PVEEE aa) Commonwealth of Massachusetts Executive Office of Energy & Environmental Affairs Department of Environmental Protection Western Regional Office +436 Dwight Street, Springfield MA 01103 + 413-784-1100. CChatles D. Baker Matthew A. Beaton Governor Secretary Karyn E,Polto Martin Suuberg LUeutenant Governor ‘Commissioner CERTIFIED MAIL: M5. Cynthia S. Scarano, Executive Vice President Pan Am Railways 1700 Iron Horse Park North Billerica, Massachusetts 01862-1692 RE: BAW-Waste Rail Ties - Greenfield DEMAND FOR PAYMENT OF STIPULATED PENALTIES ENR, No. 00005472 NOTICE OF DEMAND FOR PAYMENT OF STIPULATED PENALTY Dear Ms. Searano: ‘You (“you” or “your” refers to Pan Am Railways and Boston & Maine Railroad Corporation) are hereby notified of the Department of Environmental Protection’s (“MassDEP”) intent to assess a Demand for Payment of Stipulated Penalties against you for failing to comply with the terms and conditions of an ‘Administrative Consent Order (ACOP-WE-13-4003) entered into between you and MassDEP on March 18, 2013. The reasons for the issuance of the Demand are explained in the enclosed documents. Please note that the attached Demand pertains only to the waste rail ties described in the Demand; specifically, the waste rail tie piles in located in Greenfield. MassDEP expects you to return to compliance at this site within 30 days of the date of issuance of this Demand and will exercise enforcement discretion during this time period. If you have not returned to compliance with the Administrative Consent Order at this location, within the timeframe stipulated, additional penalties will accrue from this date forward for which MassDEP may issue further Demand For Payment. MassDEP has inspected other locations along the rail lines that you operate in the Commonwealth and ‘may, either in response to complaints or fires, or at its” own discretion, initiate additional enforcement if Pan Am does not come into compliance with Administrative Consent Order. ‘These documents contain appeal provisions, so please read them carefully. Failure to take adequate action in response to this notice will result in serious legal consequences. Additionally, be advised that ‘MassDEP may issue a press release for this enforcement action. te format, Contact ichele Watars-Ekanom, Drctr of DiverstyiCivt Rights at 67-292575. TaseDEP Weber mees govdep Prints on Recycled PaperIf you have any questions concerning this matter please feel free to contact Daniel Hall at (413)755-2212. Sincerely, pac rlzele eae v Steven E. El Deputy Regional Director Westen Regional Office Department of Environmental Protection Certified Mail: 7016 0340 0000 4822 7310 cc: Daniel Hall, MassDEP/WERO Peter Czapienski, MassDEP/WEROTRANSMITTAL FORM. PAYMENT OF STIPULATED PENALTY Penalty issued to: Pan Am Railways and Boston & Maine Corporation (Greenfield ACOP #: 00005472(ACOP-WE-13-4003) Date of Demand for Payment: Amount of Demand for Payment: $30,000.00 _ SS# ot FEIN#: (Social Security/Federal Employee Identification Number) Payment enclosed: $ by certified or cashier's check or money order made out to the ‘Commonwealth of Massachusetts. I understand that payment alone may not constitute compliance. Signed this___day of » 2018 (Signature) Print Name: Title Address: Phone: (__)__~ Send this form with your payment to: ‘Commonwealth of Massachusetts, Department of Environmental Protection, Commonwealth Master Lockbox, P.O. Box 3982, Boston, MA 02241-3982. Please carefully read and follow the instructions for payment set forth in the Demand for Payment, as it may require additional actions not described in this form.COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION In the matter of: Enf. No. 00005472 (Greenfield) Pan Am Railways and Boston & Maine Corporation DEMAND FOR PAYME! IPULATED PENALTI ol 1, THE PARTIES 1, The Department of Environmental Protection (“MassDEP”) is a duly constituted agency of the Commonwealth of Massachusetts established pursuant to M.G.L. c. 21, §7. Its principal office is located at One Winter Street in Boston, Massachusetts; it also operates a regional office at 436 Dwight Street in Springfield, Massachusetts. 2. Pan Am Railways/Boston & Maine Corporation (“Pan AM") is a Delaware Corporation with a place of business at Iron Horse Park, North Billerica, Massachusetts. Pan AM’s mailing address for the purposes of this Demand is 1700 Iron Horse Park, North Billerica, Massachusetts 01862-1692. I. STATEMENT OF FACTS AND LAW 3. MassDEP is responsible for the implementation and enforcement of MGL. c. 111, §§ 150A and 150A1/2, the Solid Waste Management Regulations at 310 CMR 19.000, and the Site Assignment Regulations for Solid Waste Facilities at 310 CMR 16.00, ‘The Department has authority under M.G.L. ¢, 21A, § 16, and the Administrative Penalty Regulations at 310 CMR‘Matter of Pan Am Railways/Boston & Maine Corporation Demand for Payment of Stipulated Penalties Ent. No. 00005472 (Greenfield) Page 2 of 8 5.00, to assess civil administrative penalties to persons in noncompliance with its regulations, orders, licenses or approvals. 