Living On  Toxic Land

Published  Sunday, August 3, 2003.


HEADLINE: Disclosure of toxins stops at the lot;
In Pa., house sellers don't have to inform buyers of nearby contamination.

BYLINE: Dawn Fallik INQUIRER STAFF WRITER

BODY:
Cheryl Buteaux grew up in Toms River, N.J., a community infamous for its chemical dump and abnormally high rates of childhood cancers. Moving to Pennsylvania years later, she found what she thought was a safe haven.

Heather Valley seemed perfect, a new development rimmed by farmland in Richland Township, Bucks County. In December 2000, Cheryl and Norman Buteaux, with three children ages 1, 4, and 6, settled into a $164,000 four-bedroom home.

But the pastoral landscape held a surprise.

At the Watson-Johnson farm next door, the U.S. Environmental Protection Agency had already spent a year investigating a 32-acre landfill in which 3,200 tons of lead, PCBs, and other chemicals had been illicitly buried in the 1960s.

No one - not the developer, the real estate agent or the appraiser - told the family of the toxic cache about one-quarter mile from their home. Legally, no one had to.

Under a Pennsylvania law that the Buteauxs and others hope to change, sellers are not required to disclose contamination unless it is on the lot itself. In a state where the EPA has identified 567 hazardous-materials sites - 271 in Philadelphia, Montgomery, Delaware, Bucks and Chester Counties alone - the onus is on the buyer to find any hazards lurking beyond the property line.

Radon, termites, leaky roofs - "there are certain things you need to divulge" when selling a house, said Rodd Bender, a Philadelphia lawyer who specializes in environmental law. "But the statute does not clearly require Joe Homeowner to know what's going on next door."

Word of the EPA's find at the Watson-Johnson farm trickled through Heather Valley in the spring of 2001. That September, the dump was put on the Superfund National Priority List of the "most serious, uncontrolled or abandoned hazardous waste sites" in the nation.

By then, the Buteauxs had fled their home for an apartment in Quakertown. With 40 other Heather Valley families, they are suing the developer, the real estate agent, and several appraisers in Bucks County Court, alleging fraud. The lawsuit contends that the defendants knew of the toxic dump and not only failed to inform prospective buyers but also lied, variously describing the tract as a "nature preserve," a landfill for "farm trash," and a site for more houses.

The homeowners want compensation for lost property value and future medical monitoring, said attorney Thomas J. Wehner, who is representing them. They also are "looking to make the law crystal clear - that if there's something there, you have to disclose it," he said.

An attorney for the DePaul Group, the Blue Bell-based developer, declined to comment on the pending suit. However, DePaul's manager of risk development, Dave Hershey, said Heather Valley homeowners needn't worry.

Just because a piece of land is listed as contaminated, "doesn't necessarily mean that it's bad," Hershey said.

Asked whether he would live next to one of the worst hazardous-material sites in the country, Hershey replied: "I think my personal opinions are irrelevant here."

Ironically, if the Buteauxs had stayed in New Jersey to buy a new home, the developer would have been required to direct them to a list of hazardous-materials sites in their township.

That statute was born of a state Supreme Court ruling in a 1995 class-action lawsuit brought by 195 residents of a Voorhees development. When they purchased their homes, they were not told that a toxic waste dump, the 57-acre Buzby landfill, was a half-mile away.

The homeowners won $2.95 million from the developer and two real estate agents. They also inspired a reformed property-disclosure law that is viewed nationwide as pioneering.

The disclosure list, which must be made available to New Jersey buyers, includes landfills, wastewater treatment plants, and Superfund sites. "If toxic materials were found, and the state or the EPA was doing an investigation, that would be added to the list," said Fred Mumford, a spokesman for the New Jersey Department of Environmental Protection.

Although New Jersey's law applies specifically to new homes, state real estate regulations have gone a step further by requiring licensed agents to also refer buyers of older homes to the list. Failure to do so could result in a fine or even suspension of the agent's license.

"The days of 'buyer beware' are insufficient," said Dawn Rafferty, executive director of the New Jersey Real Estate Commission. "We have to do everything we can."

Not so in Pennsylvania.

Enacted in 1996, the Real Estate Seller Disclosure Law lists 16 categories of problems that must be brought to the buyer's attention, from a flooding cellar to old plumbing.

