REACH. The official Dutch Institute for Health and the Environment (RIVM) published its report The environmental impact of rubber infill near artificial turf fields in July 2018. RIVM concludes in the report that zinc, cobalt and mineral oil leach from the rubber granules, and can create negative environmental impact on the soil around and in the sublayers of the synthetic turf field.” ...“This court case can have far-reaching consequences for the nearly 2000 artificial turf fields in the Netherlands currently filled with crumb rubber. Since there are ample alternatives at hand to implement, such as cork infill, hybrid or non-infill artificial turf fields, Recycling Netwerk hopes municipalities and caretaking organizations will take account for the total cost of ownership and consider the environmental effects when selecting materials for their sports accommodations. The first hearing was to take place before the Meervoudig Economische Strafkamer (Economic Criminal Chamber) on the 19th of September, but was rescheduled due to illness of the counsellor who represents Sportaal.” Source: Siu Lie Tan, “Dutch prosecutor pioneers with legal case against crumb rubber infill,” on RecyclingNetwerk.org, 8 October 2019, at https://recyclingnetwerk.org/2019/10/08/dutch-prosecutor-pioneers-with-legal-case-against-crumb-rubber-infill/. For the PDF of the article (with internal hyperlinks) go here.
[No. 28] Staten Island, New York - Slippery when wet – Two slip-and-fall lawsuits involving artificial turf. According to a news article on SILive.com (27 January 2019), “[l]awsuits against the city allege two students were hurt, one seriously, in separate slip-and-fall incidents at TottenvilleHigh School …. The city and Department of Education’s carelessness and negligence caused two students’ injuries in separate slip-and-fall incidents on the TottenvilleHigh School campus over the past 15 months, allege recently-filed lawsuits against the city. One student, Frankie Malerba, alleges he and his classmates did not have the proper footwear when he fell on the school’s wet athletic field and was badly injured during a required gym class on Oct. 19, 2017. According to a civil complaint filed by Malerba and his father, Frank Malerba, the teen was participating in a gym class which required him and fellow students to play touch football on the outdoor athletic field. Malerba, then 17 and a junior at the school, was wearing ‘flat-bottomed sneakers,’ according to the complaint and Paul F. Callan, Malerba’s lawyer. The field’s artificial turf was wet, causing it to be ‘extremely slippery,’ said the complaint. The wetness rendered the field ‘unsafe and unsuitable’ for touch football, particularly since students weren’t wearing cleats ‘necessary to achieve traction and prevent slipping on the artificial turf,’ the complaint alleges. ‘It was a dangerous and defective installation in the football field, which was wet, slippery and in very, very poor condition,’ said Callan, counsel to the Manhattan law firm of Edelman & Edelman. Malerba fell and suffered ‘very serious’ injuries to his back, necessitating fusion of the lower spine and the installation of hardware, Callan said. He underwent subsequent surgery due to an infection, said the lawyer. Besides physical injuries, the teen, now 18, has suffered psychological and emotional stress, said the complaint. The complaint alleges the defendants ‘exposed the students to the substantial risk of injury’ by compelling them to participate in a sports activity ‘on a dangerous and slippery field and without proper safety equipment.’ The complaint further contends the defendants were negligent due to the field’s poor drainage which allowed rain water to accumulate on the artificial turf. ‘It’s really a horrible situation that the students of TottenvilleHigh School were subjected to this level of danger,’ said Callan. ‘We hope that this lawsuit sends a message to the city that they have an obligation to provide city students with safe athletic fields.’ Filed in state Supreme Court, St. George, the suit seeks unspecified monetary damages. In addition to the city, the Department of Education is a named defendant.”
“In the other suit, Lori Mangine alleges her son was injured on Sept. 18 of last year. The boy, who is identified in court papers by his initials, ‘R.M,’ slipped and fell due to a ‘watery substance’ caused by a leaking ceiling or windows, a civil complaint alleges. He ‘violently’ crashed against a section of ‘folded-up bleachers,’ said the complaint. Presumably, the incident occurred in the gymnasium, although the complaint does not specify where. The boy’s injuries are not specified. The suit is also filed in state Supreme Court, St. George, against the city and Education Department and seeks unspecified monetary damages. Michael J.R. Mule, the plaintiff’s Manhattan-based attorney, did not immediately return a phone message seeking comment. ‘Safety always comes first and we work with each school to address any facilities issues and ensure safe practices in our physical education classes,’ said Doug Cohen, a spokesman for the Department of Education. ‘We’ll review the lawsuit.’ TottenvilleHigh School is not a named a defendant in either suit.” Source: Frank Donnelly, “Suits: City liable for injuries students suffered in falls at TottenvilleHigh School; one needed spinal surgery,” on SILive.com, 27 January 2019, at https://www.silive.com/news/2019/01/suits-city-liable-for-injuries-students-suffered-in-falls-at-tottenville-high-school-one-needed-spinal-surgery.html
SynTurf.org Note: According to the aforementioned news article, “TottenvilleHigh School is not a named a defendant in either suit.” Too Bad! Schools that elect to install these artificial turf fields know or should know of the dangers that playing on them pose for the players. They are in every way complicit in the events that eventually end up hurting people. Not until school official and the taxpayers take the financial hit of such lawsuits nothing will change – the decision-makers will stick their heads in the sand (and tyre infill), turning a blind eye and a deaf ear to the warnings that have been out there for over a decade about playing on these fields.
[No. 27] Charlottesville, Virginia – Student sues over superheated field that nearly killed him. According to a news article in The Daily Progress (29 October 2018), “[a] Monticello High School [Charlottesville, Virginia] student has filed a lawsuit against two members of the Albemarle County school’s staff after he said he almost died at a soccer practice during summer 2017. According to the lawsuit, filed by attorney Lloyd Snook in Albemarle Circuit Court, Patrick Clancy had his health put at risk by the defendants — MHS Athletic Director Matthew Pearman and boys soccer coach Stuart Pierson. The suit claims Clancy, then a sophomore, suffered heat stroke on July 21, 2017, at a two-hour soccer practice designed to help athletes become acclimated to the heat. At 8 a.m. that day, the air temperature in the Charlottesville area, including around the high school, was already over 80 degrees, and humidity was approximately 70 percent. There was little wind, and it was sunny. At the beginning of the practice, the National Weather Service heat index was approximately 83 degrees, the suit reads. Adding in the effect of synthetic turf and full sun, the weather service’s heat index would be between 107 and 120 degrees. By the end of the practice at 10 a.m., the temperature had risen and the weather service’s full sun heat index on a synthetic turf field would have been between 124 and 139 degrees, a level characterized by the NWS as ‘extreme danger.’ After Clancy returned home that day, his mother noticed that he could not perspire and got him into a cold shower, where his fingers turned blue, according to the suit. He was later taken to a hospital, where, the suit claims, he was diagnosed as having exertional heat stroke. A press release from Snook said several ‘well-established’ practice guidelines were not followed. ‘There was no trainer present. There was no cold water present. There was no shade to get the boys out of the heat. The team took no rest breaks,’ he said in the release. The lawsuit claims negligence on the part of the defendants caused Clancy to sustain serious and permanent injury and requests $1 million in compensation. The suit asks for an additional $1 million in compensation for a count of gross negligence. The county school division did not provide comment on the lawsuit. No hearing date has been set for the case yet.” Source: “Student sues MHS officials after reported heat stroke,” in The Daily Progress, 29 October 2018) at https://www.dailyprogress.com/news/local/student-sues-mhs-officials-after-reported-heat-stroke/article_e2cce130-dbd2-11e8-b81c-3fe7f3b47346.html
[No. 26] San Diego, California – Parents sue the unified school district over installation of crumb rubber artificial turf fields. According to a news report in Courthouse News Service (8 February 2017),
Parents sued the San DiegoUnifiedSchool District for installing artificial turf fields made with tire crumbs, claiming the crumbled rubber contains carcinogens that endanger children. [Go here for a copy of the Complaint]. Keep Turf Safe sued the school district in Superior Court, claiming it violated the California Environmental Quality Act by failing to conduct environmental review or notify the public before installing artificial turf fields at elementary schools. They ask the court to restrain installation of any crumb turf until the district complies with CEQA. The parent group claims the school district “has not been forthcoming” about its decisionmaking process, and whether the decision was made on a case-by-case basis or is a large, possibly districtwide project. Exhibits to the Feb. 1 lawsuit include a spreadsheet identifying 83 schools scheduled to get turf fields between 2014 and 2019. The list, released by the school district, does not identify which schools will use tire crumb turf. Tire-crumb turf is made of recycled tires that are ground to a sand-like consistency. “The tire crumb poses a risk and contains heavy metals, known carcinogens and other toxic substances,” the parents say in the complaint. “Despite this, respondent is happy to allow San Diego’s young children to roll on these fields, eat and drink on these fields (risk ingestion), collect tire crumb pellets, and take home pieces of tire.” They add: “Evidence readily available illustrates an unusually high incidence of cancer among young soccer goalies across the United States who have played on tire crumb turf.” Los AngelesUnifiedSchool District and the New York City Department of Parks and Recreation decided not to install tire-crumb turf fields due to health concerns, the group says. They add that the U.S. Consumer Product Safety Commission does not endorse tire-crumb turf as safe for children to play on, and say the U.S. Environmental Protection Agency is studying the material and is expected to release a peer-reviewed report this summer. They say the risks go beyond the schoolyard, as heavy rain can wash the tire crumbs into storm drains, and did so in January this year at SilverGateElementary School. Neither Silver Gate nor EuclidElementary School conducted environmental review or took public comment before installing the turf, the parents say. “Recycled tire material gets dangerously hot and emits fumes,” they say in the complaint. Euclid Elementary installed the turf in September 2016. “The first day that the artificial tire-crumb field was opened, 44 students were sent to the school nurse for heat exhaustion after playing on the tire crumb field,” according to the complaint. Environmental impact reports for turf installations at two other elementary schools under review do not mention what materials will be used, another violation of CEQA, the parents say. They say that no overall environmental review for the project to install turf fields at more than 80 schools has been issued, let alone on a school-by-school basis. Erika Lundeen, a parent and teacher, at Euclid Elementary, helped parents Silver Gate Elementary petition the school principal to wait to install the crumb turf until more safety information is available. She helped gather 200 parent signatures, but said in an interview that their concerns were ignored when the school site council voted to install the turf. Keep Turf Safe is represented by San Diego attorney Gabriela Torres with Resolve Legal Solutions. Torres said parents of elementary school children are particularly concerned because the children could be exposed to the tire crumbs throughout their 13 years at public schools.
