The following letter was sent to Mayor Mary Clare Higgins on May 30, 2008. Click here to view a PDF file of exhibits 1-6 which accompanied said letter.
ENGEL & SCHULTZ, LLP.
Attorneys at Law
265 Franklin Street, Suite 1801
Boston, MA 02110-2704
Peter L. Koff
Of Counsel
Phone: (617) 951-9980
Facsimile: (617) 951-004-8
E-Mail: pkoff@comcast.net
May 30, 2008
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
Mayor Clare Higgins
City of Northampton
Puchalski Municipal Building
212 Main Street
Northampton, MA 01060
Re: Mass. G. L. c. 21 E, s. 4A, notice of intent regarding release of hazardous materials;
Private nuisance, notice of intent to commence action
Dear Mayor Higgins:
This legal notice is being sent pursuant to Mass. G. L. c. 21E, s. 4A,on behalf of my clients
Michael S. Fedora and Lillian B. Fedora of 238 Glendale Road, Northampton, Massachusetts, in
regard to legal claims to be asserted against the City of Northampton with regard to its operation of
the Northampton Sanitary Landfill and the Northampton Regional Sanitary Landfill located at 170
Glendale Road.
The Fedoras’ property is located immediately south of and adjacent to the original unlined
City of Northampton Sanitary Landfill and the expanded City of Northampton Regional Sanitary
Landfill located to the east thereof, which are collectively hereafter referred to as the "Landfill" and
are shown by Exhibit 1 (an aerial photograph of the Landfill identifying the Fedora property and the
boundaries of other surrounding parcels). Just past the fence along the southern boundary of the
Landfill and at the eastern side of the Fedoras’ property, a steep slope (running in a
northerly/southerly direction) goes down to woodland and wetlands areas (shown on Exhibit 2)
which surround an unnamed tributary to Hannum Brook, the location of which is shown on Exhibit
3. The groundwater contour plan (January 2008) attached as Exhibit 4, prepared by Stantec
Consulting Services Inc., shows elevations of the Landfill, brook and surrounding area in more
detail, along with the groundwater elevations for each of the monitoring stations identified on that
plan. The attached Exhibit 5 is a photograph taken on March 27, 2008, showing a portion of the
wooded area and wetlands on the Fedoras’ property through which Hannum Brook flows in a
southerly direction.
In the late 1960’s the City of Northampton was required by federal and state agencies, and
subsequently by an order of the Massachusetts Superior Court which became effective as of July I,
1969, to cease disposing of its municipal refuse by means of an open-face dump (with open-burning
permitted) operated by a private contractor for the City, and instead to locate a new refuse disposal
facility that would meet state landfill disposal requirements. During the consideration of possible
alternative sites for the new facility and the subsequent approval of the local and state site
assignments in 1969, the City became aware that location of the Landfill at one of the possible sites,
the former Calduwood Enterprises property (Omasta Gravel Pit), might cause contamination of
down-gradient properties resulting from the migration of leachate from the Landfill.
For example, City records show quite clearly that the City’s own outside sanitary engineering
consultant, Edson F. White, P.E. of Utility Survey Engineering Corp., repeatedly advised Mayor
Walter J. Puchalski, the City Council, and the Board of Health of his serious concerns that Hannum
Brook would become polluted from leachate getting into the sub-surface waters beneath the
Calduwood site, potentially creating legal liability to down-stream riparian property owners who
would be damaged by this pollution. In addition, the State Department of Public Health had
determined that, given the strong possibility that placement of refuse on the Calduwood site would
cause ground water pollution, the selection of that site would preclude its subsequent use as a source
of public water supply as the City had initially considered in 1965. Notwithstanding these warnings,
the City went forward with acquisition and location of the of the Landfill at the Calduwood site.
Mayor Puchalski’s June 25, 1969 approval of the land-taking order for that property included an
attached statement explaining that while he believed "it is not in the best interest of the City of
Northampton now, and especially in the future" to locate a refuse disposal facility at the Calduwood
site, the Mayor had "no other recourse" given the deadlines imposed on the City.
The predictions that Hannum Brook and the downstream wetlands would become
contaminated from Landfill leachate proved to be valid. City records repeatedly document that
leachate migration from the Landfill has contaminated the wetlands of downstream property owners
to the south and east of the Landfill, and that this contamination has resulted in damage claims
against the City. See, for example, the memorandum dated February 10, 1989 from Peter J.
McErlain, Northampton Health Agent, to Northampton Mayor David B. Musante, Jr. and the
Northampton City Councilors,which states as follows: "The operation of the Northampton Sanitary
Landfill for the past twenty years has resulted in leachate pollutions of Hannum Brook which, in
turn, has resulted in several damage claims being filed against the City by downstream property
owners." Over the years the City has been required to appropriate and expend municipal funds to
investigate and settle claims through engineering, field analysis and tests, and the provision of an
alternative water supply source for one property owner. For example, see the January 11, 1989
memorandum from Northampton Health Agent Peter J. McErlain to Assistant City Solicitor
Kathleen Fallon.
