The ARIA semiconductor fabrication facility operated less than three hundred feet from thousands of homes where Gjovik lived in 2020. Also within 300 from the building were two public parks (Creekside Park and Meadow Park), picnic tables, outdoor fitness stations, and a children’s playground. Within 1,000 feet of ARIA there was also a church, a school, an elder care facility, and the San Tomas Aquino Creek and public trail. (San Tomas Aquino Creek flows to the Bay and then into the Pacific Ocean).
Apple intentionally vented its fabrication exhaust – unabated – and consisting of toxic solvent vapors, gases, and fumes – into the ambient outdoor air. The factory was one story, while the apartments were four stories tall, creating a high likelihood that Apple’s factory exhaust entered the interior air of the apartments through open windows and the 'fresh air intake' vents.
Apple was fully aware of this facility and its operations, including the vast amount of hazardous materials and hazardous waste, as every year, Apple submitted a financial assurance document to the Santa Clara Fire Department and HazMat agency, which detailed hazardous waste treatment and disposal operations, and is personally signed by Apple’s Chief Financial Officer, Luca Maestri – including affixing a company seal. Each financial assurance filing also attached a detailed confirmation letter from Apple’s third-party auditor, E&Y, on behalf of Apple. Maestri was also on the email distribution list for notification of hazardous waste violations at the facility.
Upon initiating operations at ARIA, Apple was quickly cited for building, environmental, health, safety, and fire code violations in at least 2015 (stop work order due to construction without permits), 2016 (spill of cooling water into storm drains, fire code and CalASPA violations, health and safety code violations, failure to properly monitor wastewater discharge), 2019 (wastewater testing violations), 2020 (fire code violations, using two EPA identification numbers, inaccurate hazmat inventory data, no spill plans or training, no business permit, no signature from supervisor on records, and failure to properly monitor wastewater discharge again).
In February 2020, Gjovik moved into a large, new apartment complex at 3255 Scott Blvd (adjacent to ARIA) and quickly became severely ill. Gjovik suffered severe fainting spells, dizziness, chest pain, palpitations, stomach aches, exhaustion, fatigue, and strange sensations in her muscles and skin. Gjovik also suffered bradycardia (slow heart rate), volatile blood pressure with both hypertension and hypotension and a high frequency of premature ventricular contractions (an arrhythmia). From February 2020 through September 2020, Gjovik was screened for multiple severe and fatal diseases and disorders, including Multiple Sclerosis, brain tumors, deadly arrhythmias, and Neuromyelitis Optica – instead, all of Gjovik’s symptoms were consistent with chemical exposure. Due to the solvent exposure, Gjovik also suffered skin rashes, burns, and hives, and her hair fell out and she had a shaved head for nearly a year as the bald patches slowly grew back.
Due to the sudden illness, Gjovik visited the Emergency Room on February 13 2020, and Urgent Care (at AC Wellness, Apple’s for-profit in-house clinic) on February 20 2020. Gjovik subsequently consulted with dozens of doctors, who screened her for all sorts of diseases, subjecting Gjovik to extensive blood draws, urine samples, injections, and scans – including potentially dangerous procedures like MRI and CT scans with contrast, of which Gjovik had multiple. Gjovik was too sick to work and went on disability.
Gjovik transitioned her medical care to a different clinic and provider after her Apple primary care provider at AC Wellness refused to help her triage her 2020 medical issues (due to exposure to Apple’s factory exhaust). Instead she suggested Gjovik could be suffering from anxiety, and enrolled Gjovik in an Apple internal user study related to blood pressure, requiring Gjovik share her iPhone medical and fitness data with Apple, and participate in weekly life coaching sessions (while being exposed to Apple’s solvent vapor and gas exhaust).
While sick in 2020, Gjovik would wake up occasionally at 3 AM feeling like she was dying and with symptoms of heart failure and asphyxia. Heart monitoring showed arrhythmias, bradycardia, and low blood pressure. On September 2 2020, Gjovik discovered elevated levels of volatile organic compounds (“VOCs”) in her indoor air. What immediately captured Gjovik’s attention was the arge spike in VOCs had occurred the night prior, around 3 AM, while she had been suffering from one of these “dying” spells.
Gjovik sought out multiple occupational and environmental exposure doctors, who told Gjovik that all of her symptoms were consistent with solvent and other chemical exposures. After Gjovik discovered her medical issues at the apartment were due to a chemical emergency, Gjovik quickly filed complaints with Santa Clara City HazMat/Fire Department, California EPA DTSC and Air Resources Board, and US EPA. She also called Poison Control, who said what she described also sounded like Benzene exposure. (Apple reported it was exhausting Benzene into the air).
