Let’s start by stating the painfully obvious. For the past several years, the Board of Supervisors of Cecil Township, Washington County, Pennsylvania has been led by possibly a few of the dumbest human beings on Earth. Over the past several years, the Township has pursued policies ranging from pointless to regressive to downright moronic, garnering repeated headlines for their never-ending parade of missteps. But it is the latest toxic pickle the Township finds itself in that may prove to be the most costly and consequential of all for the Second-Class Township with a population of approximately 13,000.
The ABC’s of the ABB Property
At issue is the controversy over what we commonly refer to as the “ABB Property,” an 80-acre tract of land in the Muse portion of Cecil Township. According to the Pennsylvania Department of Environmental Protection (DEP), the Henry Clay Frick Coal Company initially developed the property in 1923 as a coal mine. Subsequent uses include chemical recovery and recycling operations conducted on the property and the manufacture and sale of chemical additives and equipment and industrial parts.
North Carolina-based company ABB Inc. got the property, also known as the former CE Cast site, in 2000 as part a more substantial corporate acquisition. The deed to the property contains a clause limiting the use of the property to commercial or industrial purposes, explicitly stating that they may not use the property for schools, nursing homes, and other residential-style facilities and recreation areas. To be clear, this is not standard deed language and should be a clear indicator that something is wrong with the property.
If that wasn’t an indicator that something is amiss, there’s also the fact that a series of state and federal regulatory investigations and reports dating back to 1990 designated the site an environmental hazard. The main area of concern is a three-acre solid waste landfill designed, permitted, constructed, and filled with excavated soil and drums removed along the banks of an unnamed tributary of Brush Run Creek. The landfill was initially closed in 1981, with the hazardous material placed underground on the site.
Additional repairs made in 1988 before ABB voluntarily closed the landfill in 2009. This closure entailed removing the landfill, including the cap, contents, and liner, and disposing of the impacted (which is regulatory speak for “toxic”) material in an off-site location. In plain English, someone buried all the toxic landfill junk in 1981 and left it sealed there until 2009 when ABB paid to have it removed.
Carcinogens Still Remain on the ABB Property
Unfortunately, these efforts have in no way removed the environmental hazards associated with the property. There are ongoing contamination concerns relating to the soil and groundwater that extend beyond the site to portions of the surrounding areas of Muse. But in classic DEP fashion, environmental testing seems to take place in every area except where it would likely show the true ongoing issues impacting the community.
Specifically, the DEP has identified the following chemicals at levels “above the Medium-Specific Concentrations in on-site groundwater”, with the descriptions coming from the Agency for Toxic Substances and Disease Registry (ATSDR):
- Tetrachloroethene: Likely to be carcinogenic to humans
- Trichloroethene: Carcinogenic to humans (evidence for cancer is based on kidney cancer, limited evidence for non-Hodgkin lymphoma and liver cancer, as well as, various tumors in animals)
- 1, 1, 1 – Trichloroethane: EPA has also determined that 1,1,1-trichloroethane is not classifiable as to its human carcinogenicity. The likelihood is very low that exposure to 1,1,1-trichloroethane levels found near hazardous waste sites would cause significant health effects.
- 1, 2, 2 – Trichloroethane: EPA: Possibly carcinogenic to humans
- 1,1 – Dichloroethane: The EPA has determined that 1,1-dichloroethane is a possible human carcinogen.
- 1,1 – Dichloroethene: This is a volatile organic compound, not occurring naturally, that can cause damage to the liver, nervous system, kidneys, and respiratory organs. There have not been any tests as to whether exposure causes cancer in humans.
- 1,2 – Dichloroethane: EPA: Probable human carcinogen.
- Cis, 1,2 – Dichloroethene: EPA: Inadequate information to assess carcinogenic potential of this volatile organic compound.
- Benzene: EPA: Known human carcinogen
- Methylene Chloride: The DHHS has determined that methylene chloride may be reasonably anticipated to be a human carcinogen based on adequate evidence in experimental animals.
- Vinyl Chloride: EPA has determined that vinyl chloride is a human carcinogen.
- 1,4 – Dioxane: The EPA has established that 1,4-dioxane is likely to be carcinogenic to humans.