“The district has a duty to disclose any hazardous material in schools that children will be exposed to, and in this instance, they failed to perform that duty,” Torres said.
[No. 25] Glen Ellyn, Illinois: Protect Glen Ellyn Parks, Inc. vs. Glen Ellyn Park District (DuPage County Court Case No. 2015CH001011). According to a news report in the Chicago Tribune (2 June 2015),“[a] number of Glen Ellyn residents opposed to the Park District's plan to lay artificial turf on an athletic field filed a lawsuit June 1 in DuPage County Circuit Court to halt the installation at Newton Park…. Before filing the lawsuit, the residents, many of whom live adjacent to or near NewtonPark, urged the district’s board of commissioners to rethink the plan to lay the artificial turf, citing health and environmental concerns. After the district's board said money had been spent and contracts signed, the residents said litigation was a likely step to prevent the district from installing the artificial turf…. The lawsuit was filed on their behalf, as well as resident Nancy Perlman…. In its lawsuit the group says the artificial turf uses ‘crumb rubber infill made from used automobile tires and containing volatile organic compounds’ that are harmful to the residents living near NewtonPark. The plaintiffs said the infill used in the turf will easily break free from the turf and be spread beyond the field's confines by wind and rain into neighboring yards and the DuPageRiver.” Source: Alex Keown, “Residents file suit to stop artificial turf plan at NewtonPark,” in Chicago Tribune, 2 June 2015, at http://www.chicagotribune.com/suburbs/glen-ellyn/news/ct-gle-glen-ellyn-turf-field-lawsuit-tl-0604-20150602-story.html
SynTurf.org Note: The foregoing complaint (supported by exhibits) alleges three counts wrongdoing by the municipality:
Count I: Public Nuisance -- The public has a right to a healthful environment and to be free of the health and environmental hazards posed by the chemical exposures and other dangers from artificial turf. These rights are shared by the Plaintiffs. 25. The actions by the Glen Ellyn Park District in installing an artificial turf field in NewtonPark will substantially and unreasonably interfere with those rights. 26. If allowed to continue, the artificial turf field being constructed by the Glen Ellyn Park District in NewtonPark will cause substantial and serious injury to the Plaintiffs by creating an unhealthful environment and exposing the Plaintiffs to health and environmental hazards.
Count II: Trespass -- The actions by the Glen Ellyn Park District in installing the artificial turf field in NewtonPark will result in foreign matter, namely, the artificial turf infill, entering onto the land and invading the airspace above the property owned by Ms. Perlman at 124 Exmoor Avenue in Glen Ellyn. The Glen Ellyn Park District knows that their action in installing the artificial turf field in NewtonPark is substantially certain to result in foreign matter, namely, the artificial turf infill, entering onto her land and invading the airspace above her property.
Count III: Private Nuisance -- The actions by the Glen Ellyn Park District in installing the artificial turf field in NewtonPark will result in foreign matter, namely, the artificial turf infill, entering onto the land and invading the airspace above the property owned by Ms. Perlman at 124 Exmoor Avenue in Glen Ellyn. The entry of the artificial turf infill onto Ms. Perlman’s property will substantially and unreasonably interfere with her use and enjoyment of the land. The infill will continuously blow onto Ms. Perlman’s property, making her life and residence there uncomfortable.
The suit seeks a temporary restraining order and a preliminary and permanent injunction that prohibits defendant from installing artificial turf in NewtonPark and ordering the removal of any artificial turf products from the area in and around NewtonPark.
On 15 June 2015, the Court held a hearing on the issue of preliminary injuncction. According to a news report in Chicago Tribune(16 June 2015), Judge Bonnie Wheaton ruled that “plaintiffs opposed to the artificial turf at the field did not provide enough evidence that the turf posed a health risk and denied the request to grant a temporary injunction…. In response to the lawsuit, the Park District filed its ‘Answer and a Memorandum of Law’ in opposition to the suit. Those pleadings included citation to numerous studies substantiating the absence of any health concern from synthetic turf fields. The district said regulatory bodies that "performed and reviewed the substantial research on synthetic fields," which includes departments of health in California, Connecticut and New York, concluded there were no health concerns….After the court hearing, Wheaton ruled the plaintiffs failed to prove the synthetic field would cause any irreparable harm. Wheaton also said the plaintiffs health concerns were based on speculation and conjecture rather than evidence…. In a press release, Julia Nephew, president of the Glen Ellyn Park District Board of Commissioners, said she was disappointed a resident opted to file a lawsuit in opposition to the turf at the end of the project rather than during the process.” Source: Alex Keown “Glen Ellyn Park District OK to install artificial turf at NewtonPark, in Chicago Tribune,16 June 2015, at http://www.chicagotribune.com/suburbs/glen-ellyn/news/ct-gle-glen-ellyn-turf-installation-newton-park-tl-0618-20150616-story.html
[No. 24]Class Action on behalf of players afflicted with cancer who has spent extended time on artificial turf fields. Classaction.org has issued an Alert headlined “Synthetic Turf Lawsuits: Can Artificial Grass Cause Cancer?” http://www.classaction.org/artificial-turf-lawsuit
This Alert Affects:
Individuals who have been diagnosed with cancer after spending an extended amount of time on artificial turf at sports fields, playgrounds and sports venues.
What’s the Problem? Synthetic turf contains mercury, lead, benzene, polycyclic aromatic hydrocarbons, heavy metals, arsenic and other carcinogens. These substances have been linked to several types of cancer, including leukemia and non-Hodgkin lymphoma.
Who’s At Risk? It is believed that children who play sports, such as soccer, on artificial turf fields may be at the greatest risk for developing cancer.
What is ‘Crumb rubber’? It is used in artificial turf fields to fill the space between the grass blades. It is a form of recycled rubber made from automobile and truck tires. The EPA states that a number of materials, including lead and benzene, may be found in tires. Therefore, some believe that these same substances may also be present in artificial turf fields across the country.
Have Lawsuits Been Filed? Yes – and three of the country's biggest manufacturers of artificial turf, Field Turf, AstroTurf LLC and Beaulieu Group, have already agreed to reduce the amount of lead in their products. This came after the California Attorney General's office filed a lawsuit alleging that the companies failed to warn the public about harmful substances in their artificial turf products. These lawsuits did not provide compensation to those injured as a result of exposure to synthetic turf.
Attorneys working with ClassAction.org are investigating potential lawsuits on behalf of individuals who have been regularly exposed to artificial turf (such as on a soccer field or playground) and have been diagnosed with cancer. Several leading manufacturers have faced fines and legal action over claims that their products contain hazardous amounts of lead and other known carcinogens; however, the companies have yet to face action from those whose health may have been affected. In light of heightened concern over the health risks associated with synthetic turf, attorneys working with ClassAction.org want to speak with anyone, including parents of young children and teens, who is suspicious about the link between turf exposure and a loved one’s cancer diagnosis.
If you or a loved one, such as your son or daughter, has been regularly exposed to artificial turf and has been diagnosed with cancer, get in touch with us today. We may be able to connect you to an attorney who can help you explore your legal options, which may include filing a lawsuit against one or more artificial turf manufacturers seeking compensation for medical bills and pain and suffering.
