Source: St. Louis Post-Dispatch, July 23, 2012
Carondelet Coke was one of the most polluted places in Missouri.
Allied Chemical and Ironton Coke was one of the most contaminated sites in Ohio.
Each scored high enough on a hazard scale to be considered for inclusion on the U.S. government’s priority list for cleaning toxic sites.
And each had a valuable asset that many such sites don’t — viable and potentially liable former owners.
But from there, the stories diverge. In 2010, the U.S. Environmental Protection Agency reached a settlement with Honeywell International to clean 25 acres for $10 million, the final piece of a $75 million remediation in Ironton, Ohio.
“We were in this case fortunate that we had the deep pockets of a responsible party,” Bill Dickens, Ironton’s economic development director, told the Post-Dispatch.
In Missouri, it’s state taxpayers with the deep pockets.
As the Post-Dispatch reported Sunday, the city of St. Louis is using $12.3 million in state brownfield tax credits to cover nearly the entire cost of cleaning the Carondelet Coke site.
The newspaper found that while state and federal regulators initially talked tough, they never held the companies that operated at the site accountable for the pollution they left behind, including arsenic, asbestos, coal tar, cyanide and carcinogens such as benzene and naphthalene.
Those three companies are Laclede Gas Co., SGL Group, and Carondelet Coke.
Laclede and SGL are each paying $471,250 to help clean the site. The owner of Carondelet Coke is paying nothing.
It wasn’t initially supposed to play out this way.
In 1995, the Missouri Department of Natural Resources convened a group of stakeholders including Carondelet Coke owner J. Donald Crane, Laclede, the St. Louis Development Corp., and state and federal regulators. Although Carondelet Coke was dissolved in 1998, Crane still owns coke plants in New York and Pennsylvania.
Ed Sadler, director of DNR’s hazardous waste program, urged the former owners to enter the state’s voluntary cleanup program.
“If I do not hear that a decision has been reached by Oct. 1, 1995, my staff will proceed with the classic Superfund route,” he wrote.
Interviewed recently, Sadler said, “The idea was they were going to be in charge, they were going to organize it, be responsible for it.”
Sadler, now a city manager in Iowa, said officials did not envision taxpayers funding the entire cleanup.
“Obviously, times change,” he said.
“I’m not going to second-guess the state — why it created these programs.”
VOLUNTARY CLEANUP
Eight months after the meeting, in April 1996, the state used the Hazard Ranking System to evaluate Carondelet Coke. The site scored greater than 28.5, high enough for inclusion on Superfund’s national priorities list.
By September, DNR signed one former owner — Laclede Gas — to clean the site through the voluntary program.
“Further action under Superfund will be deferred to allow Laclede Gas Company the opportunity to address the site,” Gary Behrns, chief of DNR’s Superfund section, wrote.
Behrns, interviewed recently, wouldn’t comment on the publicly funded cleanup except to say: “Obviously as a taxpayer I would rather see the company that is a potentially responsible party pay for it.”
Peter Meyer, retired director of the Center for Environmental Policy and Management at the University of Louisville and a longtime EPA consultant on brownfields, said officials missed a chance “to clean up the site without the tax credits.”
“If the city had taken the first steps toward the declaration that the site should be qualified for Superfund — the national priorities list — both of the existing responsible parties would have gone into panic mode since such a listing could cost them untold millions above cleanup costs,” he said.
“That threat of listing has worked all over the U.S., but for some reason St. Louis was scared to try it, or had a too-easy option with state subsidies.”
EPA spokesman Benjamin Washburn said a voluntary cleanup was favored because officials believed it would happen quickly and the state could avoid the stigma of Superfund.
The state knew that experience all too well. Just 20 miles west of Carondelet Coke, the dioxin contamination of the former St. Louis County community of Times Beach and subsequent $200 million Superfund cleanup had been national news for years.
Carondelet Coke, while significantly polluted, did not present a similar threat to public health.
Jay Pendergrass, senior attorney at Environmental Law Institute, an environmental think tank in Washington who has studied state brownfield cleanup programs for 24 years, criticized Missouri’s decision to put a major industrial site in a voluntary cleanup program.
