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[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

https://www.youtube.com/watch?v=JJVcuQexBOM&list=PLkD8RlY3pcN6w3zx2IoaWn6ItQTjePCk&index=32&t=0s (Published on Feb. 6, 2019) beginning at 1:02:00 mark.

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).

- New York State Department of Health, Information About Crumb-Rubber Infilled Synthetic Turf Athletic Fields (September 2018);

- Children’s Environmental Health Network, FAQ: Crumb Rubber & Artificial Turf (December 2017);

- EHHI, Artificial Turf: Chemical Analysis (2018);

- University at Albany, Synthetic Turf Chemicals (2007);

- TURI UMass Lowell, “Athletic Playing Fields and Artificial Turf: Considerations for municipalities and Institutions" (August 2020).

- TURI UMass Lowell, “Per- and Poly-fluoroalkyl Substances [PFAS] in Artificial Turf Carpet February 2020).

- Rachel Massey, et al., “Artificial Turf Infill: A Comparative Assessment of Chemical Contents,” 30 (1) New Solutions: A Journal of Environmental and Occupational Health Policy 10 (2020).

- 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. 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.

The AG’s statement is available at http://ag.ca.gov/newsalerts/release.php?id=1953 or click here. For FiledTurf consent judgment click here. For Beaulieu consent judgment click here. 

[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 Cobb County 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 Cobb County resident, filed suit in Cobb Superior Court against the Cobb School Board, seeking “to block Cobb County'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. 08] Queens, NY: Falcons want their grass field. According to a news report on NY1 News (September 17, 2009),  “A youth football league in Queens says it is being forced to move away from a grassy field at Juniper Valley Park for a synthetic field miles away. Parents are concerned about their children playing on turf, because of possible toxins in the field. As a result, the Queens Falcons are suing the city over the move.” “The turf burns us and grass, you usually bleed and that’s a football sport, so grass is ten times better,” said one player. For more on this story see “Team Sues City Over Queens Turf Switch,” on NY1 News, September 17, 2009, available at http://www.ny1.com/Content/Top_Stories/105939/team-sues-city-over-queens-turf-switch/Default.aspx or see “Queens Falcons fight for home” at http://abclocal.go.com/wabc/story?section=news/local&id=7019798 ; “Parks Dept. sacks Queens grid kids” at http://www.nypost.com/p/news/local/parks_dept_sacks_queens_grid_kids_hL2Mg4gKETLOuaitf1HhBN ; and “Youth football league sues Parks Dept. for kicking its teams off longtime playing field in Queens” at http://www.nydailynews.com/ny_local/queens/2009/09/17/2009-09-17_qns_youth_football_league_sues_parks_dept_for_kicking_its_teams_off_longtime_pla.html#ixzz0RQU20lPC .

[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=1782  or 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.pdf  or 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 American Academy 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

and video available at http://www.keloland.com/videoarchive/index.cfm?VideoFile=071009storm .

The court decision is available at http://www.sdjudicial.com/opinions/downloads/y2009/24835.pdf  or click here. 

[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. For  a 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 significant  adverse 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.

For a newspaper account of this story, see Mike Rosenberg “San Carlos residents sue city over synthetic turf, in San Mateo County Times, May 15, 2009, available at http://www.insidebayarea.com/sanmateocountytimes/localnews/ci_12381695 .

[No. 04] California: Turf lawsuit update. SynTurf.org, Newton, Mass. May 3, 2009. On September 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 is  administered 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, see http://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), also http://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, see http://www.synturf.org/phthalates.html. For background on phthalates in turf, see http://www.synturf.org/wrapuparticles.html (Item No. 09). For a peer-critique of the CPSC opinion on lead-laden artificial turf fields, see http://www.synturf.org/cpsc.html .

[No. 01] Dashon Jenkins vs. Moreno Valley Unified School District and others (filed 2008). SynTurf.org, Newton, Mass. December 19, 2008. For Dashon Jenkins, a football player at Valley View High 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.

Everything was moving along just swimmingly for the construction project -- until Tuesday, October 14, 2008, when Protect Our Parks (www.protectourparks.org), a not-for-profit corporation (http://www.cklpp.org) and Eurydice Chrones, a Lincoln Park resident, filed a three-count lawsuit against, among others, the Latin School of Chicago, Park District, Board of Commissioners, Chicago Plan Commission, City of Chicago, Commissioner of Chicago Department of Environment, Chief Environmental Officer of City of Chicago, the turf manufacturer and others. The press release announcing the commencement of litigation is available at http://www.cklpp.org/assets/2008/10/15/Release__Lead_Suit_10-13.pdf or click here. The Complaint is available at http://www.cklpp.org/assets/2008/10/15/Pop_Environmental_Health_Complaint.pdf or click here. For more information on the suit and how to help in the cause, contact The Committee to Keep Lincoln Park Public at info@cklpp.org (telephone: 312-276-5165).

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.