VERGENNES — The owners of the prominent former Haviland Shade Roller Mill building on the Vergennes falls are suing former owner Green Mountain Power Corp. in U.S. District Court in Burlington for allegedly “fraudulent misrepresentations,” claiming that GMP knew prior to a 2004 sale that the building and site were contaminated by poly-chlorinated byphenyls (PCBs) and other toxic materials.
Shenandoah LLC — a company that includes Ferrisburgh resident David Shlansky, also owner of the nearby Grist Mill — bought the 16,000-square-foot building, plus an 11,000-square-foot annex across Canal Street from it, from GMP in 2004, paying $150,000. Both buildings have been empty for almost 20 years.
In March 2004, the Vergennes DRB approved a plan for 21 condos and a shop between the mill and a new building to replace the annex. Shenandoah hopes to proceed with those plans if contaminants it said experts found there during 2007 and 2008 inspections can be cleaned up.
Shenandoah is seeking a jury trial for a civil suit that if successful would require GMP to fund removal and replacement of contaminated building elements and remediation of site contamination, plus pay punitive damages and attorneys’ fees.
In its April 5 federal court filing Shenandoah alleged, “GMP was aware that there was one or more spill, release or unauthorized disposal of hazardous or toxic materials due to transformers (which contain PCBs) or other materials that it stored at the Shade Roller Mill prior to and during its dealings with Shlansky in 2003 and 2004.”
The filing also notes that GMP leased the mill to Goodrich Corp. (then Simmonds Precision), and Goodrich “used jet fuel, solvents, and, potentially, mercury, in its operations in the Shade Roller Mill … and GMP was aware that there was one or more spill, release or unauthorized disposal” of toxic materials before the sale.
Two letters to Shenandoah from GMP attorney R. Jeffrey Behm are included as exhibits in Shenandoah’s filing. On March 4, Behm wrote that Shenandoah had the right to inspect prior to the purchase, and failed to exercise it:
“As Shenandoah knew when it signed the June 23, 2003 Purchase and Sale contract with GMP … the buildings located there were old, and there was a possibility that they had been built with construction materials that contained asbestos, lead paint or other hazardous materials. Accordingly, the contract gave Shenandoah a right to conduct pre-sale inspections … Shenandoah had a right to terminate the P&S Contract if the inspections were unsatisfactory.”
Shlansky alleges in the filing that a “GMP Facilities Manager” assured him in a series of meetings the mill was used only for “dry storage of non-hazardous materials,” and that an investigation by a “competent, qualified environmental site assessment firm” had found only some asbestos pipe wrapping that GMP had already removed.
Shlansky said in the filing that “based on GMP’s representations,” which the lawsuit calls either fraudulent or negligent, that he waived “his right to conduct his own environmental inspection.”
Behm also addressed on March 4 Shlansky’s contention that he was told by a GMP employee that an environmental assessment had been performed:
“Although these vague allegations appear inconsistent with the express language of the P&S Contract, GMP is willing to make inquiry into the issue if you provide it with the statements’ content, their maker and their dates. In order to be clear, GMP has no knowledge of … the performance of an environmental inspection or assessment of the Shade Roller Mill during the time it owned that property.”
Shenandoah’s filing also asserted that the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) makes GMP the “responsible party” for the cleanup.
Again, Behm differed in his March 4 letter, writing that is was “preposterous for Shenandoah to request that GMP acknowledge responsibility to replace building components at the Shade Roller Mill.”
Shenandoah’s CERCLA claim, he wrote, “was fundamentally incorrect and invalid. Buildings and the materials used to construct them are generally not subject to CERCLA.”
In that letter, Behm also stated, “your Phase II Environmental Assessment does not suggest that there has been a release at the Shade Roller Mill or establish the presence of significant levels of contamination there.”
Last week, the parties involved added little to the written record.
On Thursday, GMP spokesperson Dottie Schnorr said company officials would decline to discuss the lawsuit at this point because they had not had time to study it.
“We received notice on Monday, and we think it’s important to fully evaluate his complaint before we comment on any details,” Schnorr said.
Shlansky, an attorney, declined to discuss the lawsuit last week. He said he did not want to comment because of his professional status even though he is not working as an attorney on the lawsuit.
Andy Kirkaldy is at [email protected].