City Fire Department records for ARIA contain at least sixteen chemical spill/leak incident reports at ARIA within only three years. These incident reports included eight confirmed leaks/spills: leaks of phosphine and silane on June 1 2019 at 9:17 AM; a phosphine leak on October 21 2019 at 11:06 PM; a 17.5 PPM Tetraethyl Orthosilicate (“TEOS”) leak on July 17 2020 at 8:58 AM; a major phosphine leak on April 30 2021 at 8:29 AM (peaking at 32 PPB and 0.0001145 pounds of the gas vented into the exterior ambient air); a 5% fluorine gas leak on April 18 2022 at 10:42 AM, a Hexafluorobutadiene leak on May 29 2022 at 2:19 PM, and leaks of two unnamed toxic gases on September 20 2022 at 7:44 AM and December 21 2022 at 1:40 AM.
Notably, almost all of the reported toxic gas leaks during the time frames Gjovik had complained n 2020 that her symptoms seemed to always be the worst around 8-9 AM, 10-11 PM, and sometimes around 2-3 AM. One of the chemical spills that did not occur during those times of concern was root caused to an Apple engineer “accidently” turning on lethal fluorine gas. Similarly, another incident, the TEOS leak, was root caused to an Apple engineer accidently installing the gas for a tool “backwards.” Further, less than two weeks following the April 30 2021 phosphine leak, Apple’s manifests included sixty pounds of “vacuum filters contaminated with glass dust,” implying there may have also been a phosphine explosion.
Further, later in 2021-2022, Apple reported to the government. that in the year 2020, Apple released at least 7.8 tons (15,608 pounds) of VOCs and 260 pounds of the combustible solvent N-Methyl-2-pyrrolidone (NMP) into the exterior air around ARIA. Per a review of Apple’s manifests, Apple did not replace the carbon/charcoal in its exhaust system for over five years, with the first replacement occurring December 14, 2020 – only after Gjovik had notified Apple EH&S and environmental legal about what occurred to her near ARIA.
In 2022, the US EPA severely restricted the legal use of NMP as “it presents an unreasonable risk of injury to human health” under TSCA. Apple also reported that in at least 2019-2021, that ARIA exhausted reportable amounts of mercury, arsenic, carbon monoxide, and formaldehyde into the ambient air around the factory. Further, Apple reported to the Bay Area Air Quality Management Board that ARIA exhausted an average of 16 pounds a day of isopropyl alcohol vapors.
In September 2020, Gjovik hired an industrial hygienist to test the indoor air at her apartment. She purchased an inspection, soil testing, and a two-hour sorbent tube-based TO-17 air panel. Only half the total contaminants were accounted for in the test and the California EPA informed her that testing with Summa canisters for 24 hours is superior and would have yielded better results. Still, Gjovik’s limited testing returned results showing a number of the chemicals in use by Apple at ARIA including Acetone, Acetonitrile, Acetaldehyde, Benzene, 1,2-Dichloroethane, Ethanol, Ethylbenzene, Hexane, Isopropanol, Isopropyl toluene, Methylene Chloride, Toluene, and Xylene.
In September 2020, Gjovik set up additional air monitors to observe the levels of VOCs in her apartment next to the ARIA factory (though she was not aware of the factory exhaust at that time). The results of the data validated what Gjovik had noticed with her symptoms and ad hoc testing – that the VOCs mostly spiked early in the morning and late at night as if they were being exhausted from an automated mechanical system (which it was). Gjovik notified several Apple executives of her findings and activities, including her managers Powers.
In September 2020, Gjovik’s blood and urine medical tests returned results with industrial chemicals, including arsenic, mercury, Toluene (Hippuric Acid), and Xylenes (2-3-4 Methyl hippuric Acid. Also noteworthy are the symptoms of Gjovik’s 3 AM attacks, (including both subjective reporting and physical real-time heart monitoring) match Phosphine and Arsine gas exposure. Both Phosphine and Arsine are very dangerous, exposure can be fatal, and there are no antidotes. Apple has a significant quantity of Arsine gas on site, and Gjovik’s medical tests from September 2020, on the morning after one of the 3 AM attacks, revealed significant arsenic in her blood with no other explanation than Arsine gas exposure within the prior eight hours.
