Toxic site cleanup haunts S.A. firms

July 21, 2006 - 6:14 pm Comments Off on Toxic site cleanup haunts S.A. firms

Anton Caputo EXPRESS-NEWS STAFF WRITER

Publication Date : July 3, 2006

Comet Fuel Center owner Roe Traugott thumbs through a pile of nearly two-decade-old waste oil receipts, all remnants of a time when his father’s business sold used motor oil to a nearby recycling outfit called R&H Oil.
“Twenty-three dollars — I got rich on that one,” he says, his voice tinged with irony.

The deals earned Traugott’s father a little less than $50 over the years for 988 gallons of waste oil. That’s about a nickel a gallon. Now the deals could cost his son more than 460 times that amount.

Since then, R&H Oil has declared bankruptcy and abandoned its South Side facility, littered with leaking drums and awash in waste oil. Environmental regulators swarmed the site in 2001, cleaned up what they could and proposed R&H for the Superfund program, which is reserved for the nation’s worst hazardous waste sites. Now, they want people like Traugott to pay for its cleanup, which would include a plan to deal with the dangerous chemicals that have seeped into the shallow aquifer below the site.

Traugott’s father’s $50 business transaction translated into more than $23,000 in liability. Comet Fuel is far from alone. Some 679 businesses, nearly all of them local, are on the hook for more than $21 million in cleanup costs under the federal Superfund program. All were R&H customers between 1988 and 1992, the only stretch of the facility’s long life that it recycled waste oil.

Many, like Traugott, don’t even remember the dealings that could now cost them thousands. They have been linked to R&H by records left behind when its last owner, Tropicana Energy Co., filed for bankruptcy in 1992.

“They call me a waste generator,” Traugott said. “I didn’t generate a damn thing.”
According to experts on the Superfund law, though, Traugott, and everyone else who did business with R&H, did help generate the mess. EPA Assistant Regional Counsel I-Jung Chiang said there is very little room in the law to judge the intentions of those who sold the oil.

“Under the statute, all parties who contributed to the contamination at a particular site are held to be strictly, jointly, and severally liable for the cleanup,” she said. “This means that liability arises regardless of the degree of fault, intent, or compliance history.”

The 7-acre R&H Oil site sits on Somerset Road near the now-defunct Kelly AFB. It operated as an oil refinery and fuel blending facility under more than a dozen owners from 1934 to the early 1990s, according to EPA documents.

All but one of the operators have disappeared. The lone exception is a Michigan-based ink manufacturer that owned portions of the site in the ’70s and ’80s.
Now the site is little more than an overgrown field surrounded by a barbed wire fence. The only signs of the old business are a squat brick building and a dozen or so empty drums, all barely visible behind the dense shrubs that dominate the fence line.

Pollution problems, according to federal records, have been documented since at least 1980, when electric crews working near the facility reported a strong gasoline odor in the groundwater. A year later, the Texas Department of Water Resources found “a black oily liquid with a gasoline odor in the shallow aquifer.”
Four years later, state regulators documented a 200-gallon oil overflow and, in 1990, an 8,000-gallon gasoline spill. By the time the EPA ordered a site assessment 1998 and an initial cleanup in 2001, pollutants had already leached into the ground.

Crews removed the overflowing drums, massive storage tanks and obviously contaminated soil, but the groundwater now carries a noxious combination of chemicals, including arsenic, benzene and trichloroethene. The pollutants are trapped in the aquifer that lies beneath the site and the nearby neighborhood.
There has been no movement on cleaning up the mess in the past five years. Federal regulators say there won’t be until they finish negotiating with those being held responsible. At that point, crews will do a full-blown assessment to determine the extent of the pollution, potential health risks and a cleanup plan.

Federal and state health experts studied the site in 2003 and determined that the pollution is not a risk unless it somehow makes its way to the Edwards Aquifer, which supplies San Antonio’s drinking water. EPA Remedial Project Manager Chris G. Villarreal said there is little chance of that happening, and that monitoring wells show the pollution is staying localized.

Mark Weegar, project manager with the Texas Commission on Environmental Quality, agrees. The best evidence, he said, is research conducted by the Texas Bureau of Economic Geology that shows the two aquifers are well-separated.
“There is somewhere in the neighborhood of 1,000 to 1,200 feet of impermeable area between them,” Weegar said. “The chances are very slight.”

The 679 businesses and individuals on the hook for the cleanup include local service stations, car dealerships and a plethora of small and big businesses. Also on the list are local school districts, the city of San Antonio and Bexar County. Most, like Traugott, are being offered a settlement based on an estimated cleanup cost.

The largest 23 users, however, are being held responsible for the actual cleanup cost, which they can also choose to contract themselves. These are the customers responsible for a half of a percent or more of the contamination.

That list includes Wal-Mart, Firestone and BFI Waste Systems. The biggest, by far, is the Defense Reutilization Marketing Service, which disposed of property for the military. The department is being held responsible for nearly 24 percent of the contamination, almost four times the amount of second-place S&J Petroleum.
Spokesman Ken MacNevin said the department is in legal negotiations with the EPA, but that it takes its responsibility seriously.

“Stewardship extends past just putting it on the back of a truck and closing the door,” MacNevin said.

The remaining 656 businesses and individuals, who are legally termed “de minimis” parties because of their minute role in the contamination, are being offered settlement amounts ranging from just under $100,000 to $358 and change. They’ve been given a deadline of July 17 or July 23, depending on when the offer was received, to accept. But Chiang said the EPA will probably extend the deadline.

“These settlement offers are voluntary and are extended as a way to provide de minimis parties with a swift and efficient means to end their involvement in the Superfund process early,” she said. “The decision not to accept the de minimis settlement offer does not lead to criminal prosecution. This is a civil matter. However, it does leave the nonsettling party open to contribution lawsuits by other parties who have resolved their liabilities or incurred cleanup costs.”

Attorney Erich Birch, who is advising the Texas Independent Automotive Association in the case, said those who accept the offer will have the advantage of “being able to sleep at night.” Ultimately, the risk of being held liable for more in the future will probably be too great for many not to accept, he said.
“People are always saying it’s unfair, and they’re right.” Birch said. “It (the Superfund law) is a cost-recovery statute. It’s really not designed to find the actual guilty party.”

Mike Koebke, president of the association, agrees with Birch’s evaluation. His business, Gus Mann Automotive, is being assessed nearly $4,400.
“The concern for many is if we send a check, then directly or indirectly, we are admitting guilt,” he said.

Adding insult to injury, Birch said, is that those who used R&H were “doing the right thing” by using a recycler that was registered with the state.

The issue of the state’s role in the fiasco hasn’t been lost on state Sen. Leticia Van de Putte, who became involved in the situation when an “intimidated” and “scared” constituent came into her office carrying an EPA letter.

She has since hosted two meetings on the issue and is working with the local congressional representatives Charlie Gonzalez, Lamar Smith and Henry Cuellar. The three congressmen sent a letter to EPA last week asking for more explanation on the case.

TCEQ officials said that state laws have been tightened since R&H operated and now require insurance to help pay for such problems. But Weegar said that while recycling operations are required to register with the state, they don’t carry “a TCEQ good housekeeping seal of approval.”

“It’s kind of buyer beware in reverse,” he said.

The whole thing has a bad smell to Van de Putte.

“All of those people contracted with and did business with people who were regulated by the state to do this kind of business in the late ’80s and early ’90s,” she said. “Now, 15 years later, they’re hit with $5,000 or even $30,000 or $40,000. What sort of faith does that leave in the system?”

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