RUBIN AND RUDMAN LLP COUNSELLORS AT LAW 50 ROWES WHARF • BOSTON, MASSACHUSETTS 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, Old Colony Railroad 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. SEMS DociD 598800 RUBIN AND RUDMAN LLP 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. 418663 1 RUBIN AND RUDMAN LLP 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." 418663 1 RUBIN AND RUDMAN LLP 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.