Who’s At Risk?Any child or adult who has spent an extended amount of time on artificial playing fields may have been exposed to lead and other carcinogens. Child athletes, especially high school soccer goalies, are thought to be particularly at risk for health problems related to artificial turf, as they are routinely in contact with the ground.
Study Find Dangerous Amounts of Lead in Artificial Turf
The main reason artificial turf is particularly dangerous is because it contains “crumb rubber,” which is made of ground-up rubber tires and is used to fill space between the turf’s grass blades. According to the EPA, tires contain lead and a number of other potentially hazardous substances, leading many to believe that artificial turf products may also contain the same dangerous compounds and materials found in automobile and truck tires.
In 2010, as part of a state investigation, artificial turf at The Mission Recreation Center in San Francisco was tested for lead levels. At the time, the California state standard for lead in children’s products (turf is classified as a children’s product since children frequently play on it) was 300 parts per million (ppm). The MissionRecreationCenter’s field was found to contain 17,000 ppm, which meant that the turf contained a dangerously high level of lead. The California standard for lead ppm has since been lowered to only 60 ppm, making the recreation center’s turf more than 250 times the level now thought to be safe. Unfortunately, it is believed that such high levels of lead in sports fields across the country are not uncommon.
Companies Reduce Lead Use in Turf, But Thousands Still At Risk
In 2009 and 2010, Field Turf, AstroTurf LLC and Beaulieu Group faced legal action from the California Attorney General’s Office over allegations that they failed to warn the public about the lead in their products. As a result of a settlement, the turf manufacturers agreed to drastically reduce the use of lead in their products and to replace turf in fields considered to be unsafe; however, because this settlement only required the companies to replace unsafe turf in California, thousands of playgrounds, parks and sports fields across the country may still contain hazardous levels of lead.
A 2008 report by the Centers for Disease Control and Prevention, for example, states that:
“Tests by the New Jersey Department of Health and Senior Services (NJDHSS) of artificial turf playing fields in that state found these fields contain potentially unhealthy levels of lead dust.”
A recent NBC News report also highlighted the scale of the problem:
“Artificial turf fields are now everywhere in the United States, from high schools to multi-million-dollar athletic complexes.”
While it’s long been known that artificial turf products contain lead and a number of toxic chemicals, it’s now believed that these substances can be released into the air if the turf breaks down. This can put individuals regularly exposed to synthetic turf at risk for inhaling or ingesting lead and other dangerous substances.
A Connecticut Department of Energy and Environmental Protection study, for example, found a variety of compounds in the air above playing fields and parks where artificial turf was present.The report noted that:
“Based upon the pattern of detection, it is considered likely that benzothiazole, acetone, toluene, methyl ethyl ketone, methyl isobutyl ketone, butylated hydroxytoluene, naphthalenes and several other PAHs were field-related.”
What Can I Do?If you or a loved one has been diagnosed with a form of cancer, such as leukemia or lymphoma, after being exposed to artificial turf, you may be able to take part in a lawsuit to seek compensation for medical expenses and other damages. To learn more about whether you can take part in an upcoming lawsuit, get in touch today and find out how we can help.
The tire recycling industry hailed the December 2009 issuance of an EPA study that found very low levels of toxic substances at four athletic turf sites in North Carolina, Maryland, Georgia and Ohio.
SynTurf.org Note: The purveyors of artificial turf fields are rather fond of saying that ‘[d]uring the past two decades, there have been more than 60 technical studies and reports that review the health effects of crumb rubber. The preponderance of evidence show no negative health effects associated with crumb rubber in synthetic turf.” The preponderance of evidence is civil measure of responsibility and its usually satisfied with a showing of 50+1 percent certainty. That leaves 49% of uncertainty. If among 100 players, 51 did not get cancer but 49 did would one excuse the deaths of 49 players to such a standard. In this country—at least one would hope—that in matters of public health and certainly life-and death that one would espouse a higher standard—even more so than the familiar “beyond the reasonable doubt” but decide matter son the basis of “beyond a shadow of a doubt.”
[No. 23] San Francisco, California: Beach Chalet is back in court. According to an article in the Sierra Club Yodeler (30 January 2014) ( http://theyodeler.org/?p=9013 ), the Sierra Club has appealed the Beach Chalet court decision that ignored critical safety hazards associated with the installation of artificial turf fields at the Beach Chalet in Golden Gate Park. For an earlier posting on this matter, see Item No. 20 below. The following is the reprint of the item in the Yodeler:
On Jan. 29, the Sierra Club’s San Francisco Bay Chapter and its co-plaintiffs appealed the decision of San Francisco Superior Court Judge Teri L. Jackson that would allow the San Francisco Recreation and Park Department (SFRPD) to irresponsibly ignore the fact that the artificial-turf material proposed for use in soccer fields in the west end of Golden Gate Park exceeds the safety thresholds for toxic chemicals set by the Bay Area Air Quality Management District (BAAQMD).
“The San Francisco Recreation and Park Department should make spaces safe for our children, not allow them to be exposed to chemicals that are proven unsafe for their health,” said Michelle Myers, Chapter director of the San Francisco Bay Chapter of the Sierra Club. “Sadly, the department has taken a wrong turn this time.”
In this case, the SFRPD admitted in its California Environmental Quality Act documents that the artificial turf proposed for use at the Beach Chalet soccer fields exceeded the Bay Area Air Quality Management District’s Acute Hazard Index by at least 200%. Despite this finding, the SFRPD insisted that close is good enough, and that using toxic material for playfields for children is not a problem.
Under the California Environmental Quality Act, if a project exceeds the BAAQMD Acute Hazard Index, the Environmental Impact Report must recognize and impose all feasible mitigation measures and alternatives to reduce the risk. Instead, the SFRPD decided to ignore these requirements and simply assumed it knew better than the agency specifically created to control these toxic materials.
Unfortunately, the Superior Court judge agreed with the city, leading to this appeal.
The BAAQMD measures toxicity in several ways. It measures toxicity for cancer. And it measures toxicity from non-cancer causing chemicals, such as lead, carbon black and other chemicals, that have significant impacts on humans, such as asthma, reproductive impacts, IQ deficits, etc. The Acute Hazard Index (AHI) measures the latter chemicals. When a project exceeds the AHI threshold it means that there is sufficient exposure to these chemicals to warrant concern. The SFRPD decided it knew better.
The city’s own documents admit that for non-cancer causing toxicity, the contaminants in the turf exceed the AHI. The city didn’t adhere to these findings.
The San Francisco Bay Chapter of the Sierra Club is confident that the Court of Appeals will recognize the need to evaluate the potential harm that may come from using this artificial turf material and ask the SFRPD to do a better job.
[No. 22] Former Kansas City Chiefs players claim artificial-surface fields contributed to concussions. According to a news report by the Associated Press (23 December 2013), “Two NFL Hall of Famers are among nine former Kansas City Chiefs players who have joined a lawsuit that contends the team hid the risks of permanent brain injuries from repeated concussions.” “All 14 plaintiffs were on the team between 1987 and 1993, a period when there was no collective bargaining agreement in place in the NFL. The amended lawsuit also adds claims that artificial-surface fields during part of that time contributed to concussions.” Source: Associated Press, “More Former Players Jump on NFL Brain Injuries Lawsuit, Blame Artificial Turf,” 23 December 2013, on ROYT.org at http://www.ryot.org/former-players-jump-nfl-brain-injuries-lawsuit-blame-artificial-turf/508885 .
SynTurf.org Note: The preceding item involves artificial turf surfaces in use between 1987 and 1993. Presumably, as the industry likes to remind people, those surfaces were not the same as the new generation infill systems, which, the industry argues are far safer than the previous surfaces. When it comes to concussions, one should not dismiss the possibility that the use of new generation turf fields may be implicated in concussions caused to football players. As we reported here in October 2013, according to an orthopedic surgeon, concussions are also more prevalent on artificial turf. See http://www.synturf.org/health.html (Item No. 84). See also http://www.synturf.org/health.html (Item No. 40).
There are two ways at looking at concussion caused by artificial turf. One is the impact of the head to the ground. As we reported in http://www.synturf.org/health.html (Item No. 64), the hardness and shock absorption properties of a turf field are gauged by G-Max, a measurement of acceleration that relates to the maximum force of a collision. A surface with a high G-max absorbs less force, meaning a dropped object sustains more force upon collision. Most fields, after installation, have a G-Max level between 100 and 140. According to the U.S. Consumer Product Safety Commission, anything above 200 is considered unacceptable. The higher the G-Max, the bigger the force the player will sustain; hence, the bigger chance of concussive injury. See http://www.synturf.org/health.html (Item No. 56). Another way to look at artificial turf as a factor in causing concussion is by considering the weight of the player, acceleration, and total force delivered to the opposing player, who too is speeding into the collision. The high traction that the new generation artificial turf fields provide the players cannot be dismissed as not playing a role – as a matter of biomechanics - in the acceleration and greater-impact collision between players.
