The ugly 22-acre plot in Dayton is overrun with high weeds, dotted with partially demolished cinder blocks, and surrounded by a tall chain-link fence.
636 North Irwin Street near the Mad River is not a pretty site, yet it’s one of the most hotly contested properties in the state of Ohio. It has a 20-year history of soil and groundwater contamination which carry potential threats to the city’s drinking water.
The state of Ohio has slapped $15 million in fines against the property’s owners and raised the ire of environmental groups who say the state hasn’t done enough to either collect on the fines or get rid of the problem.
Teresa Mills, Ohio organizer for the Center for Health, Environment and Justice, an environmental advocacy group in Columbus, said the state should be acting more aggressively to clean up North Irwin Street.
“There’s no reason these sites should takes this long to clean up,” she said. “The contamination is still there. It’s still a threat.”
The Ohio Environmental Protection Agency says it wants to work with property owners to have them clean up their land voluntarily; Mills says the Irwin Street site is a case study in how that approach doesn’t always work and alternative solutions should be found.
“The state wants to work with these companies, but I think they take it too far,” said Mills.
Locating a hazardous waste treatment plant atop an aquifer
Brownfields are abandoned properties whose expansion or redevelopment is prevented or complicated by the presence of potential hazardous substances or other contaminants.
The Irwin Street property aptly fits that description. Not only is the land unusable in its present state, it also sits atop an aquifer, or underground lake that supplies drinking water to more than 400,000 people in the Dayton area. Production wells that pump drinking water from the aquifer are near the site.
The property’s contamination could have begun as far back as 1978. That’s when Ecolotec Inc., a small, privately owned company in Dayton, obtained approval from the city and state to locate a hazardous waste treatment facility at the site.
James Shoemaker, a hydrologist for Dayton’s Water Department, said giving Ecolotec permission to build was reflective of an era when environmental sensitivity was not as high as it is today. The facility was built before stricter federal hazardous waste recovery laws were enacted in 1984.
“Bad decisions were made in the past to allow industry to build in these sensitive areas,” said.
Ecolotec was not the only company handling hazardous wastes in the area, a situation that later prompted the city of Dayton to develop extensive clean up and public health awareness programs around its well protection areas.
Though it did not specifically address the Irwin Street brownfield, a 2010 study by the Dayton Water Department noted concerns about the presence of so many hazardous industrial substances near water production wells and said the substances “pose the largest threat to Dayton drinking water.”
Ecolotec hauled in hazardous wastes to the Irwin Street facility, stored the wastes in containers and tanks and shipped the wastes from the facility for recycling or disposal in landfills. Wastes that Ecolotec collected from industrial companies included flammable compounds such as acetone, toluene, and creosote and heavy metals such as cadmium, arsenic, chromium, lead and mercury.
Engineers who studied the site in 1995 also found volatile organic compounds (VOCs), including trichloroethane, dichloromethane , and tetrachloroethane, along with toluene and chloroform. VOCs have been identified as air pollutants that can damage the ozone and at high levels are harmful to human health.
In 1990, the Ohio EPA learned from newspaper accounts that a New Jersey company, Stout Environmental Management Inc., had purchased Ecolotec and merged its operations. The Dayton Daily News reported that state officials were in a “tizzy” because Ohio law requires both buyers and sellers of a brownfield to notify the agency of a sale so background checks can been conducted and hazardous waste permits can be transferred to the new owners.
Stout’s Hatfield, Pennsylvania hazardous waste subsidiary – which would be running the Ecolotec facility – was Waste Conversion Inc. According news reports at the time, Waste Conversion had a long and troubled history in several states, including Pennsylvania, which fined the company $1.1 million for violating hazardous waste laws, polluting the environment and endangering its employees during the 1980s.
Despite the state of Ohio’s concerns, the sale of Ecolotec to Stout was completed and the facility kept the Ecolotec name. Its new owner signed an agreement with the EPA saying it would no longer accept “acutely” hazardous or highly toxic waste, according to a story in the Dayton Daily News.
Operations at the current site, the Ohio EPA told the newspaper, “threaten to contribute to water pollution and soil contamination and threaten public health.”