“That’s generally effective at dealing with less contaminated sites in a situation where there is going to be redevelopment and there are parties that are willing to work on development and cleanup,” he said. “It’s not usually effective in sites that get an HRS (Hazard Ranking System) of greater than 28.5.”
ESTABLISHING LIABILITY
Superfund is no panacea. The program, created in 1980, has its share of critics for epic delays and potentially expensive litigation.
Petroleum and chemical companies initially paid into a trust fund for cleanups at “orphan” sites — those without a viable responsible party that could be forced to pay.
Congress ended that tax in 1995, and now EPA most often recoups costs through litigation.
Under Superfund, the liability is set up to be “joint and several,” meaning that even if a site has many previous users, any one of them could required to clean up the entire property.
In north St. Louis, the site of Carter Carburetor is contaminated with PCBs, TCE and asbestos. The EPA has been negotiating with the owners for several years to reach a settlement.
Residents have complained about delays, but in a meeting March 19, EPA officials insisted the site would be remediated — and that potentially responsible parties would pay.
For years, some U.S. mayors did not want Superfund sites in their communities because of how they would affect property values.
That was once true in Ironton, said Dickens, but he said that stigma is “long gone.”
WHO CAUSED PROBLEMS?
As part of the voluntary program from 1996 to 2005, records show, Laclede Gas installed monitoring wells and did testing to make sure the pollution was staying put.
“Laclede Gas took prudent and responsible steps to work within existing regulations and guidelines in order to most effectively and efficiently fulfill its responsibilities to its customers and shareholders, and the community,” Ellen Theroff, vice president of governance and standards, said in an email.
The company didn’t initiate a cleanup because, Theroff wrote, it wasn’t clear how much of the pollution Laclede was responsible for.
And the city didn’t push Laclede to clean the site.
“Around 1995, the previous administration (Mayor Freeman Bosley Jr.) determined that suing the three existing companies would have taken a very long time, and would have resulted in an unsatisfactory result,” Jeff Rainford, chief of staff to Mayor Francis Slay, said in an email. “They came to that conclusion because proving the liability of each of the three most former owners would have been difficult.”
Rainford said the city believed Carondelet Coke was most liable for the pollution because it was the most recent owner and abandoned the property.
“It was also the one with the least amount of assets,” he said.
Pendergrass said it sounded like the city didn’t understand Superfund liability.
“Superfund does not create a hierarchy of liability,” he said. “… All liable parties are equally liable unless they can prove otherwise.”
DNR spokeswoman Renee Bungart pointed to a 2005 memo in which the St. Louis Development Corp. asked to take over Laclede’s responsibility to clean the site. The city could then begin working to redevelop the property.
In 2008, Otis Williams, deputy director of the city development corporation, told Missouri economic development officials that Laclede’s $600,000 in environmental work was a “beginning point” that shouldn’t count as a contribution to the actual cleanup.
But asked recently about Laclede’s contribution, Williams was more sanguine.
Laclede “agreed to enroll the site in the VOLUNTARY Cleanup Program, at our urging, but they never agreed that cleanup was solely their responsibility,” he wrote in an email.
“They invested significant sums into site characterization, which was useful in planning for future reuse of the site.”
Robert Morby was an EPA project manager who was involved in discussions to get the three previous property owners to clean the site.
“I’d be asking on what basis did (the state) not pursue the parties considered to be viable under the voluntary program,” said Morby, now an environmental consultant in Kansas City.
“You’re absolutely right in seeking to understand why public monies were used when there were what were initially considered viable parties to clean it up.”
The goal of letting a responsible party clean up a site voluntarily, instead of facing enforcement through Superfund, is to save time and money, said Eric Schaeffer, executive director of Environmental Integrity Project, a Washington-based group that works with citizens and government to enforce environmental laws.
“I never understood it as, ‘We’ll take it off the Superfund list and the taxpayers will cover cleanup costs,'” he said.
But Williams said there were no regrets. “Superfund is a process that should only be used when all other resources are exhausted,” he said.
And of course, there were still resources available: Missouri tax dollars.