4, On March 18, 2013, MassDEP and Pan AM entered into an Administrative Consent Order with Penalty (the “Consent Order”), File No. ACOP-WE-13-4003. A copy of the Consent Order is attached. The Consent Order required, in pertinent part at Paragraph IIL9. A, C, and D, the following: “A. Immediately upon the effective date of this Consent Order, Respondent shall cease the unauthorized disposal, abandonment or discarding of railroad ties which Respondent has removed from its rail lines in the Commonwealth and shall manage all such. ‘materials to ensure compliance with M.G.L. ¢.111, §150A, 310 CMR 16.00, and 310 CMR 19.000, by implementing and adhering to Section 5.1.9 of Respondent’s EMS and Paragraphs 1-3 of Respondent’s ENV-SOP-032, the provisions of which are expressly incorporated herein and a true copy of which is attached hereto as Exhibit A.” “C. By no later than September 1, 2013, Respondent shall survey all of its track in the Commonwealth for the purpose of appropriately dating used and scrap rail ties staged along its tracks in accordance with ENV-SOP-032. All ties so marked shall be dated with the month and year upon which they were removed from rail service in accordance with ENV-SOP-032. D. By no later than October 1, 2013, respondent shall be in full compliance with the Solid Waste Management Regulations, Section 5.1.9 of their EMS, and ENV-SOP-032.”Matter of Pan Am Railways/Boston & Maine Corporation Demand for Payment of Stipulated Penalties Enf. No, 00005472 (Greenfield) Page 3 of 8 5. Section 5.1.9 of Pan AM’s EMS states, in pertinent part; “Used and scrap ties shall, upon removal for service, be allowed to remain along the rail line where they were removed for a period of up to one year (365 days) provided they are managed in a manner that is compliant with ENV-SOP-032.” 6. ENV-SOP-032 states, in pertinent part; At Section 2.0 C.1: “Scrap and used ties shall not be placed along the track in locations or quantities that would pose a fire hazard or threat to emergency personnel.” At Section 2.0 C.5: “Staged ties shall be removed from along the ROW by no later than 365 days of the date from which the ties were initially staged. Serap ties shall be removed and directly transported for offsite disposal or recycling at an appropriately permitted facility.” 7. Pan AM also agreed that if it failed to meet the requirements found in Paragraph IIL9. of the Consent Order, then Pan AM, pursuant to Paragraph III.20. of the Consent Order. would pay stipulated penalties to the Commonwealth as follows: “In addition to the penalty set forth in this Consent Order (including any suspended penalty), if Respondent violates any provision of this Consent Order, Respondent shall pay stipulated civil administrative penalties to the Commonwealth in the amount of one thousand dollars ($1,000) per day for each day, or portion thereof, each such violation continues.”Mater of Pan Am Railways/Boston & Maine Corporation Demand for Payment of Stipulated Penalties Enf. No. 00005472 (Greenfield) Page 4 of 8 Further, also pursuant to Paragraph III.20. of the Consent Order, “If simultaneous violations ‘occur, separate penalties shall accrue for separate violations of this Consent Order.” 8 On May 19, 2015 and May 14, 2018 MassDEP personnel rode the east/west rail line with Pan AM to evaluate progress of Pan AM toward compliance with the Consent Order. MassDEP recorded the results of these evaluations in what is hereinafter referred to as the “2015 survey” and the “2018 survey”. On May 19, 2015 and May 14, 2018 MassDEP observed piles of waste rail ties at the Greenfield location southeast of a solar atray northeast of the track. This location was identified as location #f 055 in MassDEP’s 2015 survey and location # 203 in MassDEP*s 2018 survey. 9. Asaresult of the 2015 and 2018 surveys, MassDEP has determined that waste rail ties have been staged along the rail line longer than the 365 days allowed in the Consent Order and are placed ties along the track in quantities that pose a fire hazard and threat to emergency in noncompliance response personnel. As a result, MassDEP has determined that Pan AM is with Paragraph TIL9. of the Consent Order at this location. I1_DISPOSITION 10. Because Pan AM failed to comply with the requirements found in Paragraph(s) IIL9. of the Consent Order, MassDEP hereby demands that Pan AM pay a stipulated penalty of $1,000 per day for thirty (30) days for a total amount of thirty-thousand dollars ($30,000) for the violations described in Paragraphs 8 and 9 above.