Source: http://www.mcall.com, August 9, 2011
By: Devon Lash
Contractor says city knew land was contaminated with arsenic but did not disclose it.
A Saylorsburg contractor hired to build a route to help smooth traffic in east Allentown has sued the city for more than $2 million, saying Allentown officials knew the land was contaminated with arsenic but did not tell the company before it signed a contract.
In the lawsuit filed Thursday in Lehigh County Court, A. Scott Enterprises claims it has lost more than $2.89 million since it began the project nearly two years ago. The company alleges the city has not agreed to the cover the additional costs necessary to build upon the arsenic-laced soil, the suit says.
Throughout the delay, the city has done nothing to address the risk of residential neighborhood contamination through wind-scattered arsenic dust or storm-water runoff, according to the lawsuit.
City spokesman Mike Moore said Tuesday the city had not been served with the suit and declined comment.
In a 2010 letter to Scott Enterprises, city public works Director Rich Young said the state Department of Environmental Protection did not believe the levels of arsenic at the site posed a high risk to workers or residents, the lawsuit says.
Young wrote that the DEP said no special handling of the arsenic-laced soil would be required for the roadwork. The DEP did recommend Scott Enterprises control dust to prevent arsenic-laced soil from becoming airborne, according to the July 23, 2010 letter.
Until the city and Scott Enterprises resolve the lawsuit and the soil remediation, the New England Avenue project — already almost a year overdue — will remain stalled, Young said Tuesday.
Halting the New England Avenue project won’t affect the long-awaited $13 million American Parkway bridge, connecting east and west Allentown across the Lehigh River.
Neither project is dependent on the other, Young said, and the intent is still to open the bridge to traffic by August 2013.
Scott Enterprises was awarded a $2.9 million contract in October 2009 to build New England Avenue, a new two-lane road connecting Hanover Avenue and N. Dauphin Street on the former Lehigh & New England Railroad right-of-way, claims the lawsuit, which seeks damages “in excess” of $2 million.
A month later, while Scott Enterprises was cleaning the site, an unnamed city contractor told the company that soil was contaminated with hazardous materials, despite the fact none of the project information showed there was any hazardous material on the site, the lawsuit says.
The company was given a Feb. 26, 2008 report that said a portion of the roughly 50,000-square-foot site had levels of arsenic above the residential limits set by the DEP, according to the lawsuit.
The site, bounded by Hanover Avenue to the south, N. Dauphin Street to the west and commercial properties to the north and south, was sampled by React Environmental Professional Services Inc. and its report was addressed to EHS Environmental Inc., according to the lawsuit.
Soil samples contained concentrations of arsenic between 46 and 60 parts per million, according to the 2008 site investigation. The average soil in Pennsylvania probably contains somewhere between 5 and 15 parts per million of arsenic, though residents with soil above this threshold would not necessarily have health problems, said Karl Markiewicz, a senior toxicologist with the Agency for Toxic Substances and Disease Registry.
For exposure to make someone sick, they would have to ingest or inhale large amounts of arsenic-laced soil, according to the agency’s website. In such high concentrations, ingesting the soil could cause vomiting and diarrhea. Long-term exposure could cause skin discoloration or cancer, though health officials have not linked those diseases with soil exposure in the United States.
After Scott Enterprises confronted the city with the report in November 2009, city officials suspended site work indefinitely, the lawsuit says.
Scott Enterprises commissioned its own hazardous materials report, which found the levels of arsenic would require special handling and protective measures, especially during excavation and piping, the lawsuit says.
The presence of arsenic would change the scope and duration of the project — and thus, its pricetag, Scott Enterprises told city officials, according to the lawsuit.
Besides creating a site-specific health and safety plan for workers, no extra work has been added to the contract, Young wrote in the 2010 letter.
In the lawsuit, Scott Enterprises said the city violated its contract by, among other things, failing to disclose the presence of arsenic and suspending work for nearly two years while refusing to pay costs incurred during that time.
The lawyer representing the company did not return calls for comment.