Rudman Winchell Plays Major Role in Historic Environmental Case
On June 3, 2011, Governor LePage signed into law LD1434, An Act to Streamline the Waste Oil Disposal Site Program. This resulted in a remarkable victory for Potentially Responsible Parties (PRPs) at the George West environmental sites in Maine.
Since approximately 1995, Rudman Winchell has represented a large number of clients who were designated PRPs by the Environmental Protection Agency (EPA) and/or Department of Environmental Protection (DEP) at the George West Sites located in Wells, Plymouth, Casco, Ellsworth, and Presque Isle. This legislation pays the cost of the environmental liability for our PRP clients at Plymouth, Casco, Ellsworth and Presque Isle. (The Wells site was resolved separately over 10 years ago.)
All of these sites were contaminated with waste motor oil. Over the course of a number of years, Rudman Winchell attorney Phillip D. Buckley with significant assistance from Virginia K. Putnam, helped negotiate a very successful resolution of liability for the Plymouth Site and worked to implement legislation which pays the PRPs liability costs. This is a unique and novel resolution for a Superfund Site in the United States and saves Rudman Winchell clients thousands of dollars in cleanup costs.
From the mid 1960s to 1980, George West owned and operated a waste oil storage and recycling company. Mr. West’s company collected waste oil generated by hundreds of Maine businesses, individuals, municipalities, schools, and state and federal agencies. Although Mr. West was licensed to operate and the parties providing Mr. West with their waste oil acted in accordance with the laws of the State of Maine, they nevertheless became liable under today’s state and federal environmental laws when it was discovered that the George West Sites were contaminated.
Under current laws, PRPs are subject to strict and joint and several liability for the investigation and cleanup of the contamination. This means each and every PRP is 100% liable for the entire amount.
The most contaminated site is located in the Town of Plymouth. Contamination was first discovered at this site in 1988, and has been the subject of numerous investigations, studies, and remedial activities including the construction of a municipal water system and the establishment of the Plymouth Water District. In 1995, the Site was placed on the National Priorities List (NPL) by the EPA (this is a list of the most significant hazardous waste sites in the nation).
Initially, EPA named approximately 400 parties as PRPs. Many of these PRPs were no longer in business which left approximately 100 PRPs to be responsible for the costs of the investigations and for cleanup. A PRP group was formed to manage the issues jointly.
In 1999, through the efforts of PRP representatives, the Maine Legislature learned of the tremendous financial burden being placed on these small Maine businesses, individuals, and communities arising out of the George West sites. It passed a law providing for loans to the Plymouth PRPs to allow them to pay costs associated with the investigation and cleanup of the Site. This program was administered by the Finance Authority of Maine (FAME) and was called the Plymouth Waste Oil Loan Program. Over the years as the expenses at Plymouth rose, PRPs were allowed to increase their loans to cover their costs for investigations and cleanups.
In 2007, the Maine Legislature passed additional legislation which imposed a premium on the sale of waste oil to provide revenue to support bonds which would pay PRP response costs at the Plymouth, Casco, Ellsworth, and Presque Isle Sites. When the settlement was negotiated for Plymouth in the fall of 2009, FAME was able to issue bonds to pay the future cleanup costs of $14,500,000.00 which meant the PRPs’ shares were covered. Unfortunately the revenue being collected was insufficient to pay all the past costs at Plymouth in addition to the costs the DEP had paid and planned to collect from PRPs at Casco, Ellsworth, and Presque Isle.
In March of 2009, the Legislature issued a resolve asking various stakeholders including representatives from the DEP, FAME, Maine Revenue Service, distributors of waste motor oil, and representatives of PRPs to craft a resolution. Over the course of a number of months, the stakeholders met and worked to find a way to fund the costs of the George West Sites. The result was LD1434, An Act to Streamline the Waste Oil Disposal Site Program. This law cancels all the loans and pays back the PRPs which paid costs out of pocket. In addition to accomplishing the goal of paying the PRP’s costs at these sites, the funding mechanism proposed and implemented results in savings of at least $17,000,000.00 to the citizens of Maine.
The Plymouth site matter was eventually resolved with the EPA in January 2010, 22 years after the contamination was discovered and approximately 14 years after the first PRPs were notified.