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In re: Brookhaven Nat'l Lab. Trichloroethylene (TCE) Cases

Breach of Directives on TCE Use Is Exception to EEOICPA's Exclusivity of Remedy Provisions

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ADDITIONAL INDEX NUMBER 19-CV-5475; 19-CV-57291 MEMORANDUM OF DECISION & ORDER The amended complaints in these cases chronicle the alleged history of use and misuse of trichloroethylene (“TCE”) at Brookhaven National Laboratory (“BNL” or “the Lab”), and the exposure of these plaintiffs, others and the surrounding environs to this carcinogenic chemical, as well as the resulting injuries. These allegations, accepted as true for the purposes of the instant motions, provide a disturbing and comprehensive chronicle of dangerous actions and inaction in this regard. The complaints allege that BNL delegated responsibility for safe handling and mitigation of certain toxic and radioactive substances to its “operating contractors” — Associated Universities, Inc. (“AUI”) and Brookhaven Science Associates (“BSA”) (collectively, “employer-defendants”) — during the relevant periods. See, e.g., Amended Complaint at

65-76, Marino v. Brookhaven Science Associates, L.L.C. et al, No. 19-CV-4839 (filed Oct. 9, 2019), ECF No. 19. Specifically, defendant AUI was contracted to serve as the “operating contractor” at BNL from 1947-1998, while defendant BSA filled that role thereafter. Id. One of the dangerous substances for which the employer-defendants were responsible was TCE in various forms, which included products manufactured, marketed, sold and shipped by defendants Dow Chemical Co. (“Dow”) and Zep, Inc.(“Zep”) (together with the employer-defendants, “defendants”). Id. at

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