The DEP then states that the water flows to the south, which is one of the few places where there are no groundwater monitoring wells to track how these chemicals are impacting larger groundwater sources around the site that feed into local creeks and streams. Isn’t it amazing how easy it is not to find anything when you know exactly where not to look?
So the property is, by any definition, a substantial environmental hazard. Environmental reports suggest that soil contamination on the site may run up to two feet deep, and those reports acknowledge the ultimate extent of the contamination is still unknown.
In situations like these, where toxic material is buried in the soil, the best alternative to a massively expensive total remediation is just to leave the site alone. The last thing you want to do is dig up the contaminated soil and reintroduce the toxic material back into the environment where it can spread beyond the known impact area. Although not perfect, leaving the remnants of the area’s industrial past buried is often the best of a choice of bad options.
Sounds simple, right? At the very least, do no additional harm by leaving the bad stuff undisturbed. Unfortunately, the leadership of the Cecil Township Board of Supervisors apparently don’t know what an 80-acre Mr. Yuk sticker looks like, because they seem hell-bent on not only disturbing the contaminated soil but building a public works building right on the most toxic part of the 80-acre site.
And if all the reasons stated above didn’t set off a red alert, the fact that ABB is selling the property to Cecil Township for the princely sum of $10 (yes, you read that correctly) should be a major indicator that this may be the worst real estate deal since the Lenape Indians sold the island of Manhattan to the Dutch East India Company for $24 worth of trinkets in 1626. Since the Lenape probably didn’t get cancer as a result of the sale, it may be even worse.
Now we’ve established the history, and the problems associated with the ABB property, let’s turn our attention to how Cecil Township got involved in this mess, and how they can get out of it.
The Purchase Agreement
Through a Right to Know Law request, Goose in the Gallows obtained a copy of the Sales Agreement between Cecil Township and ABB Inc. dated 11/06/17. The Agreement, along with several attachments, is embedded in its entirety below. Any highlighting of the specific language is solely for emphasis.
Here are the basics of the deal which is still in full force and effect: Cecil Township agrees to buy the entire 80 acre ABB property in Muse for $10, which works out to approximately 11.5¢ per acre.
The Agreement acknowledges that the property “has a long and varied history of mining and industrial uses which have created several environmental issues requiring remediation work.” It is important to note that the Agreement, along with the attached reports, are all predicated on the theory that there are no additional undocumented environmental issues. The issue of additional undocumented problems is an essential point we’ll come back to later on.
As part of the Agreement, Cecil Township agrees to pay up to $450,000 of taxpayer money for the Act 2 work. “Act 2” refers to a process by which the Township will submit a remediation plan to the PA DEP. If approved, the Act 2 plan serves as a blueprint for the cleanup efforts with the DEP signing off on the property as “remediated” at the end of the process. Assuming everything goes according to the schedule submitted by Cecil Township, the Act 2 process would be complete by January 2023, although DEP would grant an extension upon request.
Cecil Township intends to pursue grant funding for the $450,000, but to date, they have secured none. Sources inside the Township claim that approximately $300,000 of the $450,000 has already been spent on the project. These funds are restricted by the Sales Agreement to be paid only to Gateway Engineering (the township’s current engineering firm) and American GeoSciences (the environmental consulting firm). Any additional costs incurred by Cecil Township (including legal fees) do not count towards the $450,000 commitment.
The Agreement states that ABB has received no notice from any governmental authority alleging a violation of any health code violation or any other law or regulation (aside from the laundry list of existing environmental issues). ABB claims that but for the documented environmental problems, they do not know of any storage tanks above or below ground or any Hazardous Materials in or on the property.
This claim is a big deal. ABB says there are no surprises buried on the property to the best of their knowledge. While ABB may not have actual knowledge of any additional environmental issues, that doesn’t mean they don’t exist. Goose in the Gallows can confirm that at least one township official, Supervisor Ron Fleeher, has first-hand knowledge that many drums filled with presumably hazardous waste are buried on the site.
Why is this a big deal? Because the Sales Agreement says, the commitment by Cecil Township for remediating the property is not limited to $450,000. To be specific, the Agreement states that the township “shall be responsible for conducting all necessary investigation, characterization, remediation and reporting activities on the Land to obtain an Act 2 Release from DEP and perform all necessary work to obtain an Act 2 Release for the entire Property, including but not limited to all activities set forth in the Act 2 Plan.”