In 1988 the City’s Board of Health, which was the operator of the Landfill, requested its
Landfill consultant, Dufresne-Henry, Inc. (now Stantec Consulting Services Inc.), to assess the
problem of damage to Hannum Brook and its wetlands resulting from operation of the Landfill and
to recommend alternative courses of action. Dufresne-Henry recommended three possible actions:
(1) remediation of Hannum Brook; (2) remediation of the Hannum Brook "swamp" (wetlands); and
(3) take no remedial action at this time, but close and cap the existing Landfill. On December 20,
1988theBoard of Health voted to recommend to the Mayor and City Council alternative#3,i.e. that
no remedial action be taken at that time, and that the existing Landfill be closed and capped. In
addition, the Board of Health voted to recommend that payments be made to owners of property
downstream of the Landfill along Hannum Brook who had been deprived of the agricultural use of
Hannum Brook water due to landfill leachate contamination.
The original unlined section of the Landfill was closed in 1990, but it was not finally capped
until 1995. In the meantime, the City expanded its landfill operations to the east and converted the
facility into a regional landfill. Since then, and as a consequence of the City’s continuing failures
to exercise appropriate landfill management practices, to meet all standards and requirements
imposed by the Massachusetts Department of Environmental Protection("DEP"), and to remediate
the on-going pollution of Hannum Brook and its wetlands, the City has allowed contamination of
Hannum Brook to continue to the present time, along with the destruction of wetlands and damages
to my clients’ property, but with no relief in sight and no remedial actions being taken to cure the
serious problems being caused to my clients.
Records of the City of Northampton Department of Public Works ("DPW") submitted to
DEP have reported evidence that leachate from the Landfill has been discharging into the wetlands
south and east of the landfill. For example, analysis of the August 21, 2007 sediment and surface
water samples along the Hannum Brook wetlands, which had been collected by Fuss & O’Neill for
the DPW, show a sediment sample (at Fedora-2) with an arsenic level of 110 mg/Kg. The leachate
that runs from the Landfill into the tributary has caused this arsenic to mobilize. Elevated arsenic
values are not only present in the sediment in the wetlands, but also in the leachate generated by the
Landfill, as shown in the water quality samples collected for the DPM on October 2,2007 by Stantec
and reported in the 2007 Hannum Brook Evaluation Update (December 21,2007), as supplemented
by the March 10,2008 clarification. The Hannum Brook surface water samples also verified reduced
dissolved oxygen, which is evidence of leachate.
A reduction in the level of dissolved oxygen allows mobilization of iron, manganese, and
arsenic. The high iron and manganese in the area ofMW-B is a direct result of leachate entering the
stream from the landfill. Data in the December 2007 Hannum Brook Evaluation Update, as
supplemented, shows that iron and manganese concentrations have been increasing in MW-B over
the past 10 years, meaning that increasing amounts of leachate are being generated from the Landfill
despite installation of a cap on the unlined portion. To date there has been no explanation of why
more and more leachate is leaving the site.
The reddish-brown discoloration of the surface water and soils (as shown in the photograph
attached as Exhibit 5) are evidence of iron "floc" deposits resulting from migration of leachate from
the Landfill: the leachate has mobilized arsenic from the aquifer into the springs emerging from the
ground and into the sediments of the Hannum Brook. Recent tests of the iron floc/sediment in the
wetlands behind the Fedora’s property, in fact, show that this floc is rich in arsenic. See the February
28, 2008 report entitled "Focused Risk Characterization," prepared by Gradient Corporation for
Stantec, and the 2007 Hannum Brook Evaluation Update (as clarified by the letter dated March 10,
2008). Attached as Exhibit 6 is a graph which plots the iron concentration values for water samples
from monitoring well MW-B (located south of the Landfill), which shows a significant drop after
the original unlined portion of the Landfill was capped in 1995; and the subsequent significant
increase over the past two years when the values have quickly risen. J The high arsenic confirms the
hypothesis that leachate is mobilizing arsenic from the aquifer. In addition, all five water samples
taken (between April 2005 and April 2007) from monitoring well MW-B show the presence of the
volatile organic compound ("VOC") 1,4-Dioxane. See the Focused Risk Characterization report,
Table 18.
The Fedoras first noticed that the landfill might be causing pollution to the stream and
wetlands on their property in October of 1979. Subsequently they attended numerous Board of
Health meetings to bring to the Board of Health’s attention the many problems associated with the
Landfill operations and the pollution of the wetlands. After the City decided to take no remedial
action with regard to Hannum Brook and the wetlands, but instead to make payments to certain
downstream property owners impacted by the contamination, on January 20, 1989 the Fedoras filled
out a claim questionnaire regarding property damage, which was filed with the City Solicitors office.
