C.

DYLAN SANDERS
SANDERS@SUGARMANROGERS.COM

September 28, 2021

Via E-mail

John McKeown, OSC Stacy Greendlinger, EC

U.S. Environmental Protection Agency Emergency
Planning and Response Branch
5 Post Office Square, Suite 100 (02-2)
Boston, Massachusetts 02109-3912
Mckeown.john@epa.gov
U.S. Environmental Protection Agency
Emergency Planning and Response Branch
5 Post Office Square, Suite 100 (02-2)
Boston, Massachusetts 02109-3912
Greendlinger.stacy@epa.gov

Michelle Lauterback Cynthia Lewis

Senior Enforcement Counsel
U.S. Environmental Protection Agency Office of
Regional Counsel (4-3)
5 Post Office Square, Suite 100
Boston, Massachusetts 02109-3912
Lauterback.michelle@epa.gov
Senior Enforcement Counsel
U.S. Environmental Protection Agency Office
of Regional Counsel (4-3)
5 Post Office Square, Suite 100
Boston, Massachusetts 02109-3912
Lewis.cindy@epa.gov

Re: City of New Bedford Notice of Potential Liability and Invitation to Perform or Finance
Proposed Removal Activities for the Bliss Corner Neighborhood Site in Dartmouth,
Massachusetts

Dear Mr. McKeown, Ms. Greendlinger, Attorney Lauterback and Attorney Lewis:

I am writing in response to EPA’s September 15, 2021 letter, which informed the City of New Bedford
(the “City”) of its potential liability, under § 107(a) of the Comprehensive Environmental Response,
Compensation and Liability Act (“CERCLA”), regarding the Town of Dartmouth’s Bliss Corner
neighborhood (“Site”) and which provided the City with notice of EPA’s planned removal activities at
the Site. Accompanying the Notice was a copy of EPA’s September 14, 2021 Action Memorandum,
requesting and documenting approval of a proposed removal action for five properties in the Bliss Corner
neighborhood, which the Action Memorandum characterized as “generally centered around a vacant
property located at 85 McCabe Street in Dartmouth, Massachusetts.”

As you know, the City, together with the Town of Dartmouth, met with the Massachusetts Department of
Environmental Protection (“MassDEP”) and EPA on August 11, 2021 to discuss MassDEP and EPA’s
investigations to date and possible remedial options and solutions going forward. On August 23, 2021,
MassDEP formally requested EPA’s assistance in conducting a removal action to abate, mitigate, or
John McKeown, OSC
Stacy Greendlinger, EC
Michelle Lauterback, Senior Enforcement Counsel
Cynthia Lewis, Senior Enforcement Counsel
September 28, 2021
Page 2

eliminate the risk associated with exposure to elevated levels of lead and PCBs in shallow soils at
residential properties within the Site. On September 15, 2021, EPA sent the City a letter informing the
City of its potential liability under CERCLA as a possible arranger and transporter and invited the City to
perform or finance identified removal activities.

I now write to inform EPA that the City is not in a position to assume responsibility for performing
response actions for such a significant area of another municipality. (This should not be surprising. Your
Notice notes that the state, too, “has limited resources, and cannot completely address the situation at the
Site.”) If it is appropriate for any municipal party to assume responsibility for the response actions – and
the City does not concede that it is -- the City believes that it should be the municipality in which the
neighborhood is located, and who is responsive to and responsible for its residents and private
landowners, as well as being one of the owners of property in that neighborhood. Perhaps most
importantly from the standpoint of the immediate risks to public health that EPA has identified, the City
is simply not able to provide on a timely basis the necessary resources (including financial and technical
resources) to conduct the immediate removal activities that are apparently required to address conditions
of imminent hazard, or to take general charge of the removal activities at this site.

After the EPA removal activities have been completed, there will be ample opportunity for all interested
parties to consider what next steps, if any, may be warranted. In the meantime, we would appreciate your
keeping us generally advised of further developments and pertinent new information obtained by EPA
and/or MassDEP.

At this time the City expressly reserves all of its statutory and other defenses and rights in connection
with this matter. Neither the Notice nor the Action Memorandum provided any specific information
concerning the basis of EPA’s conclusion that the City has potential liability as an arranger or transporter
of hazardous materials. The City is aware of a few vague and inclusive references in a handful of
newspaper records to historic dumping that may have occurred in the Bliss Corner neighborhood, and the
City is aware of records from the Town of Dartmouth suggesting that dumping in and filling of various
properties in Bliss Corner may have occurred, but these references are rarely specific as to which
property may be at issue. In any event, these few and inconclusive references do not provide sufficient
evidence to support a reliable determination of liability, nor do they support any voluntary pledge by the
City of precious taxpayer funds to the clean-up of historic contamination caused by unknown parties at a
still-undefined portion of a neighboring municipality. As a municipality faced with many competing
concerns and public needs, the City has a limited ability to pay any settlement or contribute to any
response action, particularly one occurring outside of the City. If and when it may be necessary and
appropriate to do so, the City expects to avail itself of the protections of all applicable ability to pay
policies, and any other policies that may offer relief and protection in connection with the pertinent
removal action or other EPA activities that may result in cost recovery claims. (Per your Notice’s
John McKeown, OSC
Stacy Greendlinger, EC
Michelle Lauterback, Senior Enforcement Counsel
Cynthia Lewis, Senior Enforcement Counsel
September 28, 2021
Page 3

instructions, I will contact Stacy Greendlinger by separate email to request information on “Ability to
Pay Settlements.”)

For future communications, please use me as the designated contact for the City of New Bedford, and
please copy Michele Paul, Director of Environmental Stewardship for the City of New Bedford.

Dylan Sanders Michele Paul

Sugarman, Rogers, Barshak & Cohen, P.C. Director of Environmental Stewardship
101 Merrimac Street, Suite 900 City of New Bedford
Boston, MA 02114 133 Williams Street, Room 304
617.619.3435 (office) New Bedford, MA 02714
617.549.5828 (mobile) 508.991.6188
Sanders@sugarmanrogers.com Michele.Paul@newbedford-ma.gov

Please feel free to contact me if EPA has any questions or wishes to discuss this matter further. Thank
you for your consideration.

Sincerely,

/s/ Dylan Sanders

Dylan Sanders

cc: Mikaela A. McDermott, City Solicitor, City of New Bedford

Michele Paul, Director of Environmental Stewardship, City of New Bedford
John T. Handrahan, Acting Deputy Regional Director, MassDEP,
Bureau of Waste Site Cleanup
Andrew Raddant, U.S. DOI Regional Environmental Officer

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