There is language in the Agreement stating that ABB shall be “primarily responsible for environmental liabilities on the Property pending the Act 2 Release.” But then ABB punts the ball back to the township’s engineer and environmental consultant, who “will take the lead on the Act 2 work.” So who is paying these people? Does Cecil Township get reimbursed? And what does being “primarily responsible” mean in terms of who pays the bills? According to the Sales Agreement, the township has to put up a minimum of $450,000 while ABB has no explicit financial obligation. Meanwhile, Gateway Engineers and American GeoSciences will make a fortune on this project, which could quickly turn into a toxic money pit for taxpayers.
If there are additional environmental problems undisclosed until after the Closing Date of the deal, the township (and by extension the taxpayers) are on the hook for the total cost of the Act 2 remediation, which could easily run into the millions of dollars. However, if they discover any additional issues before the Closing Date, AND there is a violation issued by the DEP or another governmental authority (remember that phrase), then ABB would be on the hook for those specific costs. But without the violation (which is hardly a given with the DEP), Cecil Township is left holding the bag.
There are numerous references to the Closing Date in the Purchase Agreement. There is no actual closing date given, but the contract lays out two different options for when the deal will close, which the first to take place triggering the closing process. The first possibility is thirty (30) days after the Act 2 Release is issued by the DEP (which won’t be until at least 2023); the second is five (5) years after the lease for the new public works building is signed. This means that if the township signs the lease for the public works building, they take title to the property five years later regardless of whether the environmental cleanup is complete. (Again, why would Cecil Township agree to take the title (and the legal liability that goes with it) to a toxic site that may never be able to be remediated?
Under the Agreement, upon request by Cecil Township, ABB will enter into a lease for the township to build a public works facility on the property. The language of the contract says they can sign the lease before the Closing Date, meaning Cecil Township could construct the building as soon as realistically possible. This would be a significant additional expense by the township associated with the ABB property. It does not appear that the parties have signed the lease yet, but that has not been confirmed.
As if all of that wasn’t suspect enough, the next portion of the Sales Agreement should be an absolute deal breaker to anyone with even a fraction of a working brain. After the Closing Date, Cecil Township becomes responsible for ongoing groundwater monitoring and reporting to the DEP, while ABB is liable for any environmental claims not covered by the Act 2 Release for twelve (12) years. But after those twelve years are up, then Cecil Township agrees to indemnify ABB and assume all legal liability for all claims of any kind forever.
You have to be an extraordinary kind of idiot to agree to something like this; unfortunately, Cecil Township apparently has just enough extraordinary kinds of idiots in charge to do just that.
In the grand scheme of things, twelve years is nothing, especially when we’re talking about long-term exposure to harmful chemicals that will be dug up and spread around close to a large elementary school. And let’s not forget that there are existing concerns about a developing child cancer cluster in the region whose origins are yet to be confirmed.
To be clear, the language of the Sales Agreement makes Cecil Township solely responsible for any claims of any kind arising from the ABB property from twelve years after the Closing Date until the end of time. Even at 11.5¢ per acre, accepting this level of legal liability for a site with so many known (and presumably more yet to be discovered) environmental problems is an extraordinarily ill-conceived idea.
Toxic Waste Dumps and the Township Supervisors Who Love Them
It would be an unfair characterization to say all five of the Cecil Township Supervisors are monumentally stupid enough to be on board with taking over the ABB property. In the spirit of separating the good guys from the bad guys, let’s take a minute to meet the players involved with the 2017 decision to purchase the property.
At the heart of the push to take over the ABB property is longtime township supervisor Tom Casciola. His unyielding support has led to questions from residents whether his motivations are pure, which is a polite way of questioning whether there may be a kickback of some sort involved. While there is no clear evidence of any wrongdoing, sources within the township have confirmed that Casciola has taken it upon himself to shepherd the project through, including arranging for certain township supervisors to be taken out to dinner with the engineering firm to “educate them” about why the project should move forward- as recently as this week.
Casciola has a long history of backroom dealing with private industry, notably Marcellus Shale natural gas companies seeking to conduct oil and gas operations in the township. He has been publicly questioned on many occasions for clear attempts to conduct township business outside the boundaries of the Pennsylvania Sunshine Law, which requires that township business be done in public meetings and not behind closed doors.
