Analysis: Signs suggest IBM working on settlement

Plaintiffs' attorneys refuse to discuss case

Contractors for IBM Corp. install a well at North Street and McKinley Avenue as part of a larger effort to monitor and clean underground pollution in Endicott. The pollution, linked to the nearby IBM campus, has prompted legal action from residents and business owners.

DIOGENES AGCAOILI JR. / Press & Sun-Bulletin

Denis Callinan, an East Fishkill resident whose family's well was polluted with chemicals linked to IBM Corp., said a recent settlement with the company was a "sellout" because it lacked an apology.

Photo provided

ENDICOTT -- A number of signs indicate IBM Corp. is quietly negotiating a settlement with residents and business owners who claim pollution from the company degraded their property and in some cases made them seriously ill.

If Endicott follows the course of a similar case in East Fishkill, a settlement would keep details of IBM's environmental housekeeping and evidence that it hurt health and property behind closed doors, and would prevent a trial. It would also come without an admission of guilt and prohibit the terms of the settlement from being disclosed.

These signs point to negotiations in the works:

* Plaintiffs' attorneys, once unyielding in public criticism of IBM's environmental record and its damage to health and property, are now refusing to talk about any aspect of the case.

* The abrupt silence began in January after lawyer Stephen Schwarz said both sides were close to an agreement that would

allow them to negotiate without the pressure of an approaching deadline for litigation.

* In the absence of an agreement to suspend litigation, some residents seeking damages for certain health claims would have to file suit within a year of learning they were exposed to something that might have made them sick. Endicott residents began learning pollution was entering some properties in mid-February 2003.

* To meet that deadline, lawyers said they expected to file suit on behalf of more than 600 clients in state Supreme Court by the end of 2003. Nearly three months has past since that target, and they have not filed any complaints against the company.

* In a similar case involving some of the same attorneys, IBM Corp. recently offered a settlement to 62 East Fishkill families who had threatened a civil lawsuit against the company.

The East Fishkill settlement, which came after an agreement to suspend litigation, does not hold IBM responsible for the damages. It also forbids any party to disclose details of the settlement.

A settlement in Endicott is likely to please some and anger others.

Benefits typically include a relatively speedy and inexpensive resolution, compared to cases involving trials and appeals that can take the better part of a decade, or more, and still end in a settlement.

In East Fishkill, the settlement was offered March 1, less than three years after the federal Environmental Protection Agency linked the pollution to IBM Corp.

But some believe a settlement is an unwanted compromise. They include East Fishkill resident Denis Callinan, who characterized the IBM settlement as a "sellout" because it held the company blameless for pollution that contaminated his and others' drinking wells.

It also prevents the public from hearing relevant testimony and evidence that would come out in a trial, and a public accounting of events related to pollution.

"These people messed with my family," said Callinan, an organizer of a citizens group called Concerned Residents of East Fishkill. "I want an apology. I want an acceptance of guilt from IBM."

Callinan's wife suffers from kidney damage that he said is related to pollution in the family's well, which in April 2000 tested positive for an industrial solvent called perchloroethylene 10 times greater than the regulatory limit. One of his children also suffered life-threatening allergic reactions after showering in the water. The reactions stopped after a filter was installed in their home, he said.

Alan Turnbull, Callinan's counterpart in Endicott, said a settlement might be a good thing.

"We'll be happier than if they prolonged it indefinitely, depending on the outcome," said Turnbull, organizer of Residents Action Group of Endicott.

IBM spokesman Todd Martin would not comment on the case.

Philip Johnson, part of a team of lawyers representing Endicott residents, said Wednesday he would not comment on the case. The team includes Henry Gluckstern, Callinan's attorney; Schwarz; and Gerald Williams, who also worked on the East Fishkill case.

Johnson, of Levene, Gouldin & Thompson in Vestal, said last week that the East Fishkill settlement "is a relevant piece of information because it is an example of how things can be handled and how agreements can be reached."

During presentations to residents last year, Schwarz and others charged that pollution, including a chemical called trichloroethylene, was the product of IBM's recklessness with solvents used in its circuit board assembly plant on North Street. The chemicals, including TCE, are known to cause cancer and other illnesses in people exposed to enough of them.

Early last year, tests showed traces of chemical vapors, a class called volatile organic compounds, were entering homes and businesses in a 300-acre area south of the plant. IBM has since offered to install ventilation systems for about 480 property owners. About 30 property owners declined; another 25 have not been reached, Martin said Wednesday.

In June, Schwarz, a lawyer with the Rochester firm of Faraci & Lange, told an assembly of about 300 residents the pollution was no accident.

"I highly doubt this is a spill," he said. "What you have here is a systematic dumping of chemicals."

The state Department of Environmental Conservation has ordered the company to accelerate the cleanup, which began after a chemical spill reported on the IBM campus in 1979 led to the discovery of a broader problem affecting the village.

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