Retail Drug Chain Assumes Liability for Historic Dry Cleaner Spill

Back in 1988, the owner of a dry cleaner located at what was then known as the Buttrey Shopping Center in Bozeman decided to pour separator water from her dry cleaning unit into the floor drains. Approximately $25 worth of PCE was poured down the floor drain and launched a two-decades multi-million cleanup saga that continues today and has morphed into a major vapor intrusion case.

Unfortunately, the separator fluid was poured into a floor drain that was connected to poorly designed and particularly leaky sewer system. The sewer had been originally constructed by the owner of the shopping center in the 1960s and was not bedded in sand or gravel so that the line had flat grade in places. The PCE-laden seperator water settled in the low spots of the sewer and easily dissolved the tar that had been used to seal the sewer joints.

The sewer line terminated in a 6,000 gallon septic tank that the city later alleged was undersized. In 1963 the city got a federal grant to extend sewer service to the shopping center. However, when the shopping sewer line was connected to the city sewer line, the contractor apparently not only failed to plug the septic tank but also installed city sewer line 5 inches higher in the manhole than the pipe that still led to the septic tank. This meant that wastewater would flow first into the septic tank until the level reached high enough to flow out to the city sewer, allowing the denser PCE to settle into the septic.

In 1989, PCE. TCE and DCE began showing up in the drinking wells used for drinking water at the Nelson Mobile Home Park (MHP), north of the Buttrey Shopping Center. Subsequent sampling identified the shopping center septic system/sewer line as the likely source. In 1991, the state DEQ issued an order to the owner of the shopping center, Jewel Food Stores. . The City of Bozeman which was deeded the shopping center sewer line in 1970 was subsequently named as a responsible party by the state in a second order. Pursuant to the orders, the septic tank and its contents were removed, the sewer line was replaced, a vapor extraction system was installed in the area near the former septic system and bottled water was provided to the residents whose wells were impacted. Later, the City and Jewel jointly conducted additional remedial investigations, expanded the SVE system along the sewer line and provided a permanent alternate water supply to the impacted residents.

While these actions were being implemented, EPA recommended that state prepare a hazardous ranking system package to have the area scored for inclusion on the federal NPL. However, the state opted to have the shopping center placed on the state superfund list instead as the Bozeman solvent site (BSS) with a "maximum priority" status.

By 1998, the plume had extended approximately two and half miles from the shopping center, and encompassed approximately 700 acres. About one-half of the area over the plume was on city water supply. To protect human health, the state approved a ground water control zone (GWCZ)for the area impacted by the plume. The GWCZ prohibited drilling of wells and use of groundwater without state approval.

In 1999 Bozeman and Jewel Foods Stores settled a lawsuit that had been filed by Jewel whereby Jewel agreed to pay Bozeman $1.2 million for its past costs, the parties agreed to share future costs 50-50 up to $4 million, and Jewel agreed to pay 70% of costs above $4MM. The City agreed to take the lead to fund an alternative municipal water supply to the affected residents and businesses within the BSS. The Bozeman share of the costs were funded by a $2MM sewer surcharge.

In 2000, the feasibility study work plan was finalized and the DEQ drafted the baseline risk assessment work plan (BRAWP). The City and Jewel implemented a groundwater monitoring program and completed the BRAWP in 2004.

At this time, CVS decided to purchase the Osco Drug chain which was owned by the successor to Jewel Food Stores. It is unclear what diligence CVS did for the BSS or perhaps if it assumed the creation of the GWCZ had effectively ended the risks and material liability associated with the BSS. In any event, CVS apparently assumed the responsibilities being carried out by Jewel Food Stores under the settlement agreement with the Bozeman.

Shortly thereafter, the focus at the BSS turned to potential vapor intrusion concerns. The state requested that parties commence a vapor intrusion investigation at the shopping center, draft a revised baseline risk assessment and feasibility study as well as commenced a source area investigation. An Indoor air quality investigation was conducted at the shopping center and was then expanded to the residential neighborhood. 21 years after the release, a ROD still has not been issued and the extent of potential vapor intrusion concerns has only begun to be investigated.

The next time a client asks why you recommend a phase 2 for a former dry cleaner when a prior phase 1 may have not done so, you can point them to the Bozeman Solvent Site or the Maryland Square Shopping Center in Las Vegas where a 4,000 foot plume has extended into a residential area and resulted in the owner of the shopping center being order to implement a remedy under RCRA.