Bad Evil Guy, All-Around Horrible Human Being
The second “yes” vote at the November 6, 2017 meeting came from supervisor Elizabeth Cowden, who was literally voted out of office the very next day. Cowden has a long, sordid history of manipulating government business for her own personal gain by any means possible. Although no longer in office, Elizabeth Cowden has been a clear architect of the dysfunctional chaos that has turned Cecil Township from an award-winning community for raising families to the municipal government equivalent of a dumpster fire.
Bad Guy, Also Tucks Hockey Jersey Into Jeans
The third “yes” vote came from current Board Chairman Eric Sivavec, who is the clear puppet of fellow board member Tom Casciola. This photo tells you all you need to know about Sivavec- I mean honestly, who wears a hockey jersey tucked into jeans? How can anyone trust the judgment of someone willing to leave the house looking that ridiculous? Kidding aside (even though I’m not kidding), Sivavec seems hell-bent on moving forward with the ABB purchase.
After sending out a message telling his fellow supervisors not to talk to the media, he did an interview with WPXI defending the purchase. And yes, he wore the hockey jersey tucked into his jeans for the interview. (Sorry, as a hockey fan I can’t let that go.)
In the WPXI interview, Sivavec raised the possibility that the township may also build a police station or a fire station on the property because nothing screams “public safety” like building public buildings on a toxic waste dump. Now, if Sivavec wanted to build an oncology unit, that would at least make sense. Anyhow, one more look at that tucked-in hockey jersey, from a photo taken on a different day from the first one.
The first “no” vote came from Supervisor Cindy Fisher, who has shown actual grown-up common sense by opposing the potential ABB purchase from the beginning. Fisher apparently made so much sense that fellow supervisor Tom Casciola has not only stopped speaking to her but also refuses to be in the same room with her outside of monthly supervisor meetings.
The second “no” vote back in 2017 came from Supervisor Frank Egizio, who is from the Muse portion of Cecil Township. Although he has voted with Casciola and Sivavec on controversial issues in the past and may have supported the purchase at one point, Egizio recently made it clear to his fellow township supervisors he opposes to the ABB deal. Despite intense lobbying efforts by Casciola and Sivavec, Frank Egizio appears to be firmly on the side of most township residents who oppose moving forward with the ABB property purchase.
Good Guy, Seen Some Stuff, Not Taking Anyone’s Bullshit
The final player in this equation is Supervisor Ron Fleeher, who defeated Elizabeth Cowden the day after she voted to approve the ABB purchase agreement. He has been perhaps the most outspoken opponent of the deal, mainly because he worked on the ABB site in the past. Fleeher has confirmed that there are additional drums of toxic waste buried in the abandoned mineshaft and possibly other sections of the property. “I have seen it with my own eyes,” Fleeher told Goose in the Gallows. Fleeher has also been an outspoken critic of Sivavec and Casciola, calling them out for their tactics and the penchant for backroom dealing.
Fleeher has confirmed that there are additional drums of toxic waste buried in the abandoned mineshaft and possibly other sections of the property. “I have seen it with my own eyes.”
So Where Do We Go From Here?
With Supervisors Fisher, Fleeher, and Egizio firmly opposed to moving forward with the ABB purchase, the question becomes: can they can stop the deal, or is it too late?
It depends. The terms of the Purchase Agreement lay out several scenarios:
1. ABB Gets Cited by DEP for Additional Environmental Problems
If a government agency (presumably the DEP) should issue a Notice of Violation for any additional environmental issues outside of what is already known and included in the Act 2 Plan, then Cecil Township can end the deal AND get reimbursed by ABB for all expenses incurred, which would include the $450,000 the township agreed to spend.
But there’s a problem. One month after the township voted to approve the Purchase Agreement, they also signed a Consent Order with the DEP. The Order, which was also signed by ABB and passed by the same 3-2 vote as the Purchase Agreement, not only orders Cecil Township to pursue the Act 2 Plan but also includes a covenant not to sue the Township while the remediation takes place. And since the DEP is the primary entity responsible for issuing violation notices, the odds of them doing so are slim to none because they know that doing so would let Cecil Township off the hook.
