PROVIDENCE -- New England Gas Co. has asked the U.S. District
Court to dismiss a civil suit filed by Tiverton homeowners who are
living on top of fill that includes hazardous waste from a coal
gasification plant that operated about a mile away in Fall River early
last century.
Lawyers for the gas company have filed written arguments contending that
the plaintiffs -- about 100 people living on some 80 properties in the
Bay Street neighborhood of North Tiverton -- do not have a legal basis
for bringing suit.
In their complaint, the homeowners note that the Rhode Island Department
of Environmental Management investigated the contamination, identified
it as being from coal gasification and named New England Gas as the
responsible party.
The homeowners allege that the gas company acted in "reckless disregard
of the consequences as affecting life or property of the plaintiffs" in
disposing of waste including cyanide, arsenic and lead, in violation of
the Rhode Island Waste Management Act.
In written arguments opposing the motion for dismissal, the plaintiffs'
lawyers maintain that the violation of the hazardous waste disposal law
gives the homeowners sufficient standing to bring suit.
No date has yet been set for a hearing on the gas company's motion to
dismiss the complaint.
In a recent report, the gas company said that the lawsuit will force it
to "reassess" its cooperative role in investigating the contamination.
"Until now, NEGC [New England Gas Co.] has voluntarily cooperated with
the state and with many of the residents in investigating, and in some
cases addressing, contamination in the Study Area," according to the
report.
"In light of this legal action, NEGC will need to reassess its role ...
" said the Aug 15 report, which presented the results of a second round
of testing of nearly 100 properties in the affected neighborhood.
Jeffrey Crawford, principal environmental scientist at the DEM, said
earlier this week that the most recent testing showed "significant"
contamination in the soil on property covering some 50 acres in North
Tiverton.
He was interviewed after a public presentation that revealed that the
testing had showed 2,335 instances in which hazardous chemicals exceeded
the DEM's standards for safety in residential areas.
The gas company report indicates that about 38 percent of some 1,900
soil samples tested contained substances that exceeded DEM limits.
The contamination included:
247 detections of arsenic, with concentrations as high as 19 times the
permitted limit
273 detections of lead, with concentrations as high as 37 times the safe
level
350 detections of benzo(a)pyrene, a suspected carcinogen, with a maximum
concentration that was 530 times the limit
Even though numerous homeowners say they have seen blue-tinged soil that
indicates the presence of cyanide, only four samples showed cyanide
exceeding the DEM's allowable limits, according to the report.
Gail Corvello, one of the affected homeowners, said the test results
"don't speak to the fact that there is cyanide all over the
neighborhood."
"There was cyanide in every boring in my yard," she said, but the
laboratory analysis involved "composite" samples of soil that were mixed
together.
Cyanide is a "marker for gas plant waste," said Corvello, a plaintiff in
the civil suit and president of ENACT -- the Environmental Neighborhood
Awareness Committee of Tiverton -- which hosted the presentation of test
results earlier this week.
Christopher Medici, spokesman for New England Gas, said that in light of
the litigation, "we're not really commenting beyond the four corners of
the report" to the DEM, at least until the company receives written
comments from the agency.
The report says that 34 percent of the soil borings had evidence of fill
that was "non-native" to the site, but made no direct link between any
of the substances found and the burning of coal to create gas at the
former Fall River Gas Co., the predecessor of New England Gas.
The report suggests that elevated concentrations of lead might have come
from lead paint on homes built prior to 1977 and that high
concentrations of arsenic might have come from the use decades ago of
agricultural pesticides containing arsenic.
The construction of a railroad bed and the existence of a town dump, now
closed, were also cited as possible causes of so-called "non-native"
fill.
The report attributes stratified layers of slag and coal to dumping that
may have been done by the former Simpson Construction Co., but does not
explore where the construction company may have obtained that fill.
The DEM's Crawford said there are ample indications that records exist
documenting activities in the contaminated neighborhood last century,
but the gas company has yet to turn over any of them as the agency has
requested.
Nor has the gas company presented proposals that the DEM expected to see
in the Aug. 15 report for remediating the contamination.
Instead, the report proposes a "human health risk assessment," which
would rely on a complicated mathematical formula used to gauge
restrictions that might be placed on homeowners' property.
Crawford said such assessments can only be done with the consent of the
property owners. After this week's presentation, he's certain the Bay
Street homeowners will not give their consent.
He said the DEM's comments on the New England Gas report will be
completed in the next few weeks.
If the gas company does not move toward remediation of the affected
properties, he said, the DEM will take administrative action to force
compliance, or ask the Superior Court to order it.
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