TV
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
SDMS DocID 000212169
UNITED STATES OF AMERICA
Plaintiff and Counter-Defendant
vs ) Civ Action No 03 CV 1 1601 WGY
ATLAS TACK CORPORATION and M LEONARD LEWIS
Defendants and Counter-Plaintiffs
ATLAS TACK CORPORATION
Plaintiff
vs ) Civ Action No 01 CV 10501 WGY ) (lead case)
TOWN OF FAIRHAVEN
Defendant
STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGEMENT
RE LIABILITY OF M LEONARD LEWIS
Pursuant to LR 561 this Statement of Undisputed Facts is filed in support of Plaintiff s
Motion for Partial Summary Judgement Re Liability of Mr Lewis Exhibits are filed
separately1
As used herein and in the Motion Atlas Tack means Defendant Atlas Tack Corporation Lewis or Mr Lewis means Defendant M Leonard Lewis Site means the Atlas Tack Corporation Superfund Site in Fairhaven plant or Fairhaven Plant or Atlas Tack plant means the plant located at 83 Pleasant Street Fairhaven Massachusetts DEQE means the
1
1
GENERAL FACTS ABOUT MR LEWIS AND THE FACILITY
1 Mr Lewis is an individual who resides in the Commonwealth of Massachusetts
Mr Lewis has been the President of Atlas Tack since approximately June 1967 and has been a
Director of Atlas Tack
Answer (cf Complaint) ^ 5 16
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash 5667A (Mass Super Ct) December 21 1992 If 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 f 1
Exh 3 Trial Testimony of Lewis Atlas Tack Corp v Leon No (day 5 of trial) at 153 155
2 From 1967 until 1981 Mr Lewis was the sole shareholder of the common stock
of Atlas Tack In July of 1981 GNI Inc became the parent company of Atlas Tack Since
1981 Mr Lewis has been the sole shareholder of the common stock of GNI Inc
Answer (cf Complaint) 116
3 From 1967 to about 1972 Lewis visited the plant about once per week
(sometimes more often sometimes less often) Lewis visited the facility at least once per month
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 18
Exh 5 Deposition of Perry in this case June 28 2004 at 72 - 75
Exh 6 Declaration of Langiano July 13 2004 ^j 4
Massachusetts Department of Environmental Quality Engineering (DEQE) (DEQE subsequently became known as Massachusetts Department of Environmental Protection (DEP) Headings are provided to facilitate reading and are not intended to be undisputed facts
4 Lewis understood the process of the different departments at the factory During
the period from 1971 to 1974 Lewis attended about one-half of the monthly management
meetings at the plant Discussion at these meetings included a wide range of issues related to
the Atlas Tack plant including production and sales
Exh 5 Deposition of Perry in this case June 28 2004 at 72 - 75
Exh 6 Affidavit of Langiano July 13 2004 If 4
5 Mr Lewis was the boss when he was at the plant
Exh 6 Affidavit of Langiano July 13 2004 f 4
6 From 1967 until 1972 Lewis held meetings at the Atlas Tack Facility in
Fairhaven with the plant foremen several times per week Lewis asked questions about how
things were going at the plant during these meetings Plant foremen reported directly to Lewis
Exh 7 Deposition of Perry in Great Northern Industries Inc et al v Lexington Insurance Company Civil Action Nos 94mdash1268 and 91mdash5670 (Mass Super Ct) at 216-17 [ATC0009478]
Exh 5 Deposition of Perry in this case June 28 2004 at 71-72
7 From 1967 to 1974 wastes were dumped into the lagoon including 5-gallon cans
of waste naptha toluol and paint thinners Wastes were dumped onto the ground next to the
lagoon also Exh 6 Affidavit of Langiano July 13 2004 ^ 5
Exh 8 Affidavit of Rowell July 13 2004 ^ 8
8 In 1968 or 1969 a pipe in the interior of the facility (covered by a wall) broke and
spilled sulfuric acid into the soil or earth beneath the floor of the factory
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et sect1 No 91mdash5667A(Mass Super Ct) December 21 1992^51
Exh 9 Plaintiff s Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 17 (signed under oath by Mr Lewis)
DISCHARGES TO LAGOON AND BUZZARDS BAY
9 In approximately 1968 or 1969 Lewis instructed his employee Mr Perry to run a
blue dye through the discharge system to see if it came out in the lagoon Mr Perrys test
showed that waste waters discharged did empty to the lagoon
Exh 5 Deposition of Perry June 28 2004 at 74-78