2. Cecil Township Fails to Complete the Act 2 Plan
The only way Cecil Township can default under the Consent Order is by failing to complete the Act 2 remediation, at which point the DEP can sue the township for specific performance, meaning they can force Cecil to move forward no matter what. Again, the DEP will not let the township off the hook after sucking them into this mess.
If Cecil Township cannot get an Act 2 Release from the DEP for any reason, the Board of Supervisors may end the Agreement, and ABB must reimburse the township for all expenses incurred. But there is a catch. When the township enters into a lease with ABB to build the public works building, which can take place at any time, this termination provision becomes void. If Cecil Township does not follow through with the Act 2 process, they could easily be in violation of the DEP Consent Order and subject to enforcement litigation by the agency.
3. Cecil Township Stops Paying for Stuff
The township could stop paying its remaining obligation for the ABB remediation, estimated to be an additional $150,000 of taxpayer money. But if they do, then ABB has the right to sue (as discussed below) immediately.
In the event of any default by the township, ABB has two options. The first is that they can terminate the Purchase Agreement and keep the property with any improvements made by Cecil Township. They would also have no obligation to reimburse the township for any of the costs, which means the taxpayers would have to eat the $450,000.
ABB’s second option if Cecil Township defaults is to sue for specific enforcement, punitive damages, and attorney’s fees. Should ABB play hardball and claim the township is acting in bad faith, the resulting litigation could be a financial catastrophe for taxpayers.
The problem here is not just the Purchase Agreement; it’s the subsequent Consent Order with the DEP. Why in the world anyone would knowingly and willingly accept such a historically contaminated site with such a high level of legal liability when they weren’t obligated to do so in the first place?
The stupidity involved in this decision is almost hard to fathom. If Cecil Township wanted the property so badly, why not tell ABB to clean it up themselves and then agree to buy it for $450,000 after receiving an Act 2 Release from the DEP? Interjecting the township into such an expensive, open-ended proposition when it need not have done so makes no sense.
Supervisor Sivavec claims the project would remove an environmental problem in the township which sounds good in theory. But because the township’s plans to dig up and spread around contaminated soil, which would then impact the surrounding groundwater. So… not so much with the environmental benefit.
Based on the terms of the Purchase Agreement, there appears to be one viable option for Cecil Township to get out of the contract and get the taxpayers’ money reimbursed by ABB. Here it is:
The relevant language of Section 4.4.5 of the Purchase Agreement states:
All notices issued by a governmental authority of violations of law, ordinances, order or other governmental requirements against or affecting the property on the Closing Date shall be complied with by Seller and the Property shall be conveyed free of same except that Buyer shall be solely responsible for any violations resulting from Buyer’s construction, use or occupancy of the road and New Building… By executing this Agreement, Seller authorizes Buyer to make necessary searches therefor and, if requested by Buyer (or if required by a governmental authority), agrees to furnish Buyer with written authorization to make such searches. If Seller (ABB) shall receive any notice of Violation during the term of this Agreement, it shall furnish a true copy of same to Buyer promptly after receipt by Seller. If any such Violation shall in Buyer’s opinion, reasonably exercised, or in the opinion of Buyer’s counsel, constitute an impediment to Buyer’s ownership of the Property, Seller promptly after written request by Buyer shall perform all such work as shall be required to cure and shall cause the Violation to be removed. In the event such Violation cannot be removed then Buyer shall have the right to terminate this Agreement and the Deposit with all interest accrued thereon shall be returned to Buyer and Seller shall immediately thereafter reimburse Buyer for all of its documented out-of-pocket costs and expenses incurred in furtherance of this Agreement.Cecil Township/ABB Inc. Purchase Agreement, Section 4.4.5
Okay, lots to unpack here, but it’s straightforward. The Agreement entitles Cecil Township to search the property before Closing for additional undisclosed environmental problems. If they find any, and a violation is issued to ABB as a result, then ABB must remedy the problems before the deal can move forward; if ABB can’t fix them, then the township gets to terminate the Agreement and get their $450,000 back.
As previously mentioned, notices of violation usually come from the DEP, which is hardly a certainty given how royally the DEP screwed the Township with the Consent Order.