The new Ecolotec also agreed to reduce the overall volume of waste being collected at Irwin Street, allow increased groundwater monitoring, and to move the facility within five years.
The move never happened, because in 1992, another new owner stepped in. Republic Environmental Systems Inc. of Bedford Ohio took over the Ecolotec site in Dayton, according to Ohio incorporation records.
Republic Environmental continued to treat hazardous wastes there until 1995, when it shut down the plant.
A closure plan and a clean-up hold promise, for a short while
Ohio EPA officials began working with Republic in 1995 to clean up contamination on the site in order to make the property attractive to an investor. This required a closure plan – or a detailed plan for testing, groundwater monitoring and removal of tainted soil.
In 1997 the company hired a subcontractor, McCabe Engineering Corp. of Richfield, to carry out the site’s remediation. In June 1998, it gave the property to McCabe for a mere $10, according to the firm’s owner, Edward McCabe. Republic effectively was unloading the property in exchange for the cleanup by McCabe. He, in turn, had hoped to redevelop the property.
McCabe Engineering had an admirable track record. The company had demolished seven buildings and removed polychlorinated biphenels (pcbs) from the Mahoningside Power Plant in Warren, and then prepared the property for redevelopment. At the former Ohio Brass building in Mansfield, McCabe removed contaminated soils, pcbs, and 650 gallons of gasoline. These were among several successful cleanups McCabe completed; the company continues to manage environmental clean-up projects in Ohio.
Negotiations with the state over the clean-up plan between 1995 and 1998 resulted in a legal agreement; in order to arrive at that agreement, the Ohio EPA in September 1998 first sued Republic Environmental and McCabe for violations of the state’s hazardous waste laws. The state said groundwater contamination levels exceeded those permitted by law and that proper procedures to carry out a cleanup had not occurred.
Republic Environmental then signed a consent order with the Ohio EPA in which the company vowed to resolve all issues at the plant. Though McCabe had been hired on as a subcontractor and later owned the land, Republic continued to hold the hazardous waste facility permit and remained the party responsible for signing the agreement with the state.
Then-Ohio EPA Director Donald R Schregardus signed off on a closure plan with Republic Environmental; McCabe did not sign the consent order –something that would become a source of contention years later.
Still, in the fall of 1998, all of the players thought they had a road map to reclaiming and restoring the property. They were wrong.
Stops and starts and a lawsuit plague progress
From 1998 to 2000, McCabe Engineering began removing the chemical contamination from the brownfield.
McCabe said he spent approximately a half million dollars of his own money in the effort. Dayton’s Well Field Protection Fund–funded by a surcharge on residents’ water bills—gave his company $456,000 for “clean up, water sampling and site development” which McCabe used on the decontamination project.
But McCabe and Ohio EPA soon were at loggerheads over how much work needed to be done and how much it would cost.
McCabe claimed the site included more contamination than the agency revealed in the 1998 closure plan and if his suspicions were true, it would cost him more to do the cleanup. He now believes his cynicism was justified; in 2008 court proceedings, his attorneys discovered a memo written by an Ohio EPA inspector in 1995 which mentioned a “pink oozing liquid” on the ground.
McCabe also was upset that in 1999 the Ohio EPA returned $284,000 to Republic Environmental. Republic legally had been required to set aside money in a trust fund dedicated to covering the costs of cleanup but later asked for its money back, asserting there was enough in the trust fund for the clean-up of Irwin Street; the state agreed.
Alan N. Hirth, an attorney for Republic’s former owners, said the Ohio EPA in 1999 returned the money to the company so that it could remediate another property in Bedford. Court records list the owners as Michael Boyas, Lea Morabito Boyas and Stephen Forystek. Several calls to Michael Boyas at Boyas Excavating Inc., a landfill company based in Valley View, Ohio were not returned.
The verdict is in: multi-million dollar fines are levied
After McCabe halted work on Irwin Street, he and the Ohio EPA had meetings, exchanged cleanup plans and argued over what to do next.