10 The Lagoon was used by Atlas Tack to hold waste materials From the early
1940s to approximately 1979 wastes from Atlas Tacks manufacturing operations were
discharged into the lagoon The wastes which were discharged into the lagoon contained acids
heavy metals such as copper and zinc and solvents Some of the substances discharge into the
lagoon were hazardous Atlas Tack discharged process wastes used solvents heavy metals
acids chemicals and wastes into the lagoon at the Site in the ordinary course of its
manufacturing activities
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 at 3-5 Responses 7-12 and Responses 80-86 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 11
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 H 4-5
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 5-7
11 As of 1970 Atlas Tack used up to 80000 gallons per day of water from the town
and all but 3000 was discharged into lagoon on the Site
Exh 12 August 1970 Report on Sewer System Extension [EPA 000021shy26] at EPA00024
12 Lewis signed a November 29 1971 application to US Army Corps of Engineers
for a permit to discharge in navigable waters Lewis was the signing official and certified that
he was familiar with the information contained in the application and that it was true complete
and accurate The application showed that zinc copper and other substances were discharged
from the Lagoon to Buzzards bay Atlas subsequently forwarded the application to the Mass
Division of Water Pollution Control
Exh 13 November 29 1971 application to US Army Corps of Engineers for a permit [EPA 000039-43] (with cover letter dated January 14 1972)
13 On May 30 1972 Atlas sent further information to the to US Army Corps of
Engineers in furtherance of its permit application including chemical analysis of the plants
discharge The discharge included cyanide copper and other heavy metals
Exh 14 May 30 1972 letter from Kelley to Moehle with attached permit application [EPA 000051-58]
14 On August 2 1972 Atlas Tack submitted a revised permit application to the
Corps of Engineers The application showed that zinc copper and other substances were
discharged from the Lagoon to Buzzards bay Once again Lewis was the signing official
certifying that he was familiar with the information contained in the application
Exh 15 August 2 1972 letter from Kelley to Moehle with attached revised application [ATC 0018716-0018725] [EPA000064-67]
15 In September 1972 Atlas Tacks contractor (Metcalf amp Eddy) sampled and
analyzed the pond influent and effluent The Metcalf and Eddy samples were taken pursuant to a
request by Thomas C McMahon Director Massachusetts Water Resources Commission
Results showed that wastewater entering the pond contained copper zinc nickel aluminum and
cyanide Also wastewater flowing out of the pond into the ditch contained copper zinc nickel
aluminum and cyanide
Exh 16 Tibbetts Engineering Corp October 28 1973 Engineering Report [ATC 0020728-745] at 1 and Appendix B (Metcalf amp Eddy lab results) [ATC 0020741-44]
16 On August 6 1973 Lewis instructed his employees to hold any further payments
to Metcalf amp Eddy for the waste water sampling The hold could only be released by Lewis
Exh 17 August 6 1973 letter from Barry Controller of Atlas Tack to Lewis [ATC 0024607-08]
17 As of 1972 there was a 28900 gallon discharge per day and the lagoon was
providing little treatment Water quality parameters being violated included pH alkalinity and
heavy metals (copper zinc aluminum iron and cyanide)
Exh 18 August 5 1972 memo from William Marhoffer to McMahon [EPA000062-00063]
18 On August 2 1973 Thomas C McMahon Director Massachusetts Water
Resources Commission requested that Atlas Tack undertake studies of the effluent discharge to
the lagoon Atlas Tack retained Tibbetts engineering to study the discharges to the Lagoon On
about October 28 1973 Tibbetts Engineerings basic recommendation [was] that Atlas Tack tie
into the municipal sewer system and cease discharges to the lagoon
Exh 16 Engineering Corp October 28 1973 Engineering Report [ATC 0020728-745] at 6 [ATC 0020737] and App A [ATC 0020738-400]
19 On June 4 1975 US EPA issued to Atlas Tack a discharge permit with the
provision Atlas Tack cease discharge into Buzzards Bay and discharