KAREN BUCKLEY WANTS out. But she can’t go anywhere because she and her husband — along with three other Marlborough families — are stuck in homes that have lost a huge amount of their value because of a gasoline spill from a neighborhood Citgo station three years ago.
The Buckleys and the other families find themselves in legal limbo. They can’t sell their houses because no one wants a home undergoing hazardous waste remediation. They are suing the Citgo station owner, but he’s not required to carry liability insurance, so even if the families prevail in court they are unlikely to receive much compensation. And until they win a court judgment against the Citgo owner, they can’t even tap into a state cleanup program created to help cover the cost of property damage caused by fuel spills.
Stephen Dodge, the executive director of the Massachusetts Petroleum Council, who sits on the board of the cleanup program, said the four Marlborough families have clearly been wronged through no fault of their own. “They deserve some type of compensation,” he said. “The question is, what’s the best method of doing that.”
The Buckleys’ descent into homeowner hell began in April 2012 when gasoline from the Citgo station leaked into a neighbor’s sump pump. Luckily, the fire department arrived in time to prevent an explosion. The Buckleys suspected that their home, 100 yards from the Citgo station, was at risk, too.
But Karen Buckley claims that their concerns went unheeded until weeks later when her husband decided to use the in-ground swimming pool for the first time that year. The retired firefighter went for a swim and emerged from the pool with a gasoline sheen on his body. Family members hosed Buckley down and called the fire department.
The state Department of Environment Protection began running tests to determine the extent of the contamination, and the station owner, Robert Brown, began remediation efforts. According to Karen Buckley, more than 2,000 gallons of gasoline and 3.5 million gallons of gasoline-contaminated water have been removed so far from the yards of the four families.
After a smaller spill earlier this year at the Citgo station, the Department of Environmental Protection barred Brown from continuing to sell gasoline and diesel fuel there—the first time the department has ever taken such an action—in part because state officials did not believe he had the necessary programs to clean up any spills that might occur in the future. His underground storage tanks have been pumped out; the station remains open only for repairs and inspections.
Under current state and federal laws, gas station owners are not required to carry liability insurance for spills at their facilities. But they are required to clean up any spills and can recover most of their costs from the Massachusetts Underground Storage Tank Petroleum Product Cleanup Fund (also known as the 21J fund).
The cleanup program was created in 1991 and the regulations went into effect two years later. Since 1993, roughly 34,200 contaminated sites across Massachusetts have been located and cleaned up. According to the Department of Environmental Protection, approximately 6,500, or about 19 percent, of those spills were from gasoline stations or underground storage tanks.
The maximum reimbursement that any petroleum storage tank owner can receive from the program tops out at $1.5 million. Third parties such as the Buckleys can also receive compensation for property damage and personal injuries from the underground storage tank program, but only if they first win a court judgment against the gas station owner.
The Buckleys sued Brown three years ago, but so far no judgment has been rendered. The Buckleys say the gas spill ruined their in-ground pool, which might qualify for reimbursement as property damage if they can prevail in court.
Karen Buckley said that she and her husband have not moved because they still have a mortgage. Their ranch home, appraised at $325,000 before the spill, according to Buckley, has lost most of its value. Even if a potential buyer stepped forward, she said, banks are not willing to finance the purchase of a contaminated property. State environmental officials say the cleanup could go on for another three years.
The Buckleys want the state to reimburse them for the pre-spill value of their home. They have also shelled out for attorney fees and personal expenses. “We’ve spent tens of thousands of [dollars of] our retirement money trying to get something recouped,” said Buckley.
Marlborough officials can’t offer much help to the families beyond convening local residents, state environmental officials, and lawmakers to discuss the situation. “The rules are pretty frustrating,” said Marlborough Mayor Arthur Vigeant.
Lawmakers, who heard testimony from the Marlborough families at a recent hearing, are having difficulty crafting a solution that makes the families whole. The House and Senate both recently passed spending bills that would increase the maximum payouts to fuel tank owners from $1.5 million to $2.5 million. Raising this cap would help provide payments to the Buckleys if they are able to win their lawsuit, but only for property damage, not for the declining value of their home.
State lawmakers have proposed two major changes that would provide greater assistance to the Marlborough homeowners. A bill filed by Rep. Danielle Gregoire, a Marlborough Democrat, would allow abutters to collect monies from the program for emotional distress, property value losses, attorneys’ fees, and other expenses connected to cleaning up contaminated property. A second bill would require gas station owners to carry $10 million in liability insurance.
Some form of the measure in the spending bill is likely to pass, but the fate of the other bills is far from certain. In the meantime, the Buckleys sit at home and wait. “All we want to do is move,” said Karen Buckley.
Photographs by Karen Buckley
How the underground storage tank petroleum cleanup program works:
The petroleum cleanup program provides individual underground storage tank owners with partial reimbursement needed to cleanup diesel and gasoline spills.
Although the cleanup program is technically known as a “fund,” then-Gov. Mitt Romney dissolved the dedicated fund in 2003 and transferred the monies into the state’s general fund. Since then, the Legislature has made specific appropriations from the general fund to pay for cleanups at gas stations and other private facilities.
Gas station owners and others who operate underground storage tank facilities also pay an annual $250 fee for each underground storage tank they own. This storage tank fee goes into the state’s general fund.
The state levies a 2.5-cent fee on each gallon of gas or diesel delivered to a qualified gas station or other private facility. While this fee was used to finance the program directly, under the 2013 state Transportation Finance Act, this per-gallon fee now goes directly into the Commonwealth Transportation Fund administered by the Massachusetts Department of Transportation. In fiscal 2015, about $73 million in gas tax delivery fees went into this transportation fund for transportation projects or operations.
State lawmakers budgeted $13 million for program reimbursements in fiscal 2015. In fiscal 2016, the appropriation was $10 million, the lowest ever. The administrative review board that oversees the program projects a $14 million deficit by the end of the fiscal year.
The program has chalked up deficits for more than a decade and relies on supplemental budget appropriations or the following year’s annual budget to pay outstanding claims.
To be eligible for cleanup money if a gasoline or diesel spill occurs, the gas station or other private facility must have a special compliance certificate, report the spill to state environmental protection officials, and have any claims approved by the program’s review board. The facility must pay for cleanup costs up front and then apply for reimbursement.