[No. 21] Nashville, Tennessee: Lawsuit over premature degradation. According to news report in Nashville’s City Paper (11 June 2013), Father Ryan High School, a coeducational college preparatory high school Nashville, filed a lawsuit in Davidson County Chancery Court in early June against the companies hired to install the synthetic turf playing surface for its athletic field that was dedicated in 2009. The suit is alleging four separate counts against the companies - breach of contract, breach of warranty, misrepresentation and negligence. “According to the suit, Field Turf, Inc., the company subcontracted to supply the artificial turf, was receiving complaints from a number of its customers throughout North America during the construction [of the field at father Ryan].” “Those complaints alleged that the product was defective and that the fibers of the surface were splitting, breaking, fading, thinning and shedding during routine use.” “Father Ryan claims that information was never disclosed during the construction of the field.” “Two years after the turf was installed, Father Ryan began to notice premature degradation of the field’s fibers. Upon discovery of the poor conditions of the field surface, Father Ryan informed Field Turf of the situation.” “Father Ryan claims Field Turf’s product was advertised as highly durable with an eight-year warranty.” Father Ryan had contracted Nashville-based Precision Sports Fields to procure and install the playing surface. Another company - Hardaway Construction – was involved in the construction of Father Ryan’s field. “According to the school’s suit, Field Turf claimed that the field was experiencing normal wear and have refused to offer or provide Father Ryan with a remedy to fix the problem.” Source: Austin Lankford, “Father Ryan sues companies over alleged defective synthetic turf on football field,” in The City Paper, 11 June 2013, at http://www.nashvillecitypaper.com/content/city-news/father-ryan-sues-companies-over-alleged-defective-synthetic-turf-football-field .
[No. 20] San Francisco, California: The Beach Chalet Project (Golden GatePark) lands in court. On 8 July 2013, the Sierra Club and others filed suit in the Superior Court for the County of San Francisco against the City and County of San Francisco, and others, seeking declaratory and injunctive relief (writ of mandate) regarding various violations of law and regulations by the various City and other commissions in considering the project as well as against a variety of aspects of the project that includes the building of several artificial turf fields, using crumb rubber infill. Previous reporting on the project on this website is located at http://www.synturf.org/sanfranciscobrief.html (Items 8 and 6). The Petitioners and Plaintiffs’ trial brief in Case No. CPF-12 512566 is reported here, and the exhibits are reported here and here.
This case concerns the decision of the City and County of San Francisco (“City”) to use the most highly toxic form of artificial turf – styrene butadiene crumb rubber (“SBR” or “SBR Turf”) – at the Beach Chalet Athletic Fields (“Beach Chalet Project” or “Project”), and its refusal even to consider either natural grass or many less toxic artificial turf alternatives in wide use in New York, Los Angeles, Piedmont, San Carlos, Utah and hundreds of other locations. The City ignored expert evidence presented by some of the world’s leading scientists and scientific journals concluding that SBR turf exposes children to significant levels of highly toxic chemicals, and refused to consider non-toxic alternatives being used at hundreds of fields throughout the country. Although SBR has been rejected in New York, Los Angeles and many other areas, San Francisco stubbornly refuses even to consider non-toxic alternatives. The plaintiffs ask that the Court set aside the City’s decision to certify the environmental impact report (EIR) and approval of the Project; the City should be directed (writ of mandate, mandamus) to prepare a legally adequate (“EIR”) analyzing all Project impacts, alternatives and mitigation measures. The City has abused its discretion by failing to proceed in a manner required by law.
[No. 19] PEER issues retraction demands; sues CPSC and EPA for faulty data quality. According to its press release, on 21 March 2013, Public Employees for Environmental Responsibility (PEER) stated that the Feds should drop synthetic turf safety assurances because newer studies on risks, especially for children are absent from official assessments of artificial turf. Therefore, PEER issued retraction demands to the Consumer Product Safety Commission (CPSC) and the Environmental Protection Agency (EPA). The PEER complaints are filed under the Data Quality Act which requires information distributed by federal agencies be complete, objective and reliable. The complaints seek the retraction of a 2008 CPSC and a 2009 EPA study and associated press/web claims of safety.
Each agency did a very small study on a limited selection of possible exposures which failed to take into account realistic risks for children and athletes. Among flaws cited by PEER are that:
(1) CPSC only considered possible ingestion of lead found on the field surface, not inhalation or absorption through the skin. EPA looked at the presence of a number of compounds and inhalation potential on a handful of fields but not when there was activity likely to stir up plastic and tire dust particles containing lead and other toxic compounds;
(2) CPSC only considered possible ingestion of lead found on the field surface, not inhalation or absorption through the skin. EPA looked at the presence of a number of compounds and inhalation potential on a handful of fields but not when there was activity likely to stir up plastic and tire dust particles containing lead and other toxic compounds;
(3) Both examined newer fields despite the fact that the fields release more lead as they age;
(4) CPSC examined only lead, on the surface, ignoring a cauldron of other dangerous chemicals in the mass of pulverized tires underlying the plastic “grass” rugs including arsenic, benzene, cadmium, chromium, cobalt, mercury, carbon black and polycyclic aromatic hydrocarbons; and
(5) The EPA study took air and surface samples from three athletic fields and from one playground. The testing was so limited, an EPA representative said, that the agency was “not in a position to draw any conclusions on a national basis.”
According to PEER Executive Director Jeff Ruch, “[t]he latest study shows the chemical exposure intensifies with the level of activity – the harder the play, the greater the danger. It is utterly irresponsible to declare artificial turf ‘OK to install, OK to play on’ in the face of mounting evidence that the opposite is the case.” Even though the CPSC review had found lead levels in artificial sports fields above its accepted limits for children’s products the agencies refused to reclassify playgrounds and elementary school fields as children’s products. Ruch said, “[p]ublic health has been trampled underfoot to promote artificial turf,” pointing to EPA’s advocacy of shredding used tires as a beneficial form of recycling. “If these agencies are not going to do their jobs, they should stop making matters worse by misrepresenting the dangers to the public."
[No. 18] Sierra Club joins Beach Chalet lawsuit. According to the Sierra Club’sYodeler (7 February 2013), the Sierra Club “has joined a lawsuit charging the City of San Francisco with failing to comply with the California Environmental Quality Act (CEQA) in its proposed Beach Chalet Soccer Fields project. The complaint alleges that the projectis potentially putting children at risk when they play on the suspect artificial turf; abdicates significant control over the quality and safety of artificial turf to a private association; and failed to even consider a feasible alternative site outside of Golden GatePark and a design using a safe, non-toxic artificial turf.” Source: “SierraClubSuesCity to Stop Beach Chalet Soccer Fields Project,” in The Sierra Club Yodeler, 7 February 2013, at http://theyodeler.org/?p=6704 . See story Item No. 17 below.
[No. 17] San Francisco, California: Artificial turf project for Golden GatePark lands in court. SynTurf.org, Newton, Mass. On 12 October 2012, San Francisco Coalition for Children’s Outdoor Play, Education and the Environment – along with two residents – asked the San Francisco County Superior Court to put a halt to the city’s plan to install several artificial turf fields and high-wattage lights at Beach Chalet, in the western part of the Golden GatePark, near the Pacific Ocean. The complaint challenges the decisions of Recreation and Park Commission, San Francisco Planning Commission, Board of Supervisors of the City and County of San Francisco, and San Francisco Board of Appeals to move ahead with the project.
The artificial turf at issue consists of plastic blades of grass interspersed with infill material that cushions the turf. The City elected to use the infill material made of styrene butadiene crumb rubber (“SBR”), preferring it over several non-toxic alternatives in use elsewhere – such as corkonut (a mixture of natural cork and coconut husks in use in the California cities of Piedmont and San Carlos), acrylic coated sand used in Los Angeles), or thermoplastic elastomers (TPE) used in new York City. The EIR refused to consider these alternatives to SBR.
The CEQA requires the adoption of a feasible alternative that meets most of the project objectives but results in fewer significant impacts. The complaint charges that the Final Environmental Impact Report (“EIR”) on the project violated the California Environmental Quality Act (CEQA) in that it failed to take into account the toxic chemical impacts of artificial turf with styrene-butadiene crumb rubber (“SBR”) in fill, and elect an alternative to SBR infill.
According to certified hydrogeologist Matthew Hagemann, the former Director of the U.S. Environmental Protection Agency’s West Coast Superfund Program, a child playing on SBR crumb rubber as few as 30 times per year (less than once per week) would experience a cancer risk of 19 per million - almost 20 times higher than the CEQA significance threshold of 1 per million, and approximately twice as high as the cancer risk experienced by someone living adjacent to the Chevron Richmond refinery. According to Dr. Phillip Landrigan, epidemiologist and Director of the Mount Sinai School of Medicine Children’s EnvironmentalHealthCenter in New York, the major chemical components of crumb rubber, styrene and butadiene, are a neurotoxin and proven human carcinogen, respectively, and that the types of exposure risks have not been adequately studied. In addition, according to other reports and studies cited by the plaintiffs, even with mitigation measures, the human health impact created by toxic chemicals in SRB artificial turf would remain significant and unavoidable.
