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Ohio District Entangled in Superfund Suit

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Bethel, Ohio--A school district that tried to "do the right thing" in 1974 by removing 30 pounds of outdated chemicals from school laboratories has found itself implicated in a multimillion-dollar lawsuit brought by the federal government to clean up the site where the chemicals were dumped.

Twelve years ago, the Bethel-Tate Board of Education paid Chem-Dyne, a now-bankrupt hazardous-waste broker, $150 to remove the chemicals. The U.S. Environmental Protection Agency is now seeking up to $28,000 from the district for contributing to the hazardous waste abandoned at the Chem-Dyne site in Hamilton, near Cincinnati. It is one of the largest waste sites targeted for cleanup by the federal "Superfund" program.

The Superfund was established to clean up toxic-waste sites, but federal law requires that the epa attempt to recover costs from those who produce the waste.

The Bethel-Tate system, which was notified of its involvement in the suit this month, is thought to be the only school district in the U.S. named as a defendant in a Superfund case, although other public agencies have been named in such cases, according to the epa

"We don't normally sue public agencies," explained Margaret McCue, an epa spokesman in the agency's Chicago office. "But anybody who has any connection with the site is liable." Ms. McCue added that the agency would seek restitution from other school districts if they are found to have contributed to a Superfund site.

Although hazardous chemicals are routinely found in junior- and senior-high-school chemistry and biology classrooms, experts on hazardous waste contend that school administrators who try to dispose properly of the chemicals are often frustrated by high costs, uncooperative landfill operators, and complex state and federal disposal regulations. (See Education Week, Nov. 16 and Nov. 23, 1981.)

"We tried to dispose of something in the proper manner," said William Bick, superintendent of the 2,000-student district. "And then 12 years later, it comes back to haunt you."

"We were trying to do the right thing," Mr. Bick added. "At the time, it seemed a very prudent way of getting rid of it, rather than taking it out and burying it somewhere."

Seven years after Mr. Bick's district removed the chemicals from its school, the epa exempted school labs from a regulation that prohibits the disposal of hazardous liquids in landfills. The reasons given were the "greatly limited" availability of treatment or disposal options for laboratory wastes to comply with alternative waste-disposal methods and the special problems faced by school labs that generate small amounts of toxic wastes.

Industrial Waste

In 1976, the Ohio epa filed suit against Chem-Dyne for unlawfully dumping industrial waste. At the same time, the U.S. epa filed a separate suit in federal district court seeking cleanup costs from Chem-Dyne and more than 100 companies that had used the firm's disposal services, including Monsanto, B.F. Goodrich, Shell Oil, and Georgia Pacific.

"We had originally gone after the people we thought were the most obvious and the biggest contributors," said Ms. McCue.

In 1980, William Kovacs, the former chief operating officer for Chem-Dyne, filed for bankruptcy. This year, the U.S. Supreme Court ruled that Mr. Kovacs could not be held responsible for the costs of cleaning up the 10-acre site.

In a 1982 settlement, 109 companies paid the Superfund $2.4 million Ms. McCue said. With an additional $4.6 million from the Superfund, theepa has removed 8,600 drums and 31 bulk-storage tanks of chemicals that had been left at the site when Chem-Dyne went bankrupt.

But because underground water, soil, and building sites are also contaminated, the epa filed suit against 30 companies--some of which had been named in the 1976 suit but refused to settle in 1982--to help pay for subsurface cleanup. And those 30 companies named another approximately 200 defendants to the list, one of which was the Bethel-Tate district.

"We never sued the district," said Ms. McCue of the epa "Somebody else added them. ... That's a very routine legal step. The original suers have no control over who is added."

Attempts to reach the lawyer representing the 230 defendants were unsuccessful.

Tiered Settlements

The 230 defendants, who are acting jointly, were responsible for devising an allocation system for the cleanup cost, which Mr. Bick said is estimated at $17 million. The defen-dants developed a tiered settlement offer that divides the cleanup cost among the defendants according to the quantity of chemicals dumped and the number of times the site was used, Mr. Bick said.

"We really never had any input into that," Mr. Bick said of the development of the tiered system. "That was all structured by the attorneys and their negotiators. I think it was fair. The whole thing is probably too complex for us to deal with as a district, and I think we have to leave it up to those firms to come up with a procedure."

The school district, which is in the lowest tier of payment, has been given two options for paying the settlement: It can pay $11,000 now and could be asked to pay more later, or it can pay $28,000 and never have to pay again, Mr. Bick said.

"The amount of money the district spent [to have the chemicals removed] is not necessarily related to the degree of problem that they caused," said Ms. McCue. "It's possible that their $150 worth of chemicals was the most toxic material6that went to Chem-Dyne."

The defendant occupying the second-lowest tier of payment, the superintendent said, was asked to pay an initial $23,000, with the possibility of paying more at a later date.

Unable To Pay

Bethel-Tate officials are "standing pat at the moment," Mr. Bick said. Because the expenditure was not part of the district's $4.7-million annual budget, he said, the district intends to "throw itself on the mercy of the epa"

"We cannot pass on the cost of our operations like other generators have," said Mr. Bick, who is currently involved in negotiations with the defendants and the epa "We are just not in the position to pay it."

But Ms. McCue said both the epa and the defendants have the right to sue those who do not reach settlement. "So [the district] would not only have to throw themselves on our mercy, but they might have to turn around and throw themselves on the mercy of the other defendants," she said.

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