(The office of Massachusetts Attorney General Martha Coakley issued the following on April 1, 2009.)
WOBURN, Mass. — A New Hampshire railway company, and three of its subsidiaries, were sentenced yesterday to three years of probation and ordered to pay criminal fines totaling $500,000 for failing to report a hazardous materials spill and contamination on its rail yard property in Ayer in August 2006. On Tuesday, Middlesex Superior Court Judge Elizabeth Fahey ordered Pan Am Railways, Inc., of Nashua, NH, a privately-owned freight railroad that services northern New England, from Mattawamkeag, Maine, to Rotterdam Junction, New York, to pay a $125,000 fine to the Commonwealth. Judge Fahey also ordered the Maine Central Railroad Company, which owns the locomotive from which the spill occurred; the Boston & Maine Corporation, which owns the Ayer rail yard; and the Springfield Terminal Railway Company, which is the operator of both the locomotive and the rail yard, to also each pay a $125,000 fine to the Commonwealth. Pan Am, and its three subsidiaries, were also sentenced to three years of probation as part of yesterday’s sentence. A Middlesex Superior Court Jury convicted Pan-Am and its three subsidiaries on March 23, 2009, on charges of violating the Massachusetts Oil and Hazardous Material Release Prevention Act (2 counts).
“When a hazardous oil spill is not reported promptly after it occurs, the damage caused by that release can exacerbate an already harmful event,” said Attorney General Coakley. “It is vitally important that corporate entities recognize their obligations to immediately report hazardous waste spills and I am pleased the court has set fourth a series of probation conditions aimed at preventing notification lapses in the future with this companies.”
“Failure to notify is an offense to the integrity of the Commonwealth’s cleanup program, which is based on voluntary compliance and immediate response to spills of oil and hazardous materials in our environment,” said Commissioner Laurie Burt of the Massachusetts Department of Environmental Protection (MassDEP). “This case highlights the importance of ensuring that there is a level playing field for the hundreds of companies that make it a business priority to comply with our environmental laws every day.”
Among the terms of probation, but are not limited to, the following conditions:
* Within 90 days, the defendants must adopt and implement an Environmental Management System (EMS), as defined by and acceptable to the Massachusetts Department of Environmental Protection;
* within 90 days, the defendants must adopt and implement an education and training program in environmental compliance for all company officers and employees;
* the defendants are restrained and enjoined from making bonus, retention or any other payments to anyone over $100,000 in a 12-month period, excluding salaries, until they have paid their fines to the Commonwealth;
* the defendants are restrained from concealing, transferring or otherwise disposing of assets, except in the course of ordinary business, until they have paid their fines;
* every 90 days, the defendants’ must notify the MassDEP, the Attorney General’s Office and the court concerning their compliance or non-compliance with these terms of probation;
* the court reserves the right to appoint an environmental compliance monitor at the defendants’ expense if they fail to adopt and implement an EMS and set up an education and training program for employees and company officers.
An investigation conducted by the Massachusetts Environmental Crimes Strike Force (ECSF) found that, on the evening of August 8, 2006, a locomotive left idling at Pan Am Railways’ rail yard in Ayer, spilled hundreds of gallons of diesel fuel onto the ground. Despite a two-hour time period requirement for reporting spills of ten gallons or more to the MassDEP, the fuel spill was not reported by the company or its subsidiaries either that night or the next morning, but instead investigators found that an attempt was made to cover it up. Massachusetts’ law requires that any owner or operator of a site, as soon as it has knowledge of a release or threat of release of oil or hazardous material, shall immediately notify MassDEP.
The MassDEP was first notified of the fuel spill on the afternoon of August 9, 2006, by a caller, who wished to remain anonymous out of a concern for retribution by the railroad. The caller indicated that the railroad assertions that the spill was less than the reportable quantity of ten gallons was false, and that workers believed the spill was significantly greater. The caller stated that the railroad appeared to be trying to hide the spill and avoid its detection by covering the spill area with fresh ballast.
The Ayer Fire Department, a member of MassDEP’s Emergency Response team, and inspectors from the Federal Railroad Administration responded to the scene late in the afternoon of August 9, 2006, and initiated an investigation into the circumstances surrounding the spill. Initial assessments by the responding agencies indicated that a fuel spill involved hundreds of gallons occurred at the site. The Federal Railroad Administration’s investigation eventually concluded that over 900 gallons of diesel fuel had leaked from the locomotive.
Subsequent investigation by the ECSF revealed numerous ways in which the railroad companies learned of the spill, and its extent, but failed to report what it knew to MassDEP. Each failure to report is punishable by a criminal fine of up to $100,000.
A Middlesex Grand Jury returned indictments against Pan Am Railways, Inc. and three of its subsidiaries; Springfield Terminal Railway Company, Maine Central Railroad Company, and Boston & Maine Corporation, on April 1, 2008. On May 27, 2008, Pan Am Railways and three of its subsidiaries were arraigned in Middlesex Superior Court, at which time each corporate entity entered individual pleas of not guilty. The trial began on March 13, 2009, and lasted seven days. The jury deliberated for one hour and a half before reaching a verdict at approximately 2:00 p.m. on March 23, 2009. Yesterday, Judge Fahey sentenced the defendants in Middlesex Superior Court.
The Environmental Crimes Strike Force (ECSF) is an interagency unit that includes prosecutors from Attorney General Martha Coakley’s Office, Environmental Police Officers assigned to Attorney General Coakley’s Office, and investigators, engineers and attorneys from the MassDEP. The Strike Force investigates and prosecutes crimes that harms or threatens the environment, and that pose a significant threat to human health and safety. The ECSF is overseen by Attorney General Coakley, MassDEP Commissioner Laurie Burt, and Energy and Environmental Affairs Secretary Ian Bowles.
Members of the public who may have information of a potential environmental crime are encouraged to contact the MassDEP Environmental Strike Force Hotline at 1-888-VIOLATE (846-5283) or contact Attorney General Coakley’s Office at 617-727-2200.
This case was prosecuted by Assistant Attorney General Andrew Rainer, Chief of the Environmental Crimes Strike Force, and, Assistant Attorney General Wendoly Ortiz Langlois, of Attorney General Coakley’s Criminal Bureau. The investigation was conducted by MassDEP Investigators Robert Dunne and Dino DelleChiaie and Environmental Police assigned to the Attorney General’s Office.