EPA: ABC Metals not a threat to public health
Meanwhile, Rhoades contempt charge denied

By COURTNEY LAMDIN | Staff Writer
mireporter@mac.com

The Environmental Protection Agency’s latest evaluation ruled out any health hazard at Gil Rhoades’ ABC Metals junkyard.

The January 15 memo determined that there is no need to take “removal action,” a response to “reduce imminent and substantial dangers to human health, welfare or
the environment … due to the release of a hazardous substance,” the EPA Web site said.

The decision was based on two site investigations from October 20 to 21, 2008 and May 18 to 19, 2009 where the EPA collected samples of soil, sediment and surface water. The consultants sampled onsite and from neighboring properties.

EPA’s report acknowledged that there was presence of some metals and organic compounds but “the amount, quantity or concentration released does not warrant a federal response,” it read.

According to Gary Lipson, the on-scene coordinator for the EPA, it was hard to link those chemicals back to the salvage yard, he said.

“We found some chemicals on the surface soil and some on the neighboring properties that we did not find at the salvage yard,” Lipson said. “It’s hard for me to
say that that’s where they came from. I can’t say they did or they didn’t.”

Rhoades property would likely be the origin if there were higher concentrations of chemicals on-site that lessened as one moved away from the yard, “but we did not necessarily see that,” Lipson said.

Lipson has also worked with Rhoades to safely store materials and said Rhoades is following federal rules for storing petroleum products, as his tanks are contained in secondary vaults to prevent leaks.

The EPA report dovetails with a separate groundwater study, conducted by Northfield-based Applied GeoSolutions, LLC, released January 31.

The groundwater report includes results from samples taken at ABC Metals’ three monitoring wells in December 2009.

This study found arsenic in the well closest to Hobbs Pond that is at a level more than four times what is acceptable by the Vermont Groundwater Enforcement Standard for drinking water.

Rhoades’ attorney Tom Walsh said the report showed the source of arsenic may not be the junkyard but from Hobbs Pond, he said.

“Based on the consultant’s conclusion that the pond is influencing the well, then the likely source of arsenic is not the site,” Walsh said.

“Likely” is the key word for Linda Elliot of the Vermont Department of Environmental Conservation Waste Management Division.

“‘Likely’ is a word, but until you further investigate that site, I can’t say it’s a concrete fact that the arsenic is coming from the pond or the stream,” Elliot said. “I can’t say either way.”

Still, Walsh said both these studies could help Rhoades’ case against the state, which seeks to find him liable for releasing hazardous materials to surface water, groundwater and soil.

“This is good information,” Walsh said. “There’s evidence to support that Mr. Rhoades’ operations aren’t resulting in any offsite contamination.”

On November 20, 2009, a superior court judge found Rhoades liable for operating an unlicensed junkyard from July 1, 2001 to August 3, 2007, for operating a solid waste management facility without certification and for improper management of hazardous waste.

Lynn Caldwell, neighbor to ABC Metals and organizer of Milton Citizens Looking for Environmental Action Now, pointed to these other violations, saying that even if there is no contamination, Rhoades still doesn’t have a clean record.

“He still has violated the law for almost a decade by not having a permit from the town or having a license from the state and by having solid waste stored on his junkyard without a permit,” Caldwell said.

Caldwell called ABC Metals an illegitimate business, comparing it to someone driving without an operator’s license or opening up a daycare without a license.

“His is no different,” she said, adding that without a license, Rhoades shouldn’t be operating.

Contempt charge denied

In related news, a Chittenden Superior Court judge recently ruled in Rhoades’ favor to say he was not in contempt for violating a court order, but the state has already filed for reconsideration.

Judge Helen Toor denied a motion that Rhoades knowingly violated a Nov. 20, 2009 preliminary injunction to cease accepting junk, including scrap metal and junked vehicles at a hearing on January 29.

The motion was brought forth after Milton health officer Dave Joachim reported to the state that Rhoades accepted junk on November 28 and 30, 2009.

At his hearing, Rhoades said he did buy $333.40 worth of scrap metal from Stephen Tremblay but that the sale occurred before his attorney told him the stipulations of the injunction.

The order was served via mail to Rhoades’ attorney, Tom Walsh, and was date-stamped “received” at his office on November 30.

“Upon receipt, I called him and said, ‘I have the order; you need to stop,’ and he stopped,” Walsh said. “Until he’s served a copy of it, you don’t know the full implications of the order.”

Rhoades became aware that the judge made a ruling when he viewed the online docket on November 22. It reads, “11/20/09 Order granting plaintiff's motion for preliminary injunction signed and filed herein, copies sent to counsel.”

“He wasn’t aware of its contents,” Walsh said. “Through his investigation, he became aware that the order was going to prevent him from receiving or buying scrap or junk motor vehicles.”

The court ruled that to establish contempt, “clear and convincing evidence” had to be shown, but “absent actual knowledge of the terms of the order, Rhoades cannot be found to have knowingly violated the order.”

However, Rhoades spoke at a Nov. 24 Selectboard meeting during public forum and “reportedly made some statements reflecting his knowledge of the order,” a footnote in the ruling said.

“I’ve been recently issued from the court order not to be able to select or receive scrap, any scrap vehicles, or scrap iron or scrap metals,” Rhoades said to the board. “I’m going to assure you of something – that I’m not going to disappear because my operation does not depend on scrap.”

The state submitted a DVD of this meeting with the motion papers but it was not offered as evidence at the hearing and was not viewed by the court.

Assistant Attorney General Robert McDougall, who represents the state against Rhoades, offered no comment as to why the evidence was not presented.

The state filed a motion for reconsideration Friday, Feb. 12, which said Rhoades did have actual knowledge of the injunction’s contents and is in contempt of court.

The motion included several excerpts from the Jan. 28 contempt hearing testimony.

At one point, McDougall asked Rhoades if he knew about the order and its contents as of November 22, the date Rhoades looked on the online docket.

“Yes, that’s correct,” Rhoades said.

Asked if Rhoades knew the order required him to stop accepting junk, Rhoades said he knew it was a pending order.

“I knew a decision had been made,” he said. “I did not know the moment to which I had to cease and kill my business.”

At another point, McDougall asked Rhoades if his attorney explained to him what service of the order meant during their conversation that was “well before November 28,” according to a footnote.

Rhoades replied, “It says I can’t buy any cars or scrap.”

Asked if he understood the order was served and would require him to stop taking scrap, Rhoades said, “That is correct.”

As of press time, the court has not responded to the state’s motion for reconsideration.

Next steps

In more related news, the parties in State vs. Rhoades went into a court-ordered mediation Wednesday, Feb. 17 to attempt to resolve the remaining issues in the case.

In the state’s view, the four unresolved issues are whether Rhoades is liable for releasing hazardous materials to the environment, for operating an unlicensed junkyard since August 2007 and for cleaning up his site and also whether Rhoades’ wife, Blanche, is liable.

Depending on how mediation progresses, the parties could also discuss remediation and potential civil penalties, McDougall said.

“We’re going into it with good faith and we appreciate the process,” he said.

In addition to McDougall, Rhoades and his attorney, also invited were the state’s Environmental Protection Division chief and a representative from the Agency of Natural Resources, as well as Milton town manager Sandy Miller and town attorney Gregg Wilson.