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Ayer named defendant in environmental case

AYER — A lawsuit involving alleged environmental contamination of two Ayer ponds is now yet another item on Ayer’s legal agenda, drawing on legal fees from the town’s reserve funds as town attorneys draft a defense.

The U.S. government filed a complaint in January against the Boston and Maine Corporation over alleged environmental contamination of Plow Shop Pond, according to documents from the U.S. Department of Justice.

Now, BMC — owned by Pan Am Railways Inc. — has listed Ayer as a third-party defendant in the case.

The Finance Committee has approved $15,479 from the reserve fund for legal counsel to be used on both this case and the ongoing Bolduc v. Town of Ayer lawsuit.

The reserve fund money was to cover legal expenses until July 1, the start of the new fiscal year, at which point the approved fiscal 2015 budget kicks in.

Town Administrator Robert Pontbriand said about $7,000 has been spent on the B&M matter between May and the end of June. The town initially checked to see if the lawsuit is covered by town insurance, but it is not.

“Environmental claims are very rarely, if ever, covered by insurance,” he said.

Town counsel is now in the process of preparing to deal with the matter, he said.

U.S. v. Boston and Maine Corporation Complaint

The U.S. government is seeking payment for the clean-up activities the Army conducted in an area known as the former “railroad roundhouse” owned by BMC until 1942, according to the U.S. complaint.

That year, BMC sold the 6-acre Roundhouse, located at the southeastern part of Plow Shop Pond, to the U.S. The stress on environmental cleanup of the pond began years later in 1989, when the Environmental Protection Agency placed the area on its National Priority List under the Comprehensive Environmental Response, Compensation and Liability Act, also known as Superfund.

The act holds property owners accountable for the release of hazardous wastes, making them liable for any cleanup costs.

But property owners who acquire property without knowing it’s contaminated could have a defense against the liability. The complaint claims that the Army did not know about any hazardous substances in the soil or sediments of the pond until the early 1990s.

The complaint alleges that BMC dumped antimony, copper, lead and other wastes on the shoreline of Plow Shop Pond before selling the land to the Army.

The Army has spent at least $1.6 million in response to the hazardous substances since the area’s designation as a Superfund site, according to the complaint. The government is seeking money for past and future costs related to further cleanup efforts.

Ayer’s involvement

In its third-party complaint, BMC claims that the tannery that operated on the shore of Grove Pond from 1854 to 1961 dumped arsenic, chromium, lead and mercury into Grove Pond “with little or no treatment.”

BMC also claims that the town operated an open dump “for a variety of wastes” on the north shore of Grove Pond.

The complaint, obtained from Town Administrator Robert Pontbriand, states that hazardous substances in Grove Pond have migrated to Plow Shop Pond because Grove Pond flows directly into Plow Shop Pond.

As owner of Plow Shop Pond during such a disposal, BMC claims that the town is also responsible for any alleged hazardous substances in the pond.

Although BMC denies any liability to the government, it claims that Ayer is liable for contribution to BMC if it is held liable.

“At the moment we’re just going to say that it’s an active lawsuit,” said Carrie Scarano, executive vice president for Pan Am Railways, which owns BMC. “We’ll leave our comments as far as just the public documents that are of record.”

Pond history

The litigation is the latest in the dirty history of the two ponds.

In 2012, the Army began construction of a wall along Shepley’s Hill Landfill, a former waste site located near Plow Show Pond that was later identified as the cause for a slow leach of arsenic into the water.

One year later, the Army began a soil remediation project at the pond near the Roundhouse area.

Tannery wastes were deposited in the nearby Grove Pond until 1953, according to an investigative report by Gannett Fleming Inc. that was submitted to the EPA in 2006.

The report also cites a dumping ground adjacent to Pirone Park and a landfill that used to exist between the tannery and Grove Pond.

The town’s caseload

Both this legal matter and the Bolduc v. Ayer case will roll into fiscal 2015, according to Pontbriand.

The Bolduc case regards an alleged breach of contract the town is facing from its deputy collector, Bolduc Enterprises.

The company, which collects motor vehicle excise taxes, claims that former Tax Collector John Canney breached the service contract by terminating Bolduc’s services for another competitor.

That case, Pontbriand said, will hopefully be resolved soon.

Spring Town Meeting voters approved a $7,000 increase to $85,000 for the fiscal 2015 town counsel budget.