RUBIN AND RUDMAN LLP COUNSELLORS AT LAW 50 ROWES WHARF • , 02110-3319 TELEPHONE: (6i7)330-7000 • FACSIMILE: (617)4-39-9556 • EMAIL: [email protected]

Margaret Van Deusen Direct Dial: (617) 330-7154 E-mail: [email protected]

June 26, 2000

BY MESSENGER

Richard Haworth United States Environmental Protection Agency Site Evaluation and Response Section II 1 Congress Street Suite 1100 Mail Code HBR Boston, Massachusetts 02114-2023

Re: EPA Notice Letter, Site, East Bridgewater, MA

Dear Mr. Haworth:

This firm is counsel to the Massachusetts Bay Transportation Authority ("MBTA") with respect to the above matter. By letter dated June 5, 2000, the United States Environmental Protection Agency ("EPA") notified the MBTA of its potential liability regarding the Old Colony Railroad Site in East Bridgewater, MA ("Site") pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a). The letter also informed the MBTA that EPA plans to conduct immediate removal activities involving installation of a perimeter fence, elimination of direct contact with contaminated soils and prevention of off-site migration via soil transport. EPA is asking the MBTA to perform or to finance these activities. Pursuant to conversations with Marcia Lamel, Senior Enforcement Counsel, EPA, the MBTA was given until today to respond to EPA's letter.

As discussed below, even though the MBTA does not believe that it is a responsible party at this Site, it is willing to participate in fencing the perimeter of the Site and posting signage. The MBTA is also willing to discuss with EPA covering "hot spots" of contaminated soil on the Site with some sort of synthetic cover. If other parties, who were notified by EPA of their potential liability at this Site, have agreed to participate in these actions, the MBTA would be willing to work with them or to pay an equitable share of the cost. If, on the other hand, other responsible parties have informed EPA that they are unwilling to perform any actions at the Site, the MBTA would still be willing to enter into an arrangement with EPA concerning the above actions.

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Richard Haworth June 26, 2000 Page 2

However, the MBTA does not have a fencing contractor available to it. Because the fencing would need to be competitively bid, an invitation to bid would have to be developed by the MBTA and the work advertised prior to the award of the bid, all of which could take several months. Therefore, it probably makes more sense for the MBTA to pay for the installation of the fence by EPA's own contractor and the placement of no trespassing signs around the perimeter.

It is our understanding, based on our telephone conversation on June 14, 2000, that EPA is seeking the installation of a six-foot high fence with three gates around the Site. We also understand that EPA's estimate for the fence and the gates is roughly $15,000.

While the MBTA is willing to pay for, or to install the perimeter fencing and signage, and to discuss covering portions of the Site's soil, it does not believe that it is a potentially responsible party subject to liability under CERCLA § 107(a). The MBTA acquired the rail line, which is located between two contaminated sites that have been designated as the "Precise Engineering" and the "Eastern States Steel" sites by the Massachusetts Department of Environmental Protection ("DEP") at 36 Cook Street and 24 West Union Street in East Bridgewater, respectively. Although DEP has issued Notices of Responsibility ("NOR") pursuant to the Massachusetts Oil and Hazardous Material Release and Response Act, G.L. c. 2IE, to the owners/operators of those sites, it has never issued an NOR to the MBTA for either of these sites. Indeed, the MBTA was first notified of its potential liability under CERCLA in EPA's June 5th letter.

The rail line, known as the East Bridgewater Secondary, and identified as Line Code 4191 ("Line Code 4191"), begins at Westdale at the easterly right of way line of the Middleboro Branch and extends approximately 1.96 miles, ending approximately 1000 feet north of North Central Street in East Bridgewater. The MBTA took this line pursuant to Order of Taking No. 482, dated June 27, 1996, and filed in the Plymouth County Registry of Deeds on August 20, 1996, Book 14597, Page 286. A copy of the Order of Taking is attached hereto at Tab 1.

The MBTA's taking of this line and others by eminent domain was deemed "necessary for the purpose of providing and extending mass transportation facilities for public use in said

Commonwealth and for the purpose of performing such other work as may be necessary in connection therewith ..." The taking was made in furtherance of the MBTA's legal mandate to provide mass transportation services and pursuant to the power granted to the MBTA under G.L. c. 161A, § 3(o), the provisions of G.L. c. 79 and Chapter 33, Section 47 of the Acts of 1991.1

1 A copy of Chapter 33, Section 47 of the Acts of 1991 is attached hereto at Tab 2.

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Richard Haworth June 26, 2000 Page 3

While the MBTA's investigation of this right of way is still preliminary, it believes that Line Code 4191 was owned by the Perm Central Transportation Company ("Penn Central") until 1982, when it was transferred to the Executive Office of Transportation and Construction ("EOTC"). Prior to Penn Central's ownership, this segment was apparently owned by the New York, New Haven & Hartford Railroad ("N.Y.N.H. & H"), which was forced to transfer its assets to Penn Central in 1968. The MBTA took Line Code 4191 by eminent domain as part of EOTC's transfer of certain rights of way to the MBTA for the rehabilitation of the Old Colony rail line.

