In the late 1990s, a real estate developer purchased an abandoned service station at a sheriff’s sale. The site was located on the barrier island near Atlantic City, New Jersey. The service station had been owned previously by an independent operator. That owner purchased the property from a major oil company in 1983. Our client, the real estate developer, never operated the service station. During his ownership, it had been used solely as a parking lot; nevertheless, the client had plans to develop the property.
In around 1999, the State required that the on-site USTs be excavated and removed. State regulations require that abandoned USTs be removed after a certain period of time. Holes were not detected in the USTs. However, significant soil and ground-water contamination were uncovered and the impacted soil was detected immediately beneath the macadam, suggesting that a surficial release had occurred, such as a line failure, dispenser leak or an overfill.
To evaluate the age of the release and assess the potential liability of previous owners, a series of boreholes were advanced and about 20 soil samples were collected for analysis of alkyl leads and TOL. MTEL and/or TEL were detected in the samples. Based on the quantity of gasoline present in the samples, the lead content of the original gasoline was estimated.
The presence of MTEL, which is a component of the lead mixes, indicates that the gasoline was produced before 1983. The TOL concentrations were in the range of gasoline produced during the 1970s. Furthermore, the TOL concentrations increased moving further away from the UST system. Based on these chemical data, the local geological and hydrogeological conditions, we opined that the release began in the 1970s. Considering the distance that the gasoline had travelled and the hydrological conditions, it was suggested that the release had began as early as 1973. Because the contamination continued beyond the extent of our sampling locations, it is certainly possible that the release began before 1973; however, we did not have any means to quantify this time frame. Assuming an ownership time frame during the release of 1973 until 1983, we allocated 42% of the responsibility to the oil company. We further opined that our client was responsible for 58% of the clients (his ownership time frame plus the time frame of the independent operator who was no longer solvent or alive).
The oil company refused to participate in the cleanup and the case went to court (6400 Corporation v. Chevron USA, Inc. and Gulf Oil Corporation, Atlantic County Court, 2006). The court agreed with the time frames calculated from the alkyl lead and TOL data. The court also agreed with the allocation of responsibility in a separate trial. The oil company subsequently appealed the decision. In 2007, the State appellate court affirmed the lower court’s decision. Further details on this case study are provided in Oudijk (2007).
In this case, the presence of alkyl leads, and in particular the type of lead compound, helped to identify the responsible party. Furthermore, the concentration of lead in the gasoline was within the range for the oil company’s ownership and this piece of evidence was used to estimate the age of the gasoline release.