In response, the City has done nothing about this matter.
The Fedoras have continued to bring their concerns to the attention of the City officials on
many occasions and have invited, without success, Mayor Clare Higgins to make a site visit to see
the damage of landfill contamination on their property. During the summer of 2007, the Director
of the DPW, Ned Huntley, the City Engineer, Jim Laurila, and a representative of DEP’s Western
Region, Dan Hall, all visited the Fedoras’ property to view the wetlands and its contamination, to try
to convince Mr. Fedora that there was nothing wrong with the wetlands, and to assure Mr. Fedora
that Hannum Brook water was within potable drinking water standards (although that it had high iron
staining). Most recently, in March of 2008 representatives of the City (Jim Laurila, Ned Huntley,
(Footnote 1-The March 10, 2008 letter points out that the two most recent sampling rounds for iron
concentrates at MW-B reflected "the two highest recorded since 1995.")
David Veleta and David Reckhow) spoke with Mr. Fedora about the contamination of his property
and presented him with a copy of the February 28,2008 risk characterization report. At that meeting
Mr. Laurila and Mr. Huntley summarized the report by stating the wetlands had only high iron
staining and posed no health risk. For the record, my clients do not agree with these statements.
It was not until March of 2008, after my clients retained an environmental consultant to help
review the available information about the Landfill, that my clients became aware that the Landfill
leachate which had migrated onto their property contained discharges of arsenic in excess of the
concentrations required to be reported to DEP. Mass. G. L. c. 21E makes the City of Northampton,
as the owner of the Landfill, responsible for evaluating risk from and remediating contamination
that has migrated from the Landfill and eliminating any risk of harm to health, welfare, safety and
the environment in the stream and wetlands areas which have been impacted down-gradient from
the Landfill.2
My clients reasonably believe that the City of Northampton is liable pursuant to Chapter 21 E,
s. 5(a)(1)(iii) , for the damage to my clients’ property incurred or suffered as a result of such release
or threat of release. Furthermore,my clients believe that pursuant to Chapter 21E, s. 5D, my clients
are exempt from liability for this release because it was released from an upgradient source (the
Landfill) and has migrated onto my clients’ property. Nevertheless, in the event the provisions of
Chapter 21 E, s. 5D, are subsequently determined not to exempt my clients from any and all liability
under s. 5(a) for the release or threat of release identified in this letter, this letter is being written as
a notification to the City of Northampton pursuant to Chapter 21E, s. 4A (a), that my clients intend
to seek contribution, reimbursement or equitable share from the City of Northampton for the costs
of the response action; and that my clients specifically request that the City of Northampton itself
perform the response action which will be necessary to comply with the requirements of Chapter 21E
and the MCP. You are specifically put on notice that Chapter 21E, s. 4A(a), requires that you
respond to this notification within forty-five (45) days of receipt, including whether or not, and to
what extent, you will pay contribution, reimbursement or equitable share to the Fedoras and/or
participate in, and complete, the necessary response action.
Finally, by this letter we wish to notify the City of Northampton that my clients intend to
commence an action seeking damages, as well as appropriate equitable and injunctive relief, against
(Footnote 2-It is my clients’ understanding that because Gradient’s February 2008 risk
characterization report, along with the Fuss & O’Neill and Stantec reports and data referred to
above, have all been submitted to DEP, it is not necessary for my clients to report to DEP a
release and/or threat of release of oil or hazardous material on their property, as otherwise would
be required by Chapter 2IE, s. 7, and the relevant provisions of the Massachusetts Contingency
Plan ("MCP"), including 310 CMR 40.033I(a).)
the City of Northampton in regard to the private nuisance which the City has caused to my clients’
property, although a formal presentment letter is not required since this claim falls outside the
Massachusetts Tort Claims Act, G. L. c. 258. In this action the Fedoras will also rely upon the City’s
allowance of, and failure to correct, the series of zoning violations for which the Fedoras, along with
other petitioners, are seeking appropriate zoning enforcement relief by means of the appeal now
pending before the City of Northampton Zoning Board of Appeals.
I would be pleased, on behalf of my clients, to discuss this matter with you and/or your
counsel prior to a complaint being filed should the City of Northampton be willing to entertain
serious discussions about settlement of that claim. Please be advised, however, that as long as the
City intends to proceed with the expansion of the existing Landfill (which will only continue to
exacerbate the existing problems and not stop the continuing pollution of Hannum Brook and the
Fedoras’ own property) rather than immediately beginning a serious investigation of alternatives to
expansion at this site, there will be no basis for my clients to enter into settlement discussions.
Please let me know if I can provide you or your counsel with any further information in
regard to these matters.
Sincerely yours,
Peter L. Koff
cc: Janet M. Sheppard, Esq., City Attorney (via email)
Michael J. Gorski, Regional Director, DEP Western Region (via email)
Michael and Lillian Fedora
