Pollution worries prompt towns to seek legal aid
In dealing with MBTA rail-to-trail issues

WAKEFIELD DAILY ITEM
SEPTEMBER 26, 2004
By BOB BURGESS

WAKEFIELD The attorney hired by the selectmen Monday to provide legal services pertaining to the transformation of the old freight railroad line into a bike trail has helped draft amendments to the Commonwealths hazardous materials statute that could prove valuable to the local effort.

In a proposal packet given to Town Administrator Thomas P. Butler and his Lynnfield counterpart, William J. Gustus, Atty. Stephen D. Anderson of Anderson & Kreiger writes that during the course of his work assisting the town of Acton, he helped draft "what became the 'Resor Amendments' to Chapter 21E to provide certain protections both to towns and the MBTA in such rail-trail projects. I have also assisted (Acton) in its negotiations with the MBTA regarding the proposed form of acquisition and the contents of the environmental provisions of the deal (which is still under consideration by both parties). I am also an expert in environmental law and have been involved in a variety of federal and state Superfund cases for municipalities and private parties."

Chapter 21E deals with the release of oil or hazardous materials into the ground, and who is responsible for the cleanup.

The selectmen have endorsed the effort to make a recreational trail out of the soon-to-be-abandoned freight line that runs from the Junction out to Reedy Meadow. Lynnfield is entertaining continuing the trail from the meadow to the Peabody line.

Both towns need their interests protected in separate long-term leases or other arrangements between each community and the MBTA.

At a meeting last month, Thomas A. Mullen, town counsel for both Wakefield and Lynnfield, told representatives from both communities that he had looked at a draft lease sent by the MBTA to Wakefield. Mullen had several concerns, particularly where the lease touches on the community indemnifying the MBTA and paying all its legal costs should environmental hazards arise.

The Legislature recently passed pollution laws which exempt MBTA railroad beds from cleanup. Mullen said the draft lease is worded in such a way that there is a possibility Lynnfield and Wakefield may "lose out on the pollution law exemptions" if they don't work diligently to build a bike trail.

Anderson is also critical of the draft lease. In the packet proposing his service, he writes, "The MBTA has provided each town with a draft 99-year lease, which prohibits pre-acquisition environmental testing yet requires onerous environmental indemnification provisions in favor of the MBTA. Each town seeks assistance in negotiating more favorable agreements with the MBTA with respect to the environmental issues involved in its proposed acquisition of the rail trail rights-of-way."

Legal fees are estimated to run between $5,000 and $10,000 per town, according to Anderson, who added the estimate depends on how reasonable (or unreasonable) the MBTA is with respect to the negotiations." Fees and costs will be itemized, billed and paid monthly. Anderson adds that in the "event the proposed budget is likely to be exceeded, we will discuss a revised budget with each town to achieve the desired result."

Based on Anderson's experience with the Acton project, following are the services that could be required for Lynnfield and Wakefield as each seeks to get control of MBTA property:

• Attendance at meetings and communications with each town's Board of Selectmen and other town officials;
• Attendance at meetings and communications with the MBTA, its counsel and representatives of Transit Realty regarding the project acquisition documents;
• Negotiation over the proposed form and content of acquisition documents;
• Drafting the proposed acquisition documents and/or any necessary amendments;
• Title searches of the relevant right-of-way;
• Investigation of the availability of environmental insurance to protect each town with respect to its environmental exposure (if possible);
• Drafting of further statutory amendments to Chapter 21E (e.g., to force the MBTA to become more reasonable in its bargaining position if it continues to insist on full environmental indemnities while prohibiting due diligence testing of the property);
• Assisting town officials in their respective efforts to obtain federal and/or state grant funds with respect to the right-of-way project in its town awl review of how those grant funds may be affected by the MBTA's position with respect to the land acquisition and;
• Preparation for and attendance at the closing of the transaction.

Anderson is currently assisting Wakefield with legal matters concerning the cleanup of Lake Quannapowitt.