Justice Epa Style?

By the bizarre logic of Superfund, hazardous-waste operators may go free while their law-abiding customers pay the cost of cleaning up their mistakes

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It has during the spring of 1976 that a waste-treatment facility in Oswego, N.Y., first came to the attention of the federal government, when a lagoon full of hazardous gunk overflowed and spilled into a stream feeding Lake Ontario. In the 12 years since, the federal government has waged a legal compaign to have the 15-acre site returned to a state of environmental safety. Because Pollution Abatement Services of Oswego Inc. (PAS), the operator of the site, was insolvent, the entire cost of cleaning up the neglected site -- some $12 million -- has been assigned to 83 parties, all of them former PAS customers who thought their hazardous wastes were being incinerated at a permitted facility.

But what of the owners of PAS? How much of the cleanup costs have they paid?

So far, they haven't paid a dime.

Officially, the money owed by the PAS owners goes back to that original spill in 1976 and one the following spring. In 1983, the U.S. District Court for the Northern District of New York, in Auburn, found that PAS's president and vice-president, H. Willard Pierce and Jack Miller, were sufficiently responsible for the corporation's day-to-day operations to hold them personally liable for the government's expenses in cleaning up the spill.

The eventual $411,269 judgment was one of the first in an environmental case in which individuals were held liable for their personal activities within a corporation, and it was upheld by an appeals court two years later. Since then, Pierce has died, effectively leaving no one but Miller to pay the bill. Miller says it is unlikely the government will ever get any of it. "I have no money," he explains, "and from nothing comes nothing."

But Jack Miller isn't exactly sitting home collecting Social Security. In fact, at 59, Miller is still in the hazardous-waste business, as president of D&J Transportation Specialists Inc., a waste-hauling company licensed in 40 states. Miller started the company back in 1975 as a way of augmenting his PAS salary, and it was one of many companies that trucked wastes into the Oswego site. Originally headquartered in a Motel 7, D&J is now based in Syracuse and operates a fleet of 20 trucks.

Oh, and one other important thing: D&J is wholly owned by Jack Miller's wife, Dorothy.

So why, you ask, hasn't the Environmental Protection Agency gone after the assets of D&J Transportation to help pay for Miller's $411,269 judgment, or for some portion of the $12-million cleanup of the Oswego site? For one thing, many of the government lawyers who have been working on the PAS case admit that the didn't even know about D&J or Miller's connection to it. And even if they had known, they argue, it would have been a much more difficult task to pierce the corporate veil around D&J than to go after former PAS customers for the full amount of the cleanup. By the logic of Superfund, expediency is more important than justice.

"We felt it was not a productive use of our time and effort to go after nonviable parties," explained Gregory Snyder, an EPA attorney on the case, "especially when we had viable parties in hand. So we used some prosecutorial discretion, basically, not to spend time trying to get blood out of a turnip."

But not everyone is content to leave it at that. James Moorman, an environmental lawyer who represented one of the companies that have paid $9 million toward the Oswego cleanup, said those companies now have up to three years under the Superfund law to try to recoup some of that $9 million from other responsible parties. "If it turns out that Miller has a significant amount of money or insurance policies, we could sue him for the full $9 million," Moorman explained. "Rest assured that he has not dropped off our radar screen."

For his part, Miller thinks it's time people left him -- and his wife's company -- alone. "Don't get D&J involved in this," he pleaded. "There is no connection whatsoever with PAS."