The contamination in the North Tiverton area of Tiverton prompted Gail Corvello to cover her backyard with artificial grass, to protect the children who attend her home daycare.

The Providence Journal / Mary Murphy

TIVERTON — Two law professors at Roger Williams University say the state should beef up its own environmental law staff or call on the federal government for help in hastening the cleanup of toxic soil in North Tiverton, where nearly 100 families have lived in limbo for five years.

DEM director Michael Sullivan says that for budgetary reasons — the state’s and the federal government’s — neither idea is practical.

Fiscal woes notwithstanding, the DEM went into the red in the fiscal year that ended in June to pay a Washington law firm nearly $1.1 million to buttress its own five lawyers as it tries to force the Texas-based utility Southern Union to clean up the soil.

Five years after the toxic wastes were discovered and two years after the DEM first called on Southern Union for remediation plans, there is no end in sight to a highly contentious legal battle.

Moreover, the General Assembly has gone public with its anger over the cost of the Washington firm of Sutherland Asbill & Brennan, which has been paid $1,076,020 during the last year, according to a spokesman for Governor Carcieri. Additional costs for the outside legal help are expected to run another $2.7 million before the case is over.

“The amount of money is fairly troubling,” said Jared A. Goldstein, an associate professor who teaches environmental law and constitutional law at Roger Williams University.

He said he also found it “distressing” to see a public fight over the process of paying the legal bills.

“I’m speculating that it gives an incentive [to Southern Union] to drive up the cost,” he said.

Such public notice only lets Southern Union know that the state will be reluctant to pay for the litigation and that when the money dries up, the DEM will be more likely to settle in terms more favorable to the utility, Goldstein said.

Peter S. Margulies, who teaches legal ethics at the Roger Williams law school, agrees.

“Without focusing on one firm,” Margulies said, “a law firm always views litigation of this type as a war of attrition.”

A legislative hearing in June disclosed that Sutherland Asbill had billed $777,000 for seven months through April.

“It’s adding an element of irrationality and aggressiveness to the litigation that wouldn’t be there in a normal case,” said Goldstein, who has reviewed the record on file at the DEM’s administrative adjudication division.

Meanwhile, he said, the homeowners are living in a horrible situation, “with some cloud hanging over their lives.”

“They can’t sell their homes, and they don’t know when they can get this resolved.”

For them, the nightmare began in August 2002; sewer construction crews discovered soil tinged a bright cobalt blue in the earth under Bay Street in the North Tiverton area of town. The blue soil was laced with cyanide.

Besides cyanide, the contamination includes elevated levels of arsenic, lead and other hazardous chemicals, most prominently benzo[a]pyrene, which health officials term a “probable” carcinogen.

THE WASTES have been detected in soil spread across 50 residential acres in the Bay Street neighborhood, affecting about 250 people in nearly 100 families.

In March 2003, the DEM assigned responsibility to Southern Union, saying its predecessor, the former Fall River Gas Co., had used the area as a dump for wastes left from the burning of coal to manufacture gas. Fall River Gas was acquired by New England Gas, which in turn became a subsidiary of Southern Union in 2000.

Southern Union initially cooperated with the DEM in conducting two site investigations of the contaminated area.

But since residents filed a civil suit seeking unspecified damages in 2005, Southern Union has insisted it is not responsible and claims the DEM’s own regulations do not require Southern Union to submit remediation plans.

In September 2006, the DEM levied $1,000-a-day fines against Southern Union, retroactive to the previous January, for failing to submit three plans for cleaning up the contamination.

But no fines have been paid, because Southern Union appealed the DEM’s notice of violation. An administrative hearing on the appeal in all probability will not occur before next June at the earliest.

While increasingly acrimonious preliminaries have tied up lawyers on both sides, the DEM and Carcieri pushed for legislation earlier this year that would raise the fines to $50,000 a day to put pressure on Southern Union and recoup the costs of retaining Sutherland Asbill.

The General Assembly, apparently angered by the steep bills from the Washington law firm, killed the legislation.

“The difficulty here is that the legislature has a legitimate interest in making sure that the costs are reasonable and that no private law firm gets a blank check from the taxpayers,” Margulies said.

