Originally created 05/05/02

Shouldering the burden

BILLERICA, Mass. - Sal Dampolo's been fixing cars here for 33 years. He never had much use for government regulation, but he played by the rules, making sure he found a licensed hauler to take his used motor oil for proper disposal.

"Guy picks it up, where he dumps it, I never knew," Mr. Dampolo shrugged.

He knows now. It went 25 miles away to a pond just over the state line in Plaistow, N.H., where it was illegally dumped by Beede Waste Oil Corp. When the Environmental Protection Agency started cleaning up the place in 1996, it found six feet of petrochemical muck floating on the water table.

Finishing the cleanup will cost up to $60 million. Nobody charges wrongdoing by Mr. Dampolo, or any of about 5,000 other service station owners, town governments, schools and even parish churches whose waste ended up in the pond.

No matter. Many will still be paying for the cleanup.

Beede filed for bankruptcy and hasn't contributed to the cleanup, the EPA says. Several of the companies that transported oil to the site also went under.

Federal law is clear: With Beede bankrupt, the EPA can make pollution "generators" pay to clean the site, regardless of blame, in proportion to the amount of waste they unwittingly contributed.

Mr. Dampolo is relatively lucky; the EPA currently estimates his share at $4,672. He might pay a little less by settling with a private company negotiating to take over the cleanup project. Other small service stations have been told they could owe tens or even hundreds of thousands of dollars - money many say they don't have.

"We didn't manufacture it, we didn't put it in the ground, we very carefully hired a licensed contractor to take it away," said Barbara Doucot of Champy's Auto Service in Lawrence, Mass., who by current estimates would owe as much as $110,000. "I don't want to lose my house. I don't want to lose my business."

THE "POLLUTER PAYS" PRINCIPLE was one of the cornerstones of 1980 Superfund law. The idea was that if pollution generators knew they could be liable for where their waste ended up, they'd keep a closer eye on where it was taken. Many believe it's helped protect the environment and saved taxpayers billions.

"It's an unpleasant situation, and we have to remember the aim of the law is to change people's incentives," said Lewis A. Kornhauser, an environmental law expert at New York University. "Changing this rule would reduce those incentives."

At most of the 1,223 active Superfund sites nationwide, cost-recovery efforts focus on the party that dumped illegally and a relatively small number of mid-sized or large companies that sent waste to the site.

Waste oil disposal companies, however, take oil from transporters who serve thousands of small businesses. Those businesses complain they can't keep track of where their waste goes. They say that's the government's job.

"It's a terrible, terrible law," said Roy Littlefield, executive director of the Service Station Dealers of America, which represents 20,000 service stations. "I don't know who should pay for it, but it just seems tough that somebody who did everything right has to lose everything from it."

Mr. Littlefield says he recently had a list of 27 such cases nationwide but believes there are more. Several people familiar with these types of cases say the 241-page list of nearly 5,000 so-called PRPs, or "potentially responsible parties," identified by the EPA at Plaistow Pond is uniquely long.

Beede's operator, Mark Henry, spent three years in prison for fraud and conspiracy. Prosecutors said he had claimed to recycle petroleum-contaminated soil into cold-mix asphalt, but dumped most of the material at Plaistow instead.

A BILL TO EXEMPT service station owners from liability in waste-oil cases has been proposed in Congress. But other industries oppose it because it would simply stick them with a bigger bill.

Grant Cope, a staff attorney for the Massachusetts Public Interest Research Group, said making profits from changing oil carries responsibilities. "Businesses that make money off of managing, handling or transporting toxic waste shouldn't ask innocent taxpayers to foot the bill for cleaning up that waste," Mr. Cope said.

But some business owners, like service station owner Jim Massahos of Salem, N.H., say they're being punished for collecting used oil as a service and keeping good records. The EPA has spent millions of dollars pursuing parties to spread the bill as widely as possible, but the sources of 19 percent of the 14.5 million gallons shipped to Plaistow remain "orphans," meaning they're out of business or can't be found. That means everyone else must divvy up that share.

"If the EPA had done their job and monitored the sites like they do today, this problem would never have existed," said Mr. Massahos, who could owe more than $20,000.

Jim DiLorenzo, the EPA's project director, said New Hampshire authorities were responsible for overseeing the Plaistow site, but he doubts tougher regulation would have prevented this problem since the disposal company owners committed fraud. New Hampshire has sued Mr. Henry, who did not respond to messages seeking comment.

THE EPA DOESN'T KNOW precisely what the cleanup will cost, so final bills have not been calculated. The agency has offered an early settlement plan charging $5.84 per gallon to parties responsible for up to 1,000 gallons of oil. Parties responsible for fewer than 275 gallons will not be pursued.

About half the parties contributed 40,000 gallons or more. Exxon Mobil tops the list with 1.7 million gallons, followed by Brodie Mountain Ski Resort and the U.S. Navy.

Today, pumps whir on the far side of a fence that surrounds the mostly drained 39-acre site in Plaistow. Since 1996, the EPA has spent $16 million at the site and continues to drain 200 to 300 gallons per day.

Mr. DiLorenzo conceded that the pond poses no immediate, widespread threat. There's been little seepage into nearby waterways, and wells at neighborhood houses have been protected. But the soil remains heavily contaminated with PCBs, lead, petroleum and other pollutants.

"If we were to walk away, it would become a testimony to industrial pollution," Mr. DiLorenzo said.

Still, he said he is "personally conflicted" that small businesses will be stuck with much of the burden.

"I've talked to these business owners and I know how hard it is on them," he said. "I don't disagree with them in principle, but I have to explain to them why they should pay."