Apple’s leaks, spills, and releases were not limited to the air. Apple’s wastewater discharge monitoring repeatedly showed the presence of heavy metals and organic solvents. In 2017, the government mandated testing revealed the presence of 29 μg/L of 1,1-Dichloropropane, 24 μg/L of Trichloroethylene (“TCE”), and 6.7 μg/L of Ethyl tertiary-butyl ether (ETBE). Among other issues, it’s unclear why Apple had TCE on site but not in any of its chemical inventories, and then, in addition, why exactly Apple was pouring that TCE down the drain.
ARIA reported an average daily water usage of around 44,000 gallons per day and the sewer pipes carrying ARIA’s discharges flowed downhill and directly around the apartment where Gjovik lived in 2020. In 2020, the government had already started investigating the plumbing at her apartment as a possible vector for some unknown solvent vapor pollution.
In September 2020, Gjovik noticed an Apple facility at 3250 Scott Boulevard across the street, which was also on the Superfund groundwater plume. Gjovik mentioned the facility to Apple on at least September 8, 9, 10, and 13, 2020 – inquiring if anyone was familiar with the area because Apple had an office there. Apple EH&S and Gjovik had at least two phone calls. The woman who responded who was also actually in charge of Real Estate/EH&S teams involved in Gjovik’s Superfund office at 825 Stewart Drive (“Stewart 1”) and the activities at ARIA.
In September 2021, the Apple EH&S manager, Elizabeth, suggested that Gjovik use a special paid leave to move out of the apartment called ‘extreme condition leave’ designated for disasters. Later, in September 2021, Apple Employee Relations conferred with Elizabeth about Gjovik’s environmental concerns only hours before Gjovik was abruptly terminated.
Apple created and maintained a condition in violation of Cal.Civ.C. § 3479. This nuisance was demonstrably injurious to health, which was indecent and offensive to the senses and obstructed the free use of property. By acting and failing to act, Apple created a condition or permitted a condition to exist that was harmful to health, offensive to the senses, an obstruction to the free use of property, and a fire, explosion, and poisoning hazard. Apple’s conduct in acting or failing to act was intentional, unreasonable, negligent, and reckless.
Apple is continuously casting pollution upon the property of the owner and tenants of adjacent properties, as it knew it would do when it constructed its exhaust and HVAC systems and hazardous waste handling systems. It knew then, as it knows now, that so long as it would continue its operation, the pollution would continue to fall, not by accident or mishap, but in conformity with the knowledge it had before the construction of the systems. Apple should be presumed to have intended its act's natural, known, and reasonable consequences.
Apple’s interference would and did substantially annoy or disturb persons of normal health and sensibilities in the same community. Apple’s operations at the factory and Superfund site are both continuing nuisances, and every continuation of the nuisance or trespass gives rise to separate damages claims. Apple has the agency and ability to stop the nuisance (it is not permanent), so until it does, the nuisance Apple created is continuous. Apple’s conduct was a substantial factor in causing Gjovik’s harm. Gjovik did not consent to a defendant’s conduct, and the seriousness of the harm outweighs the social utility of Apple’s conduct. Apple damaged Gjovik’s property and injured Gjovik’s person. Due to Apple’s actions, Gjovik’s property was destroyed, the leasehold degraded, she became very ill, and she suffered severe emotional distress.
In or about 2015, Apple constructed, or caused to be constructed, exhaust vents and open tanks at ARIA in Santa Clara, near the common border line of the defendant's and Gjovik’s property. The exhaust vents were installed and maintained negligently, recklessly, and unskillfully. Apple exhausted through the vents and emptied various materials or substances into the open tanks that caused a foul, obnoxious, and disagreeable odor and polluted the atmosphere / ambient air of Gjovik’s leasehold property.
Apple’s facility emits large quantities of vapors, dust, chemicals, and other contaminants into the air, which are carried by the natural winds and air currents onto Gjovik’s property and collect Gjovik’s chattel property and are generally injurious to Gjovik’s health, are offensive to the senses, and interfered with Gjovik’s comfortable enjoyment of life and property. Apple created the nuisance due to unnecessary, unreasonable, and injurious methods of operation of their business. The emissions were a business decision to be able to report reduced waste sent to landfills.
Strict Liability for Ultrahazardous Activities at 3250 Scott Blvd
Apple’s fabrication activities at ARIA provided a high degree of risk of significant harm to people and property, and the exercise of reasonable care could not eliminate the risk; the activity's benefits do not outweigh the risks, and these activities are inappropriate for the location, Apple’s activities at ARIA, directly adjacent to High-Density Residential and numerous sensitive receptors (including parks, schools, and playgrounds) is in violation of city and county zoning rules.