The complaint alleges that because the project objectives were too narrowly defined, the EIR failed to analyze a “Hybrid Alternative that would (1) restore the Beach Chalet natural grass fields with new grading, irrigation and add gopher proofing and good drainage and omit night lights and (2) restore the West Sunset Playground - only eight (8) blocks to the south and outside the Local Coastal Zone with artificial turf with safe infill and some night lighting. The Beach Chalet location and the West Sunset Playground location are almost identically located with respect to the center of the City. The proposed alternative would result in approximately the same number of play hours as the proposed project, while restoring both play areas and achieving all project objectives for comparable cost. In fact, the Final EIR admits that the alternative attains most of the project’s basic objectives; avoids or substantially lessens one or more of the significant environmental impacts of the proposed project; and is feasible – thus meeting CEQA criteria.
This is an administrative law proceeding, not a product liability one. In administrative proceedings, the general rule is that the petitioners must show that the governmental decision violates the procedural or substantive right of the petitioners, or that the decision itself was unreasonable, arbitrary or capricious. In practice, in some venues courts let governmental decisions stand as long as they are outrageous! What will be the fate of this suit depends on the sagacity of the judicial process recognizing that crumb rubber is toxic and therefore has no place in playgrounds and playing fields. Such a decision on the part of the court may then open the way for product liability suits against the purveyor of crumb rubber infill for dealing in a defective product – that is by nature hazardous and has a likelihood of doing harm.
[No. 16] FieldTurf sues TenCate, blaming it for prematurely aging artificial turf fields. SynTurf.org, Newton, Mass. March 10, 2011.On March 1, 2011, FieldTurf, a dominant player in the artificial turf industry filed suit in the United States District Court for Northern Georgia seeking compensatory and punitive damages against three defendants -TenCate Thiolon Middle East, LLC, Polyloom Corporation of America and TenCate Thiolon B.V. For Justicia index click here. For a copy of the complaint click here. The gist of FieldTurf’s gripe is best explained by the following gleaned from the Introduction part of the complaint:
This is an action for fraudulent inducement of contract, breach of contract and warranty, and preliminary and permanent injunctive relief. FieldTurf entered into supply agreements with Mattex (and later TenCate), on the understanding that Mattex’s monofilament artificial grass fiber was superior to the fiber supplied by its competitors. Mattex provided physical product samples and test results as to the suitability and superiority of its product. FieldTurf committed to buying the fiber for use in its construction of football fields, soccer fields and other artificial grass turf systems around the globe.
At a later date, Mattex changed its fiber formula and the manufacturing process that it used to create the fiber. FiledTurf alleges that Mattex stopped supplying the monofilament fiber that it had provided to FieldTurf to secure its business and, for some period of time, supplied a less expensive, less durable fiber. Mattex also made changes to the fiber’s extrusion process in order to reduce costs and raise output, further diminishing the durability of its fiber and increasing the likelihood of premature fiber degradation under certain conditions. Filedturf also alleges that Mattex failed to manufacture this cheaper, less durable fiber with an adequate amount of the ultraviolet (“UV”) stabilizers required to prevent loss of tensile strength, increasing its premature disintegration during the warranty period. In some cases, Mattex shipped FieldTurf fibers that contained no commonly known UV stabilizers. These changes resulted in batches of fiber that degraded prematurely and failed to meet contract specifications or live up to the terms of Mattex’s warranty. In February 2007, TenCate acquired Mattex and for some period of time continued supplying the reformulated Mattex monofilament artificial grass fiber (“Evolution fiber”).
FieldTurf claims to have built more than 100 fields using defective fibers that are degrading prematurely. In addition, more than 20 other fields are exhibiting visual defects in the form of streaking. The customers who received fields built with defective fibers –primarily high schools, colleges and universities whose football fields, soccer fields and other sports fields are built using artificial turf systems – are looking to FieldTurf to repair and, in many cases, fully replace their failing fields. As of March 1, 2011, FiledTurf claims it has spent approximately $4 million on these repairs, and faces pending and future claims of tens of millions of dollars as a result of failures of TenCate supplied fiber. Moreover, FieldTurf claims, it has suffered significant damage to its reputation. FiledTurf alleges that TenCate is directly responsible for these losses, estimated to be in excess of $30 million.
FieldTurf informed TenCate of its intention to assert claims arising from its supply of Evolution fiber and TenCate took the position that FiledTurf was breaching the current contract, which is due to expire on June 15, 2011, and stated that it would not continue to supply any artificial grass products to FieldTurf beyond March 2, 2011. The termination of the supply contract, FieldTurf claims, deprives it of three months’ supply of the fiber. TenCate had served as FieldTurf’s sole supplier of artificial grass fiber for the last four years.
TenCate supplies FieldTurf with other products as well. FiledTurf claims that TenCate’s refusal to fill FieldTurf’s pre-existing orders for products other than Evolution fiber will deprive FieldTurf of access to those products and could cause its default on a number of important, largescale projects, thereby harming its business and reputation.
[No. 15] Coquitlam, British Columbia, Canada: City takes artificial turf installers to court for botched job. One of the earliest posts on this website was entitled “The Royal Run-around: Who will fix the fields? What the industry does not want you to know,” http://www.synturf.org/industrynotes.html (Item No. 1), in which the author discussed the difficulties by buyers of artificial turf fields to seek redress for problems with artificial turf installations that can include problems with delivery, distribution system, shortages of materials, manufacturing defects, unqualified installers, lack of quality assurance and performance problems. A plaintiff’s nightmare scenario depicted in that article has come to pass for the mayoralty of Coquitlam.
According to a news item in The Tri-City News (January 27, 2011), “The city of Coquitlam has launched a civil suit against nearly a dozen companies involved in the construction of a $2 million artificial turf field at Percy Perry Stadium.” The field was installed in 2009. “In court documents, first filed in 2009, the city alleges that faulty design, construction and installation is to blame for the field’s drainage problems, which create ponds of water on top of the 11,000-square-metre turf.”
“‘As a result of these and any other defects, the project has failed to perform as promised or expected and the defects are such that they pose a substantial danger to users of the artificial sports field,’ the city said in its statement of claim.” “The companies involved in the construction of the field, the city alleges, misrepresented the quality and performance of the turf and drainage system.” “Coquitlam Mayor Richard Stewart said he has witnessed games where a soccer ball is kicked high through the air only to stop dead when it hits the wet ground.” According to the claim, “Problems with the field became apparent to city officials in December 2006 as construction neared completion.”
According to the allegations: Athletica Sport and Recreation Design provided consulting services for the design and planning of the field. That company subcontracted some of the work to engineering firm Stantec Consulting and geotechnical engineers Levelton Engineering. As for the field itself (carpet and infill), the city accepted the proposal of “Fieldturf Inc., a company that worked in conjunction with FieldTurf West Distributors, FieldTurf USA and FieldTurf Tarkett.” “Wilco Landscapers and Contractors provided the equipment, labour and materials for the installation of the field and Brock International was contracted to provide the drainage system, which is known as the Brockpad.” Source: Gary McKenna, “City sues over turf field,” in The Tri-City News, January 27, 2011, available at http://www.bclocalnews.com/news/114750464.html .
[No. 14] Oakland, California: AG Reaches Settlement to Reduce Children's Lead Exposure in Artificial Turf. On July 16, 2010, Attorney General of California, Edmund G. Brown announced a settlement that requires two of the largest makers and installers of artificial turf to eliminate nearly all lead from their products. “Because schools, public parks and daycare centers use artificial turf, it's critical that we minimize the amount of lead it contains,” Brown said. “Today's agreement will get the lead out of artificial turf in playgrounds and ball fields around the state.” The statement went on to say:
The settlement requires Georgia-based Beaulieu, LLC, the country’s largest supplier of artificial turf to retailers, and Field Turf, USA, the nation's largest maker and installer of artificial turf fields, to reformulate their products to reduce lead levels to negligible amounts.
The agreement follows a landmark settlement last year with AstroTurf, LLC. Collectively, the three companies control most of the artificial turf market, and their settlements with Brown’s office establish the nation's first enforceable standards applicable to lead in artificial turf.
Brown brought the case in 2008 against these companies for excessive lead levels after testing by the Center for Environmental Health found high concentrations of lead in their products. Brown's office confirmed these findings in independent tests.
Today’s settlement requires Beaulieu and FieldTurf to change their products so that they contain less than 50 parts per million lead. Lab results found some artificial turf products with more than 5,000 parts per million, which is more than 10 times state and federal guidelines for content in children's products. Lead is added to the products to keep colors vibrant.
