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Navigation law spills costs onto another north country family

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BRIER HILL — When Texaco moved out of New York state in the late 1980s, the company left its tanks and pumps behind in this St. Lawrence County hamlet for property owner Arthur Whalen to deal with later.

Mr. Whalen called the state Department of Environmental Conservation to ask what should be done with the tanks, his daughter Michele Whalen said.

“My father contacted them years ago after Texaco left because he was building an above-ground tank,” she said. “My parents did exactly what they were told to do by the state of New York and they filled the three tanks with sand.”

Almost two decades later, in 2006, DEC tested the property for contamination, prompting a state-led cleanup of the site.

That was when the bills started arriving. On Oct. 11, 2006, the couple received a bill from the state comptroller’s office for $345,362.

Under New York’s navigation law, owners may be held responsible for the cleanup cost on their property even if they were not responsible for the contamination. Even the state Attorney General’s Office characterizes the landowners’ plight as a case of buyer beware.

To this date, Ms. Whalen said, her parents have not paid.

“I have a copy from the Albany county clerk summoning my parents to appear in Albany,” she said. “My mother’s blind. My father’s deaf. They are old. For them to go to Albany once a week is a chore — so they ignored it.”

Elsewhere in the county, other families have been forced to pay for the cleanup of oil spills. In Ogdensburg, Laurel B. Roethel was coerced to pay more than $100,000 to the state in a legal settlement. Another couple in Madrid has struggled to pay nearly $500,000 in fees.

DEC Region 6 spokesman Stephen W. Litwhiler said the department sets priorities for cleanups of the 350 north country oil spills reported each year by environmental impact.

“Emergency response cleanups get high priority, since they just happened and have the best chance for getting a complete cleanup before spread occurs,” he said. “Any spill which is a clear threat to human health or the environment will be pursued before spills which don’t have a direct chance to affect human health or the environment.”

At any given time, DEC is working on about 75 spills, Mr. Litwhiler said, noting that DEC is not required to seek property owners’ permission before beginning work.

The 1974 navigation law places responsibility for cleanups on the discharger, Mr. Litwhiler said.

“When the discharger is unknown, or is unable or unwilling to complete the cleanup, the state has the authority and obligation to mitigate the damages, and may hire contractors to perform the cleanup using money from the spill fund,” he said.

However, the law does not clearly define “discharger,” leaving the assignment of responsibility in navigation law cases in the hands of individuals.

Mr. Litwhiler said the attorney general’s office decides whom to go after to recover cleanup money.

“There are many factors that are considered when determining liability for those costs, and the attorney general deals with each case on its particular merits,” he said.

Jennifer Givner, a spokeswoman for state Attorney General Eric T. Schneiderman, said it doesn’t matter who initially placed pollution into the ground, but who owns the property when a spill is found.

“The case comes to us to determine how we can replenish these funds. We have a unit that is in charge of recovering those funds for the state,” she said. “The way that it works is it is current ownership; whoever is the current owner of the property when the contamination is cleaned up reimburses the cost.”

Ms. Givner said these cases are common, especially in dense urban areas where properties may have had a number of uses. In the north country, however, the gasoline business went through a boom as Americans turned toward automobile travel in the 1920s and ’30s, followed by a bust as retailers consolidated, leaving abandoned pumps and hidden underground tanks lining the streets of many villages.

“It is sort of a buyer beware issue,” she said. “It is very clear what businesses were housed on these properties beforehand. The owners knew that there might be contamination on their land.”

In the Whalens’ case, the property in the town of Morristown was already family-owned when Texaco installed the tanks.

“They put steel tanks in the ground, which rust and deteriorate, and fill them up with the gas,” Ms. Whalen said. “Nobody thought about it; nobody cared. They were Texaco’s tanks. Texaco didn’t get hit with anything.”

In the meantime, the bill for their property’s cleanup has ballooned to $402,962.69, Ms. Whalen said — a sum her parents don’t intend to pay.

“All that is going to happen is the state is going to take the property when my parents die,” she said. “They’re old school. They don’t complain; they just take it and figure it will be dealt with when they’re dead, and when they’re dead, they’re dead.”

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