Item 14 is "Hazardous Substances," covering chemicals and radon specifically on the property. There is a mention of "environmental concerns that might impact upon the property" - a reference too vague to be useful to buyers, say lawyers such as Bender and Wehner.

There has been no move to strengthen the disclosure law, said David Reed, executive vice president of the Pennsylvania Realtors Association.

"It's not an issue that's in the forefront here," he said.

A house is the largest purchase most people make in their lifetimes, but few take the time to give their new environs more than a cursory look. Developers do, of course, routinely commissioning a "Phase 1" assessment from an environmental engineer. The review investigates a property's history and environmental conditions in the vicinity.

"I'd suggest to anybody buying a piece of property to do a Phase 1," said Bruce Beitler, a regional manager for the Pennsylvania DEP.

"You'll find out everything there is in the public record," he said. "It's risky to buy a piece of property without a Phase 1."

Developers argue that the environmental analyses are likely to give home buyers a bad case of information overload. Besides, some contend, people don't really care.

"There's always that joke about people reading every word on the instructions for their VCR more carefully than they read about a house purchase," said Mike Nolen, a Montgomery County developer.

Home buyers "wouldn't know what to do with [a Phase 1]. It's overburdening the consumer."

*

Saju and Molly Rampuram say it is a burden they would have willingly borne.

Six years ago, the couple moved to Colmar, Montgomery County, drawn by a stone house that they loved, good schools, and the proximity to the shops of Montgomery Township.

But a year later, they learned they had an unwelcome neighbor: a plume of trichloroethylene, a metal degreaser. Currently in the process of being removed, the plume came from the former American Electric Laboratories (now BAE Systems) less than one-quarter mile away. The site landed on the Superfund list in March 1989, eight years before the Rampurams arrived.

"The township says it's safe because we're on public water," said Saju Rampuram, who wonders what might happen if they ever try to sell. "But we would have liked to know beforehand, so we could have looked at it on our own."

Similar worries plague Paulette Webb, one of the plaintiffs in the Heather Valley lawsuit.

There are no fences or "Keep Out" signs to separate the Watson-Johnson farm from the development of 38 single-family homes and 74 duplexes. But Webb always knows what's out there. Everyone does.

"It's a nice community and a great house," she said, "but we have this hanging over our heads."

She, husband Walter, and their two young children moved in around Christmas 2000, the same time as the Buteauxs. The Webbs' three-bedroom home abuts the Watson-Johnson farm, with a wide view of the wooded landscape from her dining room window. Some home buyers paid a "lot premium" for houses offering such vistas, said attorney Wehner.

Those trees cover the place where the W.R. Grace & Co. dumped pigment, paint and resin from its Quakertown chemical plant from 1965 to 1968.

There was no mention of the continuing EPA investigation in the appraisals of the Webb and Buteaux homes in November 2000.

"The neighborhood appears to be in demand," Natasha Phifer, a North American Mortgage Co. appraiser, wrote of the Buteaux house. "There are no adverse conditions affecting the subject property or the neighborhood."

Six months earlier, however, another appraiser had evaluated a home four lots away from the Buteauxs'. Donald Reape noted: "At the present time, the EPA is evaluating an adjoining parcel of land to determine if it qualifies as a Superfund site after finding high levels of pollution in underground aquifers."

It is unclear why the information was not included in other appraisals. Phifer declined to comment; Reape did not return phone calls.

The EPA is working on a plan to clean up the toxins; its study should be finished next year. The houses are on a public water system, and as long as the chemicals are at least six inches underground, there is no risk of direct exposure, said Neil Wise, director of the EPA's Office of Site Remediation Enforcement.

Cleanup should not pose undue hazards, he said, because the dirt acts like a sponge, absorbing the chemicals and preventing them from being released into the air.

Wehner says many of his clients are afraid anyway - of building swimming pools, planting gardens, letting their children play in the yards.

Those are no longer Cheryl Buteaux's worries. She waits for the bank to foreclose on her home. The sheriff's sale is Sept. 12. At the least, she says, she hopes the lawsuit will help her recoup the $20,000 she put down on the house.

"I just couldn't stay there," she said.

"If 10 years from now, my kid gets sick, I don't want to look back and say, 'I should've left.' "

Contact staff writer Dawn Fallik at 610-313-8131 or dfallik@phillynews.com.