There is no safe exposure to lead. In lengthy or high exposures, it is toxic to many organs and tissues including the heart, bones, intestines and kidneys. Since excessive exposure can interfere with development of the nervous system, it is particularly dangerous in children and can cause permanent learning and behavior disorders.
Lead in artificial turf usually enters the human body hand-to-mouth. Children playing on it get lead onto their hands and stick them into their mouths. Hand washing is a good way of reducing exposure.
In addition to reformulating their products, Beaulieu agreed to pay for wipe-testing of products in California daycare facilities, schools and playgrounds that were purchased after October 2004. FieldTurf took action in 2003 to reduce lead in its turf products. This settlement requires it to replace turf fields installed in California
before November 2003 at a discount if they test high for lead, and also to reduce the lead content of its new products.
The Los Angeles City Attorney and Solano County District Attorney joined Brown in the case against the three companies. AstroTurf paid $170,000 in penalties, grants and fees, and agreed to improve its products. Beaulieu will pay $285,000 and FieldTurf will pay $212,500.
[No. 13] Minneapolis / St. Paul, Minnesota: Metropolitan Sports Facilities Commission decides to ax FieldTurf after the Vikings expressed concerns about the safety of the company’s product; FieldTurf sues. The case is FieldTurf USA Inc vs Metropolitan Sports Facilities Commission, Hennepin County District Court, Case No. 27-CV-10-12766. It was filed May 21, 2010. According to a news report in the Minneapolis / St. Paul Business Journal (June 17, 2010), on June 17, Judge Robert Blaeser denied FieldTurf’s request for an injunction against the Metropolitan Sports Facilities Commission that had awarded the bid for the field replacement at Metrodome to Sportexe, a competitor. FieldTurf, which had installed the existing Metrodome turf in 2004, offered $458,561 for the replacement, while Sportexe’s bid came in at $495,000. The suit alleges that the MSFC’s selection was “arbitrary and capricious. ” In asking for a temporary restraining order to block Sportexe from proceeding with the planned turf replacement in July, FieldTurf asked the court to declare FieldTurf the proper awardee of the contract. “The MSFC, however, says it rejected FieldTurf’s bid after the Vikings expressed concerns about the safety of the company’s product — the main reason for replacing the Dome’s existing turf in the first place.” “’Medically, FieldTurf has proven to increase risk and severity of injury in NFL players,’ the Vikings said, according to documents filed by the commission in response to FieldTurf’s lawsuit.” “The team cites an NFL study that found the rate of anterior cruciate ligament injuries is 88 percent higher in games played on FieldTurf than in games played on grass.” “FieldTurf says the NFL findings were flawed and points to a pair of studies by Montana State University that declared FieldTurf to be safe. A 2004 study on high school sports and a 2010 study on college sports both found that games played on FieldTurf resulted in statistically fewer and less severe injuries than those played on natural grass; the college study was funded by FieldTurf, but the company did not have access to the data until after the report was published.” Source: “Judge won't block new turf at Metrodome — but fight by field-maker continues,” in Minneapolis / St. Paul Business Journal, June 17, 2010, available at http://twincities.bizjournals.com/twincities/stories/2010/06/14/daily42.html . Also see, John Vomhof Jr., “Metrodome field surface subject of legal turf war,” in Minneapolis / St. Paul Business Journal, June 18, 2010, available at http://twincities.bizjournals.com/twincities/stories/2010/06/21/story1.html ; “Report: Court documents claim FieldTurf increases injuries,” in New York Post, June 19, 2010, available at http://www.nypost.com/p/sports/jets/report_court_documents_say_fieldturf_NC315QsCMcSBHmqG7qkjPN?CMP=OTC-rss&FEEDNAME= .
SynTurf.org: Note: Judges deny motions for temporary injunction when it is not clear if the plaintiff can likely win on the merit, or if a grant of injunction would harm public interest. The suit can still go forward to the merits stage if the plaintiff chooses to continue after losing on the request of injunction.
[No. 12] Paoli, Pennsylvania: Fields of nuisance; fodder for a lawsuit? For most the term “nuisance” translates to what is annoying, inconvenient or bother. In law-talk, nuisance is a tort – a wrong – such as a use of property or conduct that that interferes with the legal rights of others by causing damage, annoyance , or inconvenience. There is also a notion called “trespass,” which means to commit an unlawful injury to the person, property, or rights of another. What we all expect is a peaceful enjoyment of our property without the repetitive and constant noise blurring from loudspeakers,light shinning too bright from stadiums, balls clearing our fences, and players entering our property in search of an errant ball. This is all with the compliment of playing fields that abut homes, especially in insensitive municipalities, where the abutters are dismissed as antisocial, anti-sports, anti-kids.
According to a news story on Main Line Media News (June 2, 2010),“For close to two years people in Paoli who live near the Delaware Valley Friends School have had problems because of the school’s new turf playing field that replaced a grass one. In a residential area, the school is surrounded by homes and apartments. Residents have been complaining about noise, lighting, traffic, privacy and safety since June of 2008 when the turf field was put in.” According to the residents, “the turf field can be used more often because it is not affected by weather in the same way that the grass field was. With the addition of lights, which shine into neighboring homes, the field is able to be used later into the night and longer into the season. Along with the lighting complaints, noise from the athletes and coaches along with cheering during games, as well as noise from the temporary lighting fixtures run by generators, has been a constant nuisance.” “While noise, lighting and traffic may be affecting all residents, one major issue has been affecting certain people more than others. When the turf field was installed, a buffer of tall trees that stood between the school and the homes to the east of the field was removed simultaneously. Without the buffer, these residents now have an up-close view of every practice and game that takes place on the field, and in turn have lost the privacy they once had.” “Residents want the noise, traffic, lighting and safety concerns solved and would like to see the buffer reinstated to provide privacy.” Source: Blair Meadowcroft, “Neighbors say new turf DVFS field a nuisance,” on Main Line Media News, June 2, 2010, available at http://mainlinemedianews.com/articles/2010/06/02/main_line_suburban_life/news/doc4c067acc9bfc8812225892.txt and video link at site.
[No. 11] Cobb County, Georgia: Lawsuit suspends school district spending on artificial turf fields. According to a news story on CBS Atlanta (February 24, 2010), “A lawsuit against CobbCounty schools has halted $16 million in renovations to athletic fields. Cobb County Schools want to install Astroturf at all of their high school athletic fields, but lawyers for the man behind the suit, Walter “Pete” Borden, said spending the money on anything not related to education is illegal. The question is whether under current Georgia education law the funds approved by the district in 2008 have to be designated and used for educational purposes. When a special purpose local option sales tax (SPLOST) is approved, as it was in 2008, the County has to designate which specific projects the money will be used for and it can only use it for those specific projects. For now, “Cobb County Schools had planned on buying and installing the Astroturf fields in the coming months, but now they’re stalled until a superior court judge says otherwise. No court date has been set for a showdown between the school district and lawyers.” Source: Steve Kuzj, “Cobb County Schools Stalled In Plan For New Athletic Fields,” on CBS Atlanta, February 24, 2010, available at http://www.cbsatlanta.com/news/22663499/detail.html .
[No. 10] Cobb County, Georgia: Resident sues school board over planned artificial turf fields. According to a news story in The Atlanta Journal-Constitution, on February 9, 2010, Walter G. Borden, a CobbCounty resident, filed suit in Cobb Superior Court against the Cobb School Board, seeking “to block CobbCounty's plan to spend millions of dollars at 16 public high schools for the installation of artificial turf.” The plaintiff alleges that the planned artificial turf fields do not qualify as “capital improvement to an ‘educational facility’ as required by state law.” For more, go to Mashaun D. Simon, “Lawsuit filed to block artificial turf at Cobb schools,” in The Atlanta Journal-Constitution, February 11, 2010, available at http://www.ajc.com/news/lawsuit-filed-to-block-299324.html?cxtype=rss_news_128746
[No. 09] Los Angeles, California: Unified School District sues turf installer for nondisclosure of harmful substances. According to a news report by the Court House News Services (January 29, 2010), “Los Angeles Unified School District says the company it hired to install artificial turf on school playgrounds did not inform it that it would underlay the turf with carcinogens - carbon black and lead, in crumb rubber - that would come into direct contact with children. LAUSD hired Forever Green Athletic Fields of the West in 2005 to artificial turf systems on playgrounds and playing fields at 13 schools. In its Superior Court complaint, the school district says it knew that one of the materials used would be crumb rubber, which contains lead and carbon black. But LAUSD says it did not know that the chemicals would be in direct contact with children who play on the turf. The state of California says lead and carbon black are known to cause cancer, reproductive harm, neurological harm, decreased IQ and developmental toxicity. The chemicals can be inhaled or absorbed through the skin. LAUSD says it ‘understood that the crumb rubber would be applied only as an underlayment, as a foundational layer beneath the upper artificial grass turf,’ and that it would not be in direct human contact. But Forever Green used it as ‘infill’ between plots of synthetic grass in places where it would be in contact with children and exposed to intense sunshine and heat, which contribute to the breakdown and release of chemicals, according to the complaint. LAUSD claims Forever Green knew that the crumb rubber was being sold throughout California in large quantities. The chemical exposure was ‘knowing and intentional,’ the district says. The district issued a Proposition 65 violation notice in November 2009 and sent it to the California Attorney General and the Los Angeles City Attorney. The district alleges violation of Proposition 65, breach of contract, product liability and negligence. It seeks civil penalties, compensation and costs.” Elizabeth Banicki, “L.A. Schools Worry About Toxic Playgrounds,” in Court House News Service, January 29, 2010, available at http://www.courthousenews.com/2010/01/29/24191.htm or click here.