But, and here’s the key, the township now knows of additional environmental problems in the form of Ron Fleeher’s firsthand knowledge of drums containing hazardous waste buried in the abandoned mineshaft on the property. All the township needs to do is prove that they exist. Then, they need a governmental authority to issue notice of violation to ABB.
While the hope is that exposing the additional problems to the DEP would be sufficient for them to do the right thing and issue a notice of violation, there is a way around DEP’s general incompetence and lack of willingness to actually protect the environment. Note the language- DEP doesn‘t have to be the one to issue the notice of violation- it can come from any “governmental authority.” If only Cecil Township knew where to find a governmental authority…
Oh, wait! Cecil Township IS a governmental authority! That means they can send their own zoning and code enforcement people out to the property and issue a notice of violation to ABB on their own. If having a pet duck violates a township ordinance, you’d have to think unearthing a bunch of hazardous waste dumped in an abandoned mineshaft next to a school would have to be a thing, right?
Another area that would likely justify a notice of violation is the contaminated groundwater running off of the property to the south, as described in the environmental reports attached to the Purchase Agreement. The report explicitly states there is no groundwater monitoring in place there, which means there is no way to know the extent of the impact on the air, soil, and groundwater surrounding the ABB property. Based on the chemicals in the contaminated water running off of the property (remember that big nasty list from earlier?), the remediation efforts could easily add millions of dollars to the cost of the project.
And to be clear, this strategy is not about the township finding a loophole to get out of the deal as much as it is about due diligence. The Purchase Agreement makes it clear that after 12 years, Cecil Township assumes all liability of any kind for any problem stemming from the ABB property, so finding out the extent of that liability is hardly acting in bad faith.
And while we’re talking about legal liability, what about the township employees expected to go to work in the new public works building every day? Because the new building will be a place of business, OSHA would have jurisdiction for health and safety issues, and they’re more proactive than the collection of rodeo clowns asleep at the switch at DEP. It’s easy to see Cecil Township engaging just enough of a remediation effort to get an Act 2 Release from the DEP, only to have OSHA shutter the completed building based on complaints by employees who have the nerve to not want cancer as a fringe benefit of working on a toxic waste dump.
And if all of that weren’t enough, a cancer cluster targeting children with a rare form of cancer called Ewings Sarcoma has recently emerged in a portion of Washington County that includes the ABB property.
So barring some remarkable political leadership and some serious maneuvering, Cecil Township could very well go from being known as “The Best Place to Raise a Family” to “The Children’s Cancer Capital of America” in less than a decade.
So what happens now? At this point, no one knows. But whatever the eventual outcome, hopefully, people are finally paying attention.
In November 2017, Cecil Township Supervisors Tom Casciola, Eric Sivavec, and Elizabeth Cowden entered into a Purchase Agreement with ABB to purchase 80 acres of property with a long history of toxic problems for $10, but also agreed to spend $450,000 (and possibly more) to remediate it, build a new public works building on it, and eventually assume total liability for the site. The next month, the same three supervisors voted to sign off on a Consent Decree with the PA DEP that imposes a duty on Cecil Township to clean up the site with no clear benefit in return.
Supervisor Ron Fleeher (who replaced Cowden) has firsthand knowledge of previously undisclosed drums of hazardous waste buried in the abandoned mineshaft on the property. Documents also show an unmonitored water runoff filled with known cancer-causing chemicals that could have a potentially serious impact on the community of Muse, including a brand-new elementary school right next to the property. The effect of this runoff could be substantial, with far-ranging consequences that nobody took into account as part of the planned remediation of the property.
Supervisors Fleeher, Cindy Fisher, and Frank Egizio are all opposed to the deal, while Tom Casciola and Eric Sivavec are doing everything in their power to push it forward, presumably aided by the engineering and environmental consulting firms who stand to make hundreds of thousands of dollars from the deal.
The combination of the Purchase Agreement and the DEP Consent Order put the township in a precarious legal position to terminate the Agreement. But if the previously undisclosed environmental problems are exposed and investigated, and result in a notice of violation sent to ABB, then the township can end the Agreement and get the $450,000 in taxpayer money back unless ABB can fully remediate all problems stemming from the property. Given the potential scope of the contamination, complete remediation would range from problematic to impossible.