Test Results of Soil Could Trigger Lawsuits Against Village
by Andrea Kott
More than 30 private and village-owned properties near the former Mallory/Duracell battery plant in Sleepy Hollow are undergoing testing for mercury contamination, after levels five times higher than state cleanup standards were found at 20 Andrews Lane, and levels three times higher were found at 32 Elm Street.
At press time, several residents were considering legal action against the village, although assigning any responsibility for the contamination cannot begin until test results arrive in August.
State health and environmental officials assured Sleepy Hollow Mayor Ken Wray and the Board of Trustees at a May 6 work session that the newly-discovered white, powdery mercuric oxide posed no imminent health threats. Still, the agency has launched a large-scale study of the vicinity by sampling different depths of soil from properties along Andrews Lane, Elm Street, Kendall and Beekman avenues. It is also conducting a background soil study to assess how much mercury is naturally occurring.
“We take this very seriously,” Wray said. “We think village residents and especially residents who live near the former site need to know everything that is going on.”
Information regarding elevated mercury levels first surfaced last summer, after a couple interested in buying a house at 20 Andrews Lane learned of its proximity to the former Duracell site. The couple hired Jim Rood, owner of Lighthouse Environmental Consultants in Patterson, N.Y., to test the soil. Rood took a 12” composite sample from the front and back of the house and found levels of mercury five times higher than the state standard.
Rood said he took a similar sample from 32 Elm Street, another property the couple saw, which revealed levels of mercury more than three times higher than the state standard. As required by state law, Rood reported his findings to the state Department of Environmental Conservation, which contacted the village.
According to Rood, “The DEC said, ‘Thank you, we’ll handle it from here. The number’s not that bad.’”
Records show the former Duracell site, now a parking lot at 60 Elm Street, was cleaned up between 1990 and 1993, in accordance with a Consent Order between Duracell and DEC. Duracell paid for the clean-up, which involved the excavation and off-site disposal of contaminated soil. The site was capped with clean soil, seeded and removed in 1994 from the Registry of Inactive Hazardous Waste Disposal Sites. Cleanup also involved removing and replacing with clean fill hundreds of tons of contaminated soil from the backyards of several residences on Kendall Avenue and Elm Street, which abut the site, and the demolition of one house on Elm Street.
However, when Duracell remediated the site 15 years ago, specific cleanup criteria did not exist, according to Michael Ryan of the DEC. “Back in the 1990s, we didn’t have a hard number for mercury levels,” Ryan said.
It wasn’t until 2006 that the state established .81 parts per million (ppm) as the specific cleanup objective for mercury in soil. The village is concerned that the results of earlier cleanup efforts are too far below the new standards.
“This board never would have voted for $6 million worth of improvements, knowing that property exceeded [current] standards for cleanup,” Trustee David Schroedel told representatives from the DEC, referring to the vicinity where Barnhart Park and the future senior center are located. “You’ve had in your possession the data from the initial cleanup, so it is conceivable that you had in your possession the information that would have told you that this site did not meet current standards.”
An agreement to transfer the Duracell property from Gillette, its parent company, to the village required the village to dedicate the property in perpetuity for use as park land and not to use it for residential or any other housing purposes. The agreement also indemnified Gillette, holding it “harmless” from “any claims, administrative actions or suits relating to the condition of the site at the time of transfer or its subsequent condition and use.” The indemnity clause, along with the changes in mercury cleanup standards, make it difficult to assign responsibility for just-discovered or future contamination.
Professor Nicholas Robinson, former Sleepy Hollow Planning Board chairman and the Gilbert and Sarah Kerlin Distinguished Professor of Environmental Law at Pace University School of Law, criticized the DEC for keeping confidential much of the information about the initial cleanups.
“The village was not much informed about it,” Robinson said. He also blamed the agency for doing as little cleaning up as possible. “They do what is legally minimally required and then these problems crop up again,” Robinson said. “It doesn’t surprise me that next to the industrial site you’d find contaminated soils.”
Although the village made a point of re-testing Barnhart Park before undertaking its most recent expansion and renovation, Robinson said it did not conduct the necessary environmental impact assessment. In fact, the village resolved on Feb. 11, 2003 not to prepare a Draft Environmental Impact Statement, having concluded that the renovation would have no “significant effect on the environment.” (In response to Robinson’s criticism of the village for not conducting environmental reviews for the senior center, which is across from the Duracell site, former village administrator, Dwight Douglas said, “The senior center was never located on the site that was part of the clean up.”)
The village did, however, pay at least two environmental consultants to review records of earlier cleanups and to retest the current parking lot and the park. In 2004, HDR, Inc., an environmental engineering firm, found and remediated two areas, one towards the south end of the current parking lot and a 5’ x 5’ patch near the gate entrance to what is now the basketball court, according to Michael Musso, project engineer.
“Those were the hot spots,” Musso said. “We did a lot of sampling but nothing (else) significant has come up.”
Although no other contamination was found, the village covered the entire park, including the turf fields and all play areas, with impermeable surfaces, according to village architect and building inspector, Sean McCarthy. Even the senior center has 12 inches of concrete beneath it, he said. The village has asked the DEC to add the center, the park, as well as the volunteer ambulance corps building, to its list of properties to be tested.
The DEC said it does not plan to re-test the current parking lot, which the village capped with concrete a few years ago, or the remediated backyards of Kendall Avenue residences. It noted the possibility of the battery factory’s fans having dispersed the white powdery mercury. In addition, the state Health Department said there are background levels of contaminants everywhere in the environment.
Musso agreed. “You’re going to find mercury in any sample you take in town.”
Unlike petroleum or smoke, mercuric oxide does not form a plume that spreads; rather, it binds to soil. Thus, any contamination is likely to be found in shallow soils, not deep down or in groundwater, the DEC said. While links between mercuric oxide exposure and cancer are inconclusive, inordinate numbers of cancer deaths in the area have made the recent discoveries alarming to some.
Others, like Maria Demilia-Powers, are not worried.
“Proving the nexus between environmental contamination and cancer is very hard to do,” said the former trustee, who grew up in an Elm Street house abutting the site and lost her parents, uncle and cousin to the disease. All except her mother grew up in the house, she said.
“I don’t think the site was ever cleaned up properly,” Demilia-Powers said. “The DEC didn’t know what it was doing. The village didn’t know what it was doing either.” Still, she said, “I think whatever’s there is negligible.”
The DEC is not concerned either, since it has found much higher levels of mercury – tens of thousands of times higher – at other Duracell sites, the DEC said.
That does not ease the village’s concerns, however. “It doesn’t comfort me when you tell me there are other sites that have far more contamination than this site,” Schroedel said. ‘In 1993 we had core samples from the entire site. Can [DEC] let the village of Sleepy Hollow know what percentage of that site exceeds the current standards?”
Rood has questions, too. He wants to know why, 15 years after the initial cleanup, people are still taking samples.
“How far did somebody test the distance away from ground zero? Did anyone determine where the contamination stopped?” Since word of the mercury contamination has spread, more residents are contacting him to have their soil tested, he said.
In the meantime, 20 Andrews Lane is off the market.