[No. 07] California: Consent judgment entered against one turf manufacturer; other cases pending. According to a press release by the Office of the Attorney General of California (August 14, 2009), “Fighting to ensure the safety of children’s playgrounds and ball fields, Attorney General Edmund G. Brown Jr. today signed off on an agreement requiring Georgia-based AstroTurf, LLC to virtually eliminate lead from its artificial grass, creating the country's first enforceable lead standards for artificial turf products.” The Press Release is available at http://ag.ca.gov/newsalerts/release.php?id=1782or click here. The Consent Judgment entered in the case is available at http://ag.ca.gov/cms_attachments/press/pdfs/n1782_astroturf_cj,_final-signed.pdfor click here. For the previous reporting on this case, see http://www.synturf.org/lead.html (Item No. 13). Here are a few excerpts from the Press Release:
“In 2008, Brown filed suit against AstroTurf and two other companies [FieldTurf Tarkett and Beaulieu of America] for excessive lead levels after testing by the Center for Environmental Health (CEH) found high levels in artificial turf products. Brown's office independently tested AstroTurf and other artificial turf products and confirmed CEH's findings. AstroTurf immediately took steps to begin reformulating its products.”
“Today's consent judgment requires AstroTurf to reformulate its products so that they contain less than 100 parts per million (ppm), and to further reduce lead levels to 50 ppm by June 2010. Lab results found that some AstroTurf products contained more than 5,000 ppm lead. Lead was added to keep the colors vibrant over time. AstroTurf will be prohibited from selling any existing stock that doesn't meet these standards.”
“AstroTurf will also provide a grant of $60,000 to the Public Health Trust to fund "wipe testing" of dislodgeable lead on artificial turf fields at daycare centers, schools and public playing fields in California. If the level of dislodgeable lead exceeds the specified replacement level, AstroTurf will provide replacement turf to the daycare center, school or public field at no cost.”
“AstroTurf will also provide a mailed warning to all customers who purchased its products in California in the past five years. The warning will (1) inform customers that the turf products contain lead; (2) explain "good maintenance practices" that can effectively reduce exposures to lead; and (3) advise the customers of the availability of the program to test and replace old turf products. AstroTurf will also establish a website to provide information to the public on lead content in its products.”
“In addition to its obligation to replace products that exceed acceptable lead levels, the company will pay $170,000 in civil penalties, grants and attorney fees.”
SynTurf.org Note: In September 2008, California filed a complaint for civil penalties and injunctive under Proposition 65 because the named artificial turf manufacturers and vendors had failed to provide clear and reasonable warnings that their artificial turf products contain lead, and that use of, and contact with, those products results in exposure to lead, a chemical known to the State of California to cause cancer and reproductive harm. Under Safe Drinking Water and Toxic Enforcement Act of 1986, Health and Safety Code section 25249.6 businesses must provide persons with a “clear and reasonable warning” before exposing individuals to these chemicals, and that the Defendants failed to do so.
Under the consent judgment, No portion of the turf products may have lead levels in excess of 50 ppm; except for field lines and markings (such as yard lines, goal lines and team names or logos) may not have 100 ppm or less. While the 50 ppm level of lead in the product is laudable one must seriously question whether it also does not represent a concession to the artificial turf industry. The AmericanAcademy of Pediatrics “recommends” 40 ppm or less as “safe,” if at all.
Under the consent judgment, AstroTurf will provide “a grant of $60,000 to the Public Health Trust to fund “wipe testing” of dislodgeable lead on artificial turf fields at daycare centers, schools and public playing fields in California. If the level of dislodgeable lead exceeds the specified replacement level, AstroTurf will provide replacement turf to the daycare center, school or public field at no cost.” This too is a concession to the artificial turf industry and owners/operators of turf fields. “Wipe testing” provides a snap shot of an amount of lead that the wipe can pick up from the artificial carpet or the infill at any given time. “Wipe testing” right after a rain event or irrigation will not read the same level of lead than in an unwashed state. Testing in the earlier months of an installation would not result in the same reads as the time when the carpet becomes worn. “Wipe test” will say nothing about the total load of dislodgeable lead available or present in the product.
According to Christine Gasparac, a spokeswoman for the California Attorney General’s Office, said the state is “exchanging information and in productive settlement negotiations” with FieldTurf Tarkett and the Beaulieu Group. A.J. Perez, “AstroTurf to eliminate lead from fields,” in USA TODAY, August 14, 2008, available at http://www.usatoday.com/sports/2009-08-14-astro-turf-lead-fields-agreement_N.htm
[No. 06] South Dakota Supreme Court awards $500,000 over turf injury. As reported in March of this year [see http://www.synturf.org/lawsuits.html (Item No. 3)], James and Rose Klutman sued the Sioux Falls Indoor Football Storm after their son, Gaylan, then 17, was injured during a promotional event back in 2002. Gaylan injured his knee during a game of two hand touch on the Storm’s artificial turf field. Gaylan claimed that he tore the ligaments in his knee when he caught a pass and turned to run when his foot got caught in a fold or flap in the turf. The complaint alleged that the defendant arena knew that the turf was in bad shape when it invited spectators to play on it. The lower court awarded Gaylan $500,000. Storm appealed. According to a news report on Kelo TV (July 10, 2009), the Supreme Court of South Dakota affirmed the lower court’s award of $500,000 to the Klutmans. “He turned to run and his foot got caught in the turf and of course his foot stopped, but his knee snapped and the rest of him kept going ‘til it got to be where he disrupted every ligament in his knee," attorney Jack Der Hagopian said. He was injured so severely, his knee required extensive surgery. “The swelling or trauma of the twisting, that's permanently injured so he'll never get that function back,” Der Hagopian said. The danger with this turf lies between the seams where the pieces of turf come together, according to the report. Source: “Turf War Over: Storm Owes $500,000,” on KELO TV (Sioux Falls, SD), July 10, 2009, text available at http://www.keloland.com/News/NewsDetail6371.cfm?Id=87126
[No. 05] San Carlos, California: Turf controversy lands in court. SynTurf.org, Newton, Mass. May 16, 2009. On May 13, 2009, the community group Save San Carlos Parks sued the City of San Carlos and the San Carlos City Council. Fora background on this story, see http://www.synturf.org/grassrootsnotes.html (Item No. 52) and pages cited therein.
Filed at San Mateo County Superior Court, the suit concerns the City Council's decision in April to certify the Mitigated Negative Declaration (MND) for the replacement of the playing surface of the Lower Highland Athletic Field with a Synthetic Playing Surface. Click here for the Complaint.
The Plaintiffs are represented by the legal firm of Kenyon and Yates in Sacramento, California. San Carlos has retained the law firm of Cassidy, Shimko, Dawson & Kawakami in San Francisco to defend it. The City Attorney estimates that the cost to defend the City against this lawsuit will be in the thousands of dollars. Meanwhile As a result of the litigation, the community meetings set by the City for May 21, 2009 and May 27, 2009 to meet with the neighbors of the Lower Highlands Field area to discuss the athletic field conversion project have been postponed indefinitely.
In a press release, dated may 14, 2009, to SynTurf.org, Save San Carlos Parks took issue with the City for its inadequate environmental review of its decision to convert Highlands Park from natural grass to synthetic turf, the City thus running afoul the requirements of the California Environmental Quality Act (CEQA). “No one wants to go to court over this issue. We proposed a settlement conference to try to find a compromise, but unfortunately the City declined that offer. That left us no choice,” said Harris. “In their rush to move forward they have failed to consider the significant adverse impacts on the community.”
Save San Carlos Parks says that a legally adequate environmental review will, among other things, do at least four things: (1) Evaluate alternative surfaces and compare their impacts or benefits to the City’s synthetic turf proposal; (2) Analyze the health impact of synthetic turf and crumb rubber on young children; (3) Address community concerns over the required infrastructure to support the increased traffic and parking; (4) Analyze he City’s economic viability to support this park over the long run.
