July 11, 2008

Coal Tar Case May Proceed

By Judy Harrison, Bangor Daily News, Maine

Jul. 11--BANGOR, Maine -- The 1st U.S. Circuit Court of Appeals has upheld the consent decree that will allow the cleanup of coal tar in the Penobscot River to go forward.

A three-judge panel in Boston unanimously rejected a challenge by third -- and fourth-party defendants in a 62-page decision Wednesday. Citizens Communications Co. now can pursue claims against Barrett Paving Materials Inc., Dead River Co., Honeywell International Inc. and others to recoup the $7.625 million it must contribute to the cost of removing cancer-causing deposits from the Bangor waterfront.

If Citizens were successful in obtaining money from the third-party defendants in the case, the firm would keep two-thirds of any money it recovered. The other third would be additional money for the cleanup, according to the terms of a settlement the company, the city and the state Department of Environmental Protection agreed to last summer.

Cleanup is estimated to cost between $12 million and $20 million.

William Devoe, the Bangor attorney who represented the city in the original lawsuit and the settlement, praised the decision Thursday.

"Among other things," he said, "it allows for the recovery of additional money from third-party defendants, which may result in further resources for the cleanup effort. It also upholds the terms of the consent decree, which was the product of a great deal of effort by city representatives and representatives of the state of Maine and Citizens."

Efforts to reach attorneys for Citizens, the Maine Attorney General's Office and the attorneys representing the third- and fourth-party defendants were unsuccessful Thursday.

Initial steps in the cleanup, including the gathering of samples from the riverbed, began in November and continued this spring. Once a study has been completed, DEP and the city will decide the specifics of the cleanup operation.

"Right now, we're looking at some kind of capping approach," City Engineer Jim Ring said in November.

Initial studies done by the city more than seven years ago determined that Bangor Gas Works, which operated on the site from 1881 to 1963 on land where Shaw's Supermarket is now, was the source of the coal tar. It was believed to have been deposited in the river through a sewage outlet that began at the gas plant. The gas works generated coal tar as a waste product of its gas manufacturing operation.

For most of the year, the coal deposit is not much of a problem. But when the water warms in August, the deposits rise to the surface in small "blobs" that stick to objects such as boats and animals. Coal tar, when absorbed through the skin, is known to cause cancer.

U.S. District Judge George Singal concluded two years ago that Citizens was responsible for 60 percent of the cost of cleaning up the coal-tar deposit in the Penobscot River along the city's waterfront redevelopment area. He also assigned 40 percent of the responsibility for the pollution of Dunnett's Cove to the city of Bangor.

The judge also limited the area of the cleanup from the 10 acres proposed by the city to a small section of the river where the tar deposits have been seen. Singal also worked to negotiate the settlement that allowed the preliminary steps toward the cleanup to be taken.

The legal battle began in 2002 when the city sued the Stamford, Conn.-based Citizens, the successor of a series of corporate entities that owned and operated Bangor Gas Works, claiming that the plant was the sole cause of the pollution.

Citizens denied it was responsible for the pollution in the section of the river known as Dunnett's Cove. The company in turn sued a dozen companies alleging that others, including the city, should pay for the cleanup because they, not Citizens, were responsible for the plume-shaped coal-tar deposit. Some of those companies then sued fourth parties.

Thursday's ruling will allow those third- and fourth-party lawsuits to go forward. The city is no longer a party in the litigation.

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