“I have no reason to think the law firm is overbilling, but there’s a certain built-in conflict of interest when any lawyer charges by the hour,” he said.

“The State of Rhode Island isn’t like a corporation, where they can employ corporate counsel to monitor how much a law firm spends,” Margulies said.

“The state government doesn’t have that capability,” he said, arguing for permanent expansion of the state’s environmental law staff.

“We’re a small state by territory, but we have a fairly dense concentration of environmental problems that require sustained attention,” Margulies said.

As examples, Margulies cited lead paint contamination — he participated in the attorney general’s successful litigation against manufacturers — as well as polluted “brownfields” that are the legacy of Rhode Island’s manufacturing history.

In the lead paint case, the attorney general’s office hired outside counsel on a contingency basis — 16 percent of the eventual award, according to Michael Healey, a spokesman for Attorney General Patrick C. Lynch.

Goldstein said that for the amount of money Sutherland Asbill is charging the state on a yearly basis, the DEM could hire eight or nine staff lawyers at $100,000 a year and still have money for support staff.

Alternatively, he said, the state could turn the case over to the federal Environmental Protection Agency, clearing the way for prosecution under the federal Superfund law, which places a priority on remediation over litigation.

Goldstein is a former Justice Department prosecutor who handled appellate cases involving environmental pollution from 1997 to 2001.

He said the federal government typically pays for an environmental clean-up and then pursues polluters in court.

SULLIVAN, the DEM director, says, “It’s easy for them [Goldstein and Margulies] to make a generalized statement.

“They are accurate in terms of the tendency of EPA to clean up first and to seek reimbursement later,” he said, but the Tiverton case “isn’t on their priority list.”

He said the EPA has told the DEM that it would be a “decade or more before they got to it.”

As for Southern Union’s interest in fighting the case no matter how long it takes, Sullivan said, “Yes, it is a scorched-earth litigation where the legal counsel available to our opponents is sparing no challenges, no effort.”

“We are handcuffed for a lack of resources,” he said. “We have neither an expanded budget for legal counsel or a blank check for outside legal support.

“We haven’t asked for any blank checks,” he said. “We will continue to ask for reasonable support.”

According to Jeff Neal, Carcieri’s spokesman, the state paid Sutherland Asbill $28,065 in December 2006; $7,174 in January; and $1,040,781 for services through the end of June.

The fees represented much of a $1.5-million budget deficit that the DEM incurred in the last fiscal year, Neal said, but that figure was balanced by surpluses from other departments of state government.

In June, the DEM’s chief legal counsel, Patty Allison Fairweather, faced questioning from the Senate Finance Committee about her failure to follow purchasing rules before hiring Sutherland Asbill. But she said all major Rhode Island firms had conflicts, and she reviewed more than a dozen Boston firms before going further afield.

Yesterday, Neal said the payments to Sutherland Asbill were approved by the state budget director, Rosemary L. Gallogly, and the state controller, Lawrence C. Franklin.

The state “had no option” but to pay the legal bills, because the services had already been incurred, Neal said.

Sullivan said that Goldstein and Margulies are “absolutely right” in that “we’re trying to litigate something where the other side knows what cards we’re holding.”

“That’s fundamentally unfair to the citizens of the entire state,” particularly those directly affected in this case, Sullivan said.

THE LEGAL jockeying has become most intense over the deposition of 88-year-old Jose Souza, a crucial witness for the DEM who has testified that he worked on the crew that cleaned out coal gasification wastes from “beehives” at the Fall River Gas Co. and helped dump the material in Tiverton during the 1940s.

A lawyer for Southern Union, Eric Herschmann of New York City, cross-examined Souza in a manner that was “both unprofessional and discourteous” to all in attendance, according to DEM hearing officer Kathleen M. Lanphear.

Souza “attempted to sit stoically in the crossfire until the tone of the exchange” between lawyers for the DEM and Southern Union “caused him to remark, ‘Hope you guys didn’t bring any guns.’ ”

In May, Lanphear ordered Southern Union to change lawyers in the cross-examination and limit its duration to no more than an additional 90 minutes.

On Aug. 31, Superior Court Judge Alice Gibney upheld Lanphear, saying that Herschmann made “gratuitous comments serving no purpose other than to disrupt and intimidate.”

gmacris@projo.com