The Complaint charges that the City of San Carlos prepared and adopted an Initial Study/Mitigated Negative Declaration (“IS/MND”) that failed to satisfy the procedural and substantive mandates of CEQA.The IS/MND violated CEQA because there was substantial evidence in the City’s administrative record that supported a “fair argument” that the project may have significant, adverse environmental effects, thus requiring the preparation and certification of an environmental impact report (“EIR”) prior to approving the project. Further, IS/MND failed to adequately investigate the project’s potentially significant adverse environmental effects. Te IS/MND failed to incorporate changes to the project or to identify legally adequate mitigation measures with enforceable performance standards that will clearly mitigate all of the project’s potentially significant, adverse environmental effects to less-than-significant levels.
The City Council on its part, Complaint alleges, prejudicially abused its discretion by adopting the IS/MND and failing to incorporate changes to the project or adopting legally enforceable mitigation measures that reduced or avoided the project’s potentially significant effects to less than significant levels prior to approving the project. It prejudicially abused its discretion by invalidly deferring the adoption of mitigation measures until after the adoption of the IS/MND and approval of the project.
The Complaint alleges that “substantial” evidence in the record of the project identified the following potentially significant adverse effects: the potentially significantadverse impacts associated with “crumb rubber” in synthetic turf, made from ground up car and truck tires, causing inhalation and ingestion of toxic and carcinogenic chemicals; potentially significant impacts associated with increased risks of bacterial infections; potentially significant increased risk of heat exhaustion due to elevated temperatures on synthetic turf fields; potentially significant adverse impacts on water quality caused by pollutants released from synthetic turf; potentially significant adverse impacts associated with the flammability of the synthetic turf; potentially significant adverse impacts associated with an increase in automobile traffic and parking on narrow park access roads; and potentially significant impacts associated with the loss of the park’s open space for multiple public uses.
The Complaint seeks a restraining order to preserve the environmental status quo ante at the project site until the matters in this litigation can be brought to full resolution through entry of a final judgment upon the completion of any available appeals. As part of the final judgment, the petitioners request a permanent injunction prohibiting the City from moving forward with any aspect of the project based on the project approvals challenged in the litigation. For violations of CEQA, the petitioners want the Court to find that the City’s approval of the project was void from the beginning. The petitioners also request the City to pay petitioner’s reasonable attorneys fees related to these proceedings upon the filing of a proper motion.
[No. 04] California: Turf lawsuit update. SynTurf.org, Newton, Mass. May 3, 2009. OnSeptember 2, 2008, the State of California brought suit against three manufacturers of artificial turf fields after tests showed dangerous levels of lead. The readings of the lead levels from some 12 fields around the state violated Proposition 65 (The Safe Drinking Water and Toxic Enforcement Act of 1986) which isadministered by Cal/EPA's Office of Environmental Health Hazard Assessment (OEHHA). It requires warning label for products that contain harmful chemicals, including lead. For background, seehttp://www.synturf.org/lead.html (Item No. 31). The parties to the lawsuit against the turf manufacturers are in negotiations, and some (undisclosed) agreements may have been reached already. The parties involved will re-convene in July. The discussions have been revolving around the product and how to deal with fields already in use. Meanwhile, some of the companies are already reworking their products to align with Proposition 65.
[No. 03]Vermillion, South Dakota: Injured player taken turf to the mat! Later in March 2009, the South Dakota's Supreme Court will be hearing 9 cases. In one of these cases, the professional indoor football team Sioux Falls Storm is appealing a 2002 court ruling which gave $500,000 in damages to Gaylen Klutman, who injured his knee while playing football on the team's artificial turf field. The Storm wants the Supreme Court to review why the lower court limited expert testimony concerning artificial turf and why the lower court denied a motion for a new trial based on new evidence in the case. Source: Brian Allen, “The South Dakota Supreme Court will hear several appeals cases in just over two weeks,” on KSFY-TV, (March 6, 2009), available at http://www.ksfy.com/news/local/40883292.html?video=YHI&t=a (video and text), alsohttp://www.ksfy.com/news/local/40883292.html (video and text). Klutman, age 23, claims that he tore the ligaments in his knee when he caught a pass and turned to run when his foot got caught in a fold or flap in the turf. The complaint alleged that the defendant arena knew that the turf was in bad shape when it invited spectators to play on it. Statement of the issues on appeal are found here found at http://www.sdjudicial.com/downloads/24835.pdf .
[No. 02] New York City: Federal judge rules against phthalates: Should turf be next?On Tuesday, February 3, 2009, US District Judge Paul Gardephe in Manhattan ruled that “[t]oys containing a plastic-softening chemical [phthalate] linked to infertility and testicular cancer in men must be removed from store shelves.” According to Bloomberg News, the ruling “rejected the US Consumer Product Safety Commission’s claim that legislation banning the manufacture of toys containing phthalates by that date didn’t also bar the sale of toys already made.” The CPSC “has decided to seek neither a stay nor an appeal,” the agency told Bloomberg News. The suit was brought by the Natural Resources Defense Council (Aaron Colangelo, attorney), a New York-based nonprofit organization, which was joined Public Citizen, a Washington-based consumer advocacy group. Source: Bloomberg News, “Judge orders toys off store shelves: Banned chemical prompts ruling, in The Boston Globe, February6, 2009, available at http://www.boston.com/business/articles/2009/02/06/judge_orders_toys_off_store_shelves/ .
SynTurf.org Note: Artificial turf has phthalates. Phthalates are linked to infertility and testicular cancer, among other things. The Congress and EU bans them in some products. Yet it is okay for our kids to be exposed to it when it comes to turf fields. Hello: is anyone out there!? And – this was the same US Consumer product safety Commission that ruled last summer on the safety of lead-laden turf fields! For background on phthalates, seehttp://www.synturf.org/phthalates.html. For background on phthalates in turf, seehttp://www.synturf.org/wrapuparticles.html (Item No. 09). For a peer-critique of the CPSC opinion on lead-laden artificial turf fields, seehttp://www.synturf.org/cpsc.html .
[No. 01] Dashon Jenkins vs. MorenoValleyUnifiedSchool District and others (filed 2008). SynTurf.org, Newton, Mass. December 19, 2008. For Dashon Jenkins, a football player at ValleyViewHigh School, September 8, 2007, began like any other game day. By the time the game ended against Great Oaks High, Jenkins would not play football ever again. For, you see, Jenkins’ football cleats failed to break loose from the artificial turf surface and so his ankle and leg received the full force of the opposing player’s weight, causing Jenkins’ leg to break in two places. Due to complications in receiving treatment for his injuries, Jenkins has sustained a leg wound that became infected, which resulted in the need for approximately 12 additional surgeries to date, his leg muscle had to be removed, and he lost the use of his left leg and now has to wear a leg brace for the remainder of his life. All of this is because a host of bad actors failed in their duty of care, to inform players that one should not be playing on artificial turf fields with cleats that are not designed for artificial turf fields. As a member of the Valley View football team, Jenkins had only played games on natural grass fields and had never played any football games on a surface covered with artificial turf until that fateful day.
Dashon Jenkins' plight is now the subject a lawsuit filed in March 2008 against the responsible school districts, the providers of medical services, and the manufacturer of the artificial turf field, and maker and seller of the football cleats, and others. Filed in the Superior Court of the State of California for the County of Riverside (Case No. RIC 494617) in March 2008, the suit seeks unspecified compensatory and special damages involving, among other things, Jenkins’ past medical services, a life-care plan, future medical care, psychological care and treatment, counseling, home care, rehabilitation, physical therapy, loss of future earning capacity and emotional distress.
[No. 00] Chicago, Illinois: Turf field controversy lands in court. In August 2008 the Park District approved a plan to install an artificial turf soccer field at Lincoln Park, in the northeast of the city. The proposal was not without its opponents whose concerns were ignored by several city agencies -- in a manner that is typical of the usual sort of David-versus-Goliath struggle that is waged by the grassroots activists and residents against the politicians and their patrons in the sports and business communities.
The suit alleges that the soccer field is toxic because the field’s artificial turf contains lead. The suit seeks an injunction against the construction of the turf field at the south end of the park and removal of all artificial turf from the field. The suit alleges that artificial turf can cause serious health problems for children and adults when the crumb rubber’s chemical compounds are released into the air and ground water. On environmental grounds, the suit alleges that the defendants have failed to design a drainage system that protects Lake Michigan, which will receive the drainage, discharge and runoff from the field directly and without any treatment or processing.
The complaint also alleges that the designated site immediately borders the heavily traveled lanes of Lake Shore Drive traffic, which further exposes children to the cumulative toxic effect of constantly breathing exhaust fumes from automobiles as well as polluted contaminants from factories carried by prevailing winds and deposited on the lakefront park. For a news paper account of this story, please see “Group claims controversial Lincoln Park soccer field is toxic,” in Chicago Sun-Times, October 14, 2008, available at http://www.suntimes.com/news/metro/1221547,lincoln-park-soccer-101408.article .