Commentary: Forgiving Ancient Environmental Injuries

by John McClaughry John McClaughry

From 1906 to 1951 the Springfield municipal gas plant converted coal to gas and piped it to homes throughout the village. In that latter year liquid propane became a much better option, so grinding and heating coal was discontinued.  Left behind was a bunch of contaminated structures, pipes and buried barrels of coal tar mixed with various environmentally nasty byproducts.

The old gas plant site was, however, right on Clinton Avenue, the main road into the village. The town government was eager to get the old plant demolished and the site returned to the tax rolls for some better (and cleaner) use.  In 1997 Vermont-owned Bradford Oil Co. bought the eyesore of a site to build a modern gasoline plaza and convenience store. The Springfield Regional Development Corporation (SRDC) rejoiced.

After purchasing the site, Bradford Oil learned that it was more contaminated than it anticipated. Under state supervision, Bradford Oil proceeded in 1999 to demolish the remaining gas plant structures and haul away some 25 truckloads of rubble and soil. It also installed four monitoring wells to check groundwater. There was some evidence of contamination, but in June 1999 the state Agency of Natural Resources (ANR) agreed that “active remediation was not necessary”. That is, after 48 years the contamination had apparently settled in place and didn’t threaten to migrate into the Black River or an aquifer. The company stopped submitting monitoring reports in 2001.

Four years went by.  During that period the SRDC became deeply involved in trying to revive the sprawling and long-closed Jones and Lamson plant across Clinton Avenue, downhill from the gas plant site.

Concerned about the impact of the old gas plant on the J&L site, the ANR ordered Bradford Oil to resume and expand monitoring. The company, which had spent well into six figures with its initial site cleanup and monitoring, declined. In effect, Bradford Oil said “the state agrees that our site is stable, and whatever may have happened before 1951, we’re not responsible for whatever problems the J&L site may or may not have now.”

In late 2005 ANR advised Bradford Oil that it was a “Potentially Responsible Party” with respect to the J&L site.  It proceeded to file a civil enforcement action against the owner of what by then was a clean, modern gasoline plaza.

From Bradford Oil’s point of view, it bought a commercial site with strong town support, cleaned it up under state supervision, and contributed absolutely nothing to whatever contamination might have appeared years before down at the J&L site.

The parties actually responsible for the coal tar contamination are long vanished. But from the state’s point of view – and this is the crux of the legal controversy – state law requires the present owner to pay for whatever remedial steps the state thinks might be necessary for the J&L site.

Bradford Oil’s lawyers argue that the 1985 statute governing liability for environmental damage makes a party liable only for the cleanup costs that correspond to its contribution to the problem. Since Bradford Oil contributed nothing to the problem – and in fact spent lots of money cleaning up somebody else’s problem – they say its liability should be zero.

`           Any state administration would want to see the vacant J&L factory become the home of a thriving new enterprise. If the state  insists that for that to happen,  heroically expensive  steps must be taken to remedy a problem that has been stable for decades, and the only deep-pocket party who can be made to pay is the present owner, Bradford Oil, who admittedly didn’t cause any of the problem, it could be very hard for anyone to recycle old properties into usefulness.

For the ANR lawyers, putting whatever legal screws it can find to Bradford Oil is a better solution than just agreeing with ANR’s own 1999 assessment and calling off the whole decade-long legal struggle.  (A large part of the J&L site is now owned by SRDC, which ANR can’t realistically sue to finance a cleanup.)

Yes, the perpetrators of environmental damages should be made to remediate and pay. But when the damages were committed sixty or a hundred years earlier when environmental laws were more primitive or nonexistent, and there’s no perpetrator left to enforce against, it’s time to let ancient injuries go unpunished, and give the Bradford Oils of the world the chance to recycle dilapidated properties, create new wealth, and increase tax revenues for the public benefit.

- John McClaughry is vice president of the Ethan Allen Institute (www.ethanallen.org).

 

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