Apple’s facility was originally registered simply as an “R&D Facility” (it appears Apple went to much effort to ensure no one knew they were doing semiconductor fabrication at the location). The ARIA building is located on “Light Industrial” zoned land (18.48), however semiconductor fabrication is expressly not allowed on any land other than “Heavy Industrial” zoned land (18.50). The state Fire Code also includes numerous other regulations targeted at the semiconductor fabrication processes (see, e.g., Cal. Fire Code Ch. 17 – “Semiconductor Fabrication Faculties”).
Santa Clara City Code, Santa Clara County Code, and California Fire Code all explain that facilities which process raw materials (10.60.090) and require hazardous material and hazardous waste management, must be located in Heavy Industrial zoned land, must go through an application/review process, and may still be denied if their activities (and emissions) would create a nuisance for other industrial facilities in that area. Further, Santa Clara City Code requires that any industrial zoned properties be located at least 500 feet away from any Residential zoned properties.
Apple stored, used, treated, and released a large quantity of lethal gases at ARIA. Apple possessed and used substantial amounts of arsine, phosphine, silane, fluorine, chlorine, hydrogen chloride, and phosphorus trichloride. In addition, many of Apple's chemicals at the plant were characterized as “extremely hazardous substances,”[1] “highly toxic gases,”[2] and/or “acute and extremely hazardous wastes.”[3] Regardless of other considerations, California Fire Code requires that any storage or processing of highly toxic gases occur no less than twenty feet away from the property lot line and public sidewalks.
Further, California Fire Code strictly prohibits the storage, use, or treatments of toxic gases within 75 feet of air intakes in adjacent buildings. This rule applies in Heavy Industrial zoning, where these activities should have been conducted. Apple intentionally venting unabated toxic gases and lethal chemicals into the ambient air only 250 feet from an open-air children’s playground – is exactly the policy justification for Ultrahazardous Activities tort enforcement as a common law zoning mechanism.
Apple conducted semiconductor fabrication activities, with extremely dangerous substances, openly dumping its unabated chemical exhaust into the ambient air, only 150 feet from High-Density Residential with thousands of apartments, and 250 feet away from two public parks and a children’s playground. The storage, use, treatment, and release of large quantities of highly toxic, extremely poisonous, acutely lethal gases – directly adjacent to an unsuspecting, High Density Residential area – and directly adjacent to public parks and children’s playgrounds – is an activity which, even when conducted with the greatest of care and prudence, can still cause severe injuries, fatalities, and mass human suffering (e.g. Bhopal). Thus, these activities – in this location, scenario, and context – are Ultrahazardous Activities.
Apple’s use, storage, and release (intentional and unintentional” of highly toxic gases can produce a dense cloud of lethal gas that would be large enough to engulf the apartments. Such an emissions could easily cause mass fatalities and severe suffering. The condition Apple created and permitted to exist resulted from Ultrahazardous Activities and for which strict liability should also exist.
Apple violated the spirit of the Clean Air Act, if not the law, which “criminalizes knowing or negligent “releases into the ambient air [of] any hazardous air pollutant . . . or extremely hazardous substance” that give rise to imminent danger,” [42 U.S.C. § 7413(c)(4)– (5)]. Similarly, Apple’s activities likely violated RCRA when Apple “knowingly transports, treats, stores, disposes of, or exports any hazardous waste identified or listed under this subchapter . . . in violation of … of this section [and] knows at that time that he thereby places another person in imminent danger of death or serious bodily injury.” [42 U.S.C. § 6928(e)].
Apple also released chemicals categorized by Cal. Code Regs. Tit. 17, § 93000 as “Substances Identified as Toxic Air Contaminants,” of which there is no safe level of exposure without “significant adverse health effects. “Apple released into the air chemicals categorized under 42 U.S.C. Section 7412(b) as “Hazardous Air Pollutants” and Cal. Code Regs. Tit. 17, § 93001 as “Hazardous Air Pollutants Identified as Toxic Air Contaminants.”
Apple was engaged in Ultrahazardous Activities that caused Gjovik to be harmed. Apple’s activities were the proximate cause of that harm, and Apple is responsible for that harm. People who engage in ultrahazardous activities are responsible for the harm these activities cause others, regardless of how carefully they carry out these activities. Apple damaged Gjovik’s chattel property (discoloring, weakening, dissolving glues, causing reactions), degraded her extremely expensive leasehold conditions, and harmed Gjovik’s mind and body.