The state agency decided it was done meeting and took McCabe and Republic to court in 2007. It filed a civil contempt action in Montgomery County Court against both for not abiding by the 1998 consent order.
Montgomery County Common Pleas Judge Mary Wiseman ruled in 2009 that McCabe and Republic were in contempt of the consent order.
McCabe had argued that because he was not a signatory to the consent decree, he was not bound by it and could not be held liable. The judge ruled that because McCabe was the subcontractor and had been shown a copy of the consent order by Republic, he indeed was liable for the cleanup.
Wiseman also rejected McCabe’s other argument- that Ohio EPA failed to reveal “significant” soil contamination, in other words, information about the “pink oozing liquid.” She ruled that McCabe’s purchase agreement with Republic called for him to buy the property as is, and that he did not conduct “any independent environmental assessment prior to the time of purchase, as one would think a reasonable, prudent purchaser would do.”
Wiseman noted that the purchase agreement required McCabe to assume liability to complete the closure and clean-up of the property. She added, however, that “the sale did not relieve Republic from their commitments to the Ohio EPA.”
The judge said Republic and McCabe both were liable because both failed to monitor ground water contamination during most of 1998 and failed to remediate the contamination. Both were in contempt for failing to provide the state with a written estimate for the cost of remediation, according to the court ruling.
The court order also noted that the defendants failed to notify the Ohio EPA that the facility’s ownership had been transferred from Republic to McCabe. Republic remained the permit holder on the hazardous waste facility even after McCabe purchased the land.
In all, Wiseman found McCabe Engineering and Edward McCabe personally, along with Republic Environmental, liable on nine counts of contempt and ordered them to pay $14.7 million in fines to the state of Ohio. The court ruling did not specify how the fines were to be split between the defendants.
The suit did not name Republic’s three individual owners as defendants so only the company was held guilty on the contempt charges.
The court noted that McCabe was responsible for fulfilling the closure plan and cleaning up the property. Wiseman’s ruling exonerated the Ohio EPA, saying, “the court finds no credible evidence OEPA intentionally made material misrepresentations to McCabe” about the extent of the pollution.
McCabe, despite being upset over the court’s finding, along with his attorney missed the deadline to appeal Wiseman’s order and fines.
Fines yield more fights: Republic folds
Though it remains a party to the hefty fines levied by the court, Republic Environmental is unlikely to pay any of them. Federal bankruptcy records show it filed for a Chapter 11 reorganization in 2001; that petition was changed to a Chapter 7 liquidation in 2003.
Meanwhile, McCabe and the Ohio EPA still haven’t come to terms on a revised closure plan for the Irwin Street property. McCabe submitted an amended proposal in 2011 that the agency returned without approval, noting 16 pages of “deficiencies” or areas where the contamination plan was not good enough for proper cleanup of the site or where testing of soil has been incomplete.
McCabe submitted another amended closure plan to the Ohio EPA in 2012, but the agency returned it with 13 pages of deficiencies. McCabe contends that he addressed all of the outstanding issues in the closure plan he submitted and conducted sufficient testing on the site. He continues to maintain that the state didn’t provide him with enough information about the extent of contamination in the 1998 closure plan and that the state is responsible for further testing.
McCabe, who is now 62, has tried to enlist the support of U.S. EPA at least four times to “seek the truth” from Ohio EPA, but the federal agency has told him it will not interfere in a state action or seek to overturn a court decision.
The Ohio Attorney General’s office, at the behest of the Ohio EPA, went back to court and won additional fines of $523,800 in March 2012 against the Irwin Street property’s current and former owners – Republic Environmental and McCabe – because of the slow progress towards remediation.
Now, the fines against the owners total $15.23 million.
Hirth, the attorney for Republic’s former owners, “did not know issues were unresolved. The first line of responsibility is McCabe. He undertook the closure plan and remediation.”
Hirth said McCabe has been the only party communicating with the state in recent years.
He said Republic’s former owners weren’t notified when the state went back to court to ask for additional fines.