‘Matter of Pan Am Railways/Boston & Maine Corporation Demand for Payment of Stipulated Penalties Enf. No, 00005472 (Greenfield) Page 5 of 8 11. This written demand is only for the violations and location specified above and only for the period up to and including the issuance date of this Demand. MassDEP expressly reserves its right to assess additional stipulated penalties for other violations of the Consent Order, and to pursue additional stipulated penalties or other enforcement action for the violations specified above. IV. APPEL 12, Pan AM is hereby notified that it has have a right to an adjudicatory hearing if it contests MassDEP’s determination that they failed to comply with the Consent Order and/or to contest the accuracy of MassDEP’s calculation of the amount of the stipulated civil administrative penalties. Pan AM’s request for an adjudicatory hearing is subject to and must be made in compliance with applicable provisions of MassDEP's Rules for Adjudicatory Proceedings, 310 CMR 1.00. 13, Effective twenty-one (21) days after the date of issuance of this Demand, Pan AM shall ‘be deemed to have waived its right to an adjudicatory hearing on this Demand unless, within said twenty-one (21) days, they file with MassDEP (i.e., MassDEP receives) a written statement that does either or both of the following, and does so subject to and in compliance with applicable provisions of MassDEP's Rules for Adjudicatory Proceedings, 310 CMR 1.00: i. denies what is set forth in Paragraphs 4-9 above; or ii, asserts that the money amount of the Demand as set forth in Paragraph 10 above was incorrectly calculated; andMatter of Pan Am Railways/Boston & Maine Corporation Demand for Payment of Stipulated Penalties Enf, No. 00005472 (Greenfield) Page 6 of 8 iii, clearly and concisely states every point of fact and law Pan AM intends to raise in the adjudicatory proceeding; iv. includes a copy of this Demand; v. is addressed to and filed with: Case Administrator Office of Administrative Appeals Massachusetts Department of Environmental Protection. One Winter Street Boston, Massachusetts 02108; and vi. sends a valid check made payable to Commonwealth of Massachusetts in the amount of $100.00 for the required filing fee, together with a completed Adjudicatory Appeal Fee ‘Transmittal Form, a copy of which is attached hereto, to: Commonwealth of Massachusetts Massachusetts Department of Environmental Protection P.O. Box 4062 Boston, MA 02211-4062 Failure to pay the filing fee as required is grounds for dismissal of the request for hearing. Upon. a showing of undue financial hardship, MassDEP may waive the adjudicatory hearing filing fee. ‘A person who believes that payment of the $100.00 filing fee would be an undue financial hardship must file, together with the request for adjudicatory hearing as provided above, an affidavit setting forth the facts the appellant believes constitute the undue financial hardship.Matter of Pan Am Railways/Boston & Maine Corporation Demand for Payment of Stipulated Penalties Enf. No. 00005472 (Greenfield) Page 7 of 8 14, IfPan AM waives its right to an adjudicatory hearing, Pan AM must pay the full amount of the stipulated penalty no later than twenty-one (21) days after the date of issuance of this Demand. Payment must be by certified check, cashier's check, or money order, payable to the Commonwealth of Massachusetts. The Enforcement Number on the first page of this Demand (00005472) should be clearly printed on the face of the certified check, cashier's check or money order. Failure to do so could delay the crediting of your payment and returning to compliance. No other form of payment will be accepted, Payment must be mailed to: Commonwealth of Massachusetts Massachusetts Department of Environmental Protection Commonwealth Master Lockbox P.O. Box 3982 Boston, Massachusetts 02241-3982 15, IfPan AM waives its right to an adjudicatory hearing, and if Pan AM does not pay the full amount of the stipulated penalty within twenty-one (21) days after the date of issuance of this Demand, Pan AM shall be liable to the Commonwealth for up to three times the amount of the stipulated penalty, together with costs, plus interest, from the time the stipulated penalty became final, and attorney's fees, including all costs and attorneys’ fees incurred directly in the collection of the stipulated penalty. 16, If the noncompliance described in Paragraphs 4-9 above continues or is repeated after the date of issuance of this Demand, additional stipulated penalties may be assessed for every day of such noncompliance from now on, Such additional stipulated penalties may be assessed in the course of the adjudicatory hearing on this Demand, without issuance of any other stipulatedMatter of Pan Am Railways/Boston & Maine Corporation Demand for Payment of Stipulated Penalties Enf. No. 00005472 (Greenfield) Page 8 of 8 penalty demand notice to Pan AM. If Pan AM waives its right to an adjudicatory hearing on this, Demand, such additional stipulated penalties may be assessed in as many additional Demand notices as necessary. MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION By: fichael Gefski, Kegional Director Western Regional Office 436 Dwight Street Springfield, MA 01103 (413) 784-1100 Date: gee E