Cleaning up someone else's mess

N.E. businesses billed for oil dump cleanup

Paul Borriello, former owner of Lynn Fells Exxon in Saugus, owes $20,000 as part of the $65 million Superfund cleanup bill. (Globe Staff Photo / Mark Wilson)

They were the responsible ones: thousands of service station owners and other business people across New England who made the effort to properly dispose of waste oil and antifreeze by sending it to the sprawling Beede Waste Oil Co. in Plaistow, N.H.

Now they are being punished for their conscientious ways.

Owners of gas stations and auto repair shops are being billed tens of thousands of dollars each to pay for the more than $65 million cleanup at the deeply contaminated Beede site. Its owners were prosecuted but don't have enough money to pay for the work.

Under the federal Superfund law, aimed at cleaning up the nation's most polluted dumps, if the people or companies that made the mess can't clean it up, anyone who generated waste that wound up in a Superfund site such as Beede is responsible to pay for it - even if they broke no laws.

"I did everything right in getting rid of the oil, and I just got a letter saying I owe about $20,000 in 30 days or they are going to sue me," said Paul Borriello, former owner of Lynn Fells Exxon in Saugus. Like other former Beede customers, he had no idea that the owner was improperly disposing of oil.

"I've always run a legitimate business and been environmentally responsible," he said. "I could have dumped it down the drain and not owed anything."

Making the situation more unbearable, many of the mom-and-pop business owners say, Exxon Mobil - with more than $45 billion in profit last year - is leading the charge to collect their money.

The law gives some companies that have already settled their bill with the government the legal right to go after other businesses the government didn't pursue, or find, for payment. The big companies that sent the most waste to Beede - Exxon Mobil and others, which also didn't know of Beede's practices - have agreed to pay millions and are now, in turn, charging those smaller businesses.

More than 1,000 small businesses across New England potentially could receive demand notices for thousands of dollars in payments each - money that many simply don't have and that they believe Exxon Mobil can more easily afford.

A spokeswoman for Exxon Mobil declined to comment and referred questions to the US Environmental Protection Agency because "they are managing and overseeing everything."

The 40-acre Beede site in Southern New Hampshire - which included several waste oil recycling and reselling operations and an asphalt plant - opened in the 1920s. For about the next 70 years, it received waste oil, antifreeze, and other contaminants from New England businesses and federal, state, and local governments. Early governmental oversight is unclear; in 1982 Beede got a hazardous waste transporter permit, but records don't indicate whether it was from state or federal authorities. Not long after that, environmental violations began to surface.

When the company finally closed in 1994, officials found the site literally oozing with oil, polluting the soil and groundwater below. Its last owner, Mark O. Henry of North Andover, was convicted and sentenced to three years in federal prison on related charges.

Beede was declared a Superfund cleanup site in 1996. The EPA then spent three years poring through the company's manifests to identify roughly 3,000 to 5,000 businesses and governmental agencies that sent or transported waste to Beede - from Exxon Mobil, which sent more than a million gallons, to the tiny Hopedale Library, which shipped several hundred gallons when the building switched from oil to gas in the early 1990s. Defenders of the law say the government has little choice but to pursue companies that sent waste to Superfund sites; otherwise, taxpayers would have to pick up the tab.

The EPA eventually settled with about 1,300 mostly small businesses and public agencies for about $17 million - but gave up pursuing the rest because they couldn't be found, or they owed too little. Then, in 2006, more than two dozen companies that sent the most waste to Beede - including Waste Management and Exxon Mobil - agreed to pay for and conduct the remaining cleanup, as part of their own settlement with the EPA. Design work is under way, and the companies' part of the cleanup will begin in 2011. The final cost is unknown.

Now, some of those large generators, including Exxon Mobil, have hired a Quincy law firm to go after the smaller operators the EPA didn't get, as the law allows. The Quincy law firm - Giarrusso Norton Cooley & McGlone - declined to comment.

Cynthia Lewis, an EPA lawyer, said Beede is unusual in that it kept detailed records of who dropped off oil and other waste, and where it came from. Lewis said the EPA tried earlier to settle with many of the businesses - starting with around $5 a gallon and granting them immunity from future lawsuits. Now, the larger companies are demanding that some businesses pay more than double what it appears they had been offered in an earlier settlement by the EPA.

For example, Borriello is being charged $6.46 a gallon. But a strongly worded letter to Richard Falvey, the former operator of North Street Texaco in Hyannis, said he owes $12 a gallon. That translates into about $38,000 he does not have.

"I have never heard anything about this in the last 20 years and then I get a notice last Monday . . . it makes me sound like a deadbeat," Falvey said last week. He sold his Texaco station many years ago and speculated that a letter arrived there that was never forwarded to him. "I'm in the phone book, I'm not that hard to find. And I did nothing wrong."

Officials at the New England Service Station and Automotive Repair Association said they have heard from about three dozen current or former owners of auto-related business who have received demand notices, and expect far more. They question whether the Beede company's shipment records are accurate.

"What is also killing a lot of the guys is that it is Exxon . . . that is going after them," said Bob O'Keefe, a Lowell automotive repair business owner and board member of the service station association. He has already paid the roughly $20,000 he owed by tracking down an old insurance policy that covered him; but, he says, that may not be an option for others.

He acknowledges that Exxon did nothing wrong, but it galls him to have Exxon acting as a collection agency. "If you see them making $40 billion in profit . . ." he said, "that's not fair."

But fairness is not part of the Superfund law's equation, according to letters from the Quincy law firm to service station owners. They state: "Neither fairness nor your compliance with the applicable laws at the time of disposal provides any defense."

Beth Daley can be reached at bdaley@globe.com.