The MBTA has never operated rail service on Line Code 4191 and it believes this track was abandoned per order of the Interstate Commerce Commission on July 1, 1938.2 It has no knowledge with respect to the pile of contaminated soil adjacent to the tracks on the Precise Engineering Site that is designated "Soil Pile 1" in the Phase I and II reports of SEA Consultants, Inc. ("SEA"), nor does it have any knowledge concerning the source of arsenic, lead and PCB contamination on the Eastern States Steel property. The MBTA has no information at this point in time that trains or equipment containing PCBs were ever used on this track so as to be a possible source of the PCB contamination on the Site. We note, however, that there were, and may still be, electrical transformers on the Precise Engineering site, which because of their age may contain PCBs. Thus, the MBTA does not believe that it is an owner subject to liability pursuant to CERCLA § 107(a).

Even if the rail line was ultimately determined to be the source of some of the contamination at the Precise Engineering and Eastern States Steel sites, this contamination would have been caused by an entity wholly unrelated to the MBTA. The MBTA was never involved in the disposal of hazardous substances in this area, nor was it aware of the contamination until it received the Roy F. Weston Preliminary Assessment/Site Investigation Report, dated April 2000.

Pursuant to CERCLA § 101(20)(D), the term "owner or operator" does not include a unit of State government that "acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government involuntarily acquires title by virtue of its function as sovereign." EPA has interpreted the word "involuntary" in both sections 101(20)(D) and 101(35)(A)(ii) of CERCLA to refer to the same types of acquisitions.3 Here, where the MBTA acquired the property by eminent domain in conjunction

2 If the N.Y.N.H. & H. did not own the line in fee simple, but rather had an easement only, then the property would have reverted to the previous owner as a consequence of the abandonment and the subsequent transfers and the taking by the MBTA may well be void.

Based on EPA's comments to the CERCLA Lender Liability Rule, it appears that EPA considers acquisition by eminent domain to be "involuntary." Moreover, section 101(35)(A)(ii) specifically provides for acquisition "through the exercise of eminent domain authority by purchase or condemnation."

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Richard Haworth June 26, 2000 Page 4

with the rehabilitation of the Old Colony line, it does not believe that it is an "owner or operator" with liability pursuant to CERCLA § 107(a).

In order to qualify for the section 101(20)(D) exemption, which operates as an exclusion from liability under CERCLA § 107(a), the governmental entity must neither have caused, nor contributed to, the release of hazardous substances. Here, it is clear that the MBTA neither caused nor contributed to the release of a hazardous substance from the facility.

Finally, even assuming, arguendo, that the MBTA was considered to be an owner or operator, subsection 107(b) states that there shall be no liability under subsection (a) for a person

otherwise liable who can establish one of the enumerated defenses. The MBTA falls squarely within the "third-party" and "innocent landowner" defenses pursuant to subsection 107(b)(3) and CERCLA § 101(35)(A).4

We would appreciate it if you would call us to discuss the issues raised in this letter once you have had a chance to review it.

Michael TC. Crossen Margaret Van Deusen

Enc

cc: Andrew Brennan, MBTA Marcia Lamel, EPA

4 The MBTA does not waive and expressly reserves all rights and defenses available to it.

418663 1 un 08 00 11:56a RERL ESTRTE ACQUISITION (617] 222-1662 p.2

oy I L591PG286 83953 Received & Recorded PLYMOUTH COUNTY RE5ISTRY OF DEEDS MASSACHUSETTS BAY TRANSPORTATION AUTHORITY ^ ftUG 19% 01:57PT _ JOHN D.RIORDAN ORDER OF TAKING NO. 4S2 REGISTER PLYMOUTH AND NORFOLK gk 14597 Pg 286 COUNTIES

WHEREAS The Board of Directors of the Massachusetts Bay Transportation Authority (•MBT™«c and corporate and a Ipolihcal ^ Massachusetts established by General Laws,'Ch^f. ? ^ bUc in said Commonwealth of providing and extending mass transpo on necessary in connection therewith, and for the purpose of VZ Ch^7lA 7£on 3 (o). and m under the power panted to the ^ G^e^^ Snter^ and Section 47 of the Acts of

•»- -d" -tad Plymouth, Barnstable and Bristol Counties in said Commonwealth.

AND WHEREAS the said Board deems it necessary for such purposesjo take a fee l» ^r^sTmlid and railroad lines located in Plymouth and Norfolk Counties together with ail the appurtenances and rights therein and described as follows and excepting therefrom any easements and agreements of record:

ALL THAT LINE of railroad being a portion of the MiddleboroBrancfa m PLYMOUTH COUNTY (now known as the Braintree Secondary), i en e as ctn^munVatme County Line between die City of Taunton Bnsml County. Massachusetts and Town of Lakeville, Plymouth County, at approximately mile at North Precinct Street in Lakeville and extending in a general easterly direction passing through North Lakeville and the Town Line of Lakeville and Middleboro and through Middleboro in a general northerly and northwesterly direcoon and passing toouS the Town Lin. between die Town of Middleboro and Town of Bndgewa e md still extending northwesterly through Stanley and the Town Lme between B"d«e™*e^d Town of West Bridgewater and passing through the Town Line between Bndgewater and the Town of East Bridgewater and passing through Westdale^d^° the Town Line of East Bridgewater and West Bndgewater and passtng and passing through the dividing line between West Bndgewater and City of Bro«»° "d ENDING at approximately Mile Post 11.4 just south of Perkins Avenue m the vicinity of Campello, Brockton, Plymouth County, Massachusetts.

ALL THAT LINE of railroad known as the East Bridgewater Secondary in PLYMOUTH COUNTY identified as Line Code 4191 beginning at Westdale at the easterly right of way line of the Middleboro Branch and extending in * general northeasterly direction for approximately 1.96 miles to its pon** _ approximately 1000 feet north of North Central Street in the Town o ast n gewa Plymouth County, Massachusetts. /P g~TA /€«> L 7b pT.

V*'-1

/PJ -.T o rJ ,

ALL THAT LINE of railroad being a portion ifltfddietoro, PLYMOUTH COUNTY .danofied as Una Cod>4X7» begmmng ^ ^ ^

Sl\troCBrchfl^ci^ from MP. 0.00 —g generally —. - southeasterly to Mile Post 1.5.

ALL THAT LINE of railroad known as^the^West(T/tfth* North COUNTY, identified as Line Code 417S'beginning Abiagt0n and extending in a Abington Turnout.at the nortberly>\me o^^chS^m ^ ^ ^ of general easterly direcuon through Abmgton^ Rockl Town of Hanover, ENDING at mile post 3.49 east of Circuit Street in West Hanover, Plymouth County Massachusetts.

ALL THAT LINE of railroadbeing aportion of Line) in NORFOLK COUNTY identified as Lrne M.4W4. Mile Braintree, Norfolk County, Massachusetts at approximately MfiejPost L Post is approximately 1,150 feet east of the the railroad nght of way and extending in a gene ^ dividing line Weymouth, Weymouth Heights, East Weymouth and WDWU at between the town of Weymouth, Norfolk County, Massachusetts, an

EXTENDING from the dividing line betweentheTcwn Massachusetts and Town of Hingham, PLYMOUTH COUNTY, Mas^nus ^ continuing in a generally easterly direction and passing throu^ , w., p ^ g 3 Hingham to its point of ENDING at Nantasket Junction at approximately ™' _ wSS is approSnateiy U50 feet east of Summer Street tn the Town of Hmgham. Plymouth County, Massachusetts. :ing a portion of the former Penn Central Corporation, as the lines and track are described in seds from (i) the Penn Central Corporation to the Commonwealth of Massachusetts dated May 1982, recorded in Plymouth County Registry of Deeds, Book 5148, Page 21 1, I[u) the onsolidated Rail Corporation to the'Commonwealth of Massachusetts, dated June :corded hi the Plymouth County Registry of Deeds, Book 5160, Page 251-52 and die Norfolk ounty Registry of Deeds, Book 6012, Page 70-71; and (iii) the Consolidated Rai Corporation i the Commonwealth of Massachusetts, dated December 30, 1982, recorde in e ymou bounty Registry of Deeds, Book 5271, Page 76.

2 Jun OB 00 11:57a REHL ESTATE ACQUISITION [G17) 222-1G62 F--; BKIU591PG288

WHEREFORE VOTED:

UThatthe above

General Laws, Chapter 161 A, MBTA hereto enabling- , . _?rt

rN WITNESS WHEREOF, ^ Transportation Authority, hereto set our hands this W hundred and ninety-six.

MASSACHUSETTS BAY TRANSFORATION AUTHORITY

Oliver C. Mitchell, Jr.

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— > r?vTr> rir TW<5TRTTMENT AN ACT PROVIDING FOI AN ACCELERATED TRANS­ Chapter 33- PORTATION DEVELOPMENT AND IMPROVEMENT PRO­ GRAM FOR THE COMMONWEALTH.

Whereas The deferred operation of this act would tend to defeat its purpose which is to immediately provide for an accelerated transportation development and improvement program for the commonwealth, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the publ.c convenience.

Be it enacted, etc., as follows:

SECTION 1. The state department of public works, hereinafter called the department, is hereby authorized and directed to expend a sum not to exceed two billion nine hundred three million nine hundred sixty-two thousand four hundred twenty-six dollars for the following purposes: Projects for the laying out, construction, reconstruction, resurfacing, relocation or necessary or beneficial improvement of highways, bridges, bicycle paths or facilities, telecommunications, parking facilities, auto-restricted zones, scenic easements grade crossing eliminations and alterations of other crossings, traffic safety devices on state highways and on roads constructed under the provisions of section thirty-four of chapter ninety of the General Laws, highway or mass transportation studies including, but not limited to, traffic, environmental or parking studies, the establishment of school zones in accordance with section seventeen of said chapter ninety, improvements on routes not designated as state highways without assumption oh maintenance responsibilities, and notwithstand­ ing the provisions of any general or special law to the contrary, projects to alleviate contamination of public and private water supplies caused by the department s storage and use of snow removal chemicals which are necessary for the purposes of highway safety, and for the relocation of persons or businesses, or replacement of dwellings or structures including, but not limited to, the provision of last resort housing under federal law and such functional replacement of structures in public ownership as may be necessary for the foregoing purposes and for relocation benefits to the extent necessary to satisfy the requirements of the Uniform Relocation Assistance and Real Property Acquisition Act, 42 USC 4601 et seq., PL 90-646, and to sell any structure the title to which has been acquired for ig way purposes. When dwellings or other structures are removed, in furtherance of any of the foregoing projects, the excavations or cellar holes remaining shall be tilled in and brought to grade within one month after such removal. In planning projects funded by this section and section three, consideration shall be made, to the extent

94 :^l0P,ment °f Sucb

therefK8Teon calculated 7 from^ theam°UmS date such C°amounts SUCh develoP« are so lent bV theand MBTA at a rate plus equal interest r0 Laws, such properties as the authority may determine to be necessary for the

e true interest cost on bonds issued by the commonwealth at or about the time purposes of constructing and equipping a commuter rail line from the South Station- any such amounts are so lent, such repayment to be made in ten equal annual area of the city of Boston and over or under the Fort Point Channel or from a point southeasterly thereof, along the former route of the Old Colony Division of the New sta Intents over a period commencing upon the completion of such economic York, New Haven and Hartford Railroad through the city of Boston, the city of de dopment project or upon July first, two thousand and one, whichever comes Quincy and the town of Braintree, thence dividing into three routes: the Middleborough Line through the towns of Holbrook, Randolph, Avon, Brockton, Any amounts received by the MBTA from such developer pursuant to rhi, section shall be paid to the commonwealth forthwith. If on June thirtieth two Bridgewater and Middleborough; the Plymouth Line through the towns of thousand and one, any amount borrowed under authority of section forty-six'A of Weymouth, Abington, Whitman, Hanson, Halifax, Kingston and Plymouth; and the through Weymouth, Hingham, Cohasset and Scituate, and for the o I! n0t b6en di5burSed t0 such developer by the MBTA for the purposes purposes of constructing and equipping a bridge over the Neponset river between fort^th ' UndiSbUrSed am°Unt Sha" bC fetUmed t0 the c°mmonwealth the cities of Boston and Quincy over the lands of the commonwealth, adjacent to the present rapid transit bridge over said river and other properties as the authority 128 129 may determine to be necessary for said commuter rail line and its appurtenan. es including, but not limited to, unused portions of the former route now owned oy the towns of Scituate and Cohasset; portions of the former Middleborough Line ; ad the former Greenbush Line now under the control of the executive office of transportation and construction, to be subject to an easement for freight usage; vacant land in Cohasset now under the control of the department of environmental management; land under the control of the board of regents at Bridgewater state college now used for parking purposes; and vacant land under the control of the department of public health at Lakeville state hospital. SECTION 48. In addition to any contract assistance paid to the Massachusetts