Correspondence continues, so does groundwater testing
On Oct. 4, 2013, the Ohio EPA reminded McCabe he remains in violation of the 1998 consent order and the 2009 court order and will be in violation until a revised closure plan is approved. McCabe may incur, the letter stated, “additional stipulated penalties and enforcement action.”
But the Ohio EPA did grant him a concession in its October letter. It acknowledged the 1995 spill of the pink liquid in the tractor trailer parking area of the property. The agency wrote that Republic treated the area, removed the soil and properly disposed of it.
The agency’s recent letter to McCabe also said the Ohio EPA negotiated a fine in 1995 with Republic about the pink liquid spill and the amount of the fine is confidential.
Tammi Clements, director of the Dayton Water Department, says the city continues to monitor the water quality in the area of the old Ecolotec plant every quarter. The city tests for pollutant levels above the “maximum contamination level” and so far haven’t found levels that would pose a “high threat” to drinking water, said Clements.
She noted that the presence of VOC’s -or air pollutants – also remains at the site.
Are there other solutions?
It has been nearly two decades since the trucks stopped rolling in and out of 636 N. Irwin Street. The closure plans, court filings, engineering documents, and correspondence could fill paper the parking lot with paper, but the paper would sit atop a still contaminated site.
The Irwin Street brownfield raises questions about how far the state should go in enforcing fines and how best to motivate owners who won’t clean up contaminated sites.
Mills, of the Center for Health, Environment and Justice, said there should be stricter enforcement of deadlines for paying fines or property clean-up. Fines are meaningless, she said, if they’re never collected.
“It’s obvious that what they have done so far has not worked,” Mills said. “It’s time to regroup.”
“There should be a set timeline (for clean-up),” said Mills. “All interested parties would agree on a date for the clean-up to be completed. If that date is not met it (the brownfield) should be turned over to the U.S. EPA.”
“It makes no sense to take 15 to 20 years to get these sites cleaned up,” Mills said.
Mills said the U.S. EPA should intervene, or take over properties, when the efforts of state agencies fail to result in action. The federal agency has the legal authority and resources to clean up sites on its own; in contrast to the Ohio EPA, which does not conduct remediations and instead uses its enforcement powers to have businesses clean up properties.
The Ohio EPA said it prefers to work with companies to help them comply with environmental laws.
In a written statement to Eye on Ohio about it enforcement policies, the agency said:
A large percentage of the regulated community conducts itself in a way that is not in violation of the law. When violations occur (like failure to submit an adequate closure plan) Ohio EPA first reaches out to try and help the violator come back into compliance with the law. We did this with Mr. McCabe.
Sometimes violators cannot or will not come into compliance and we are forced to take administrative action – issue consensual or unilateral findings and orders. When this will not work, we involve the Ohio Attorney General’s office. The Attorney General’s staff represents state agencies in court and we were compelled to involve them in this case.
The statement concluded that the Ohio EPA will continue to work with McCabe, the court and the Ohio Attorney General’s office to ensure a proper closure of the Irwin Street site.
Fines collected for the Ohio EPA by the Attorney General’s office are placed in a fund used to help clean up other brownfield sites. Kate Hudson, a spokeswoman for the Attorney General’s office, said the office has the power to impose liens, foreclose on property and garnish income in order to collect fines, but has not pursued these actions with Republic or McCabe.
Leave it up to nature?
Keith Klein, senior development specialist in Dayton’s Economic Development Department, said McCabe has not approached the city about securing economic development grants or loans for the Irwin Street remediation. He said taxes on the property are current, so the city cannot foreclose on it.
Klein noted that Dayton has done well in securing grants for brownfield cleanups and that “about a dozen” remediations either have been completed or gotten underway in the last 10 years. Because most older cities are “built out,” he said, brownfield programs are crucial to attracting new economic development. The programs remove visible blight, protect the health and safety of the community, and prepare land for new activity.
But it may be a long time before 636 North Irwin Street is home to retailers or restaurants.
Shoemaker, of the Dayton Water Department, said nature has been taking care of some of the remediation on its own.
“The pollution numbers are going down,” he said, referring to the results of groundwater monitoring by the city.
For the site to be completely free of contamination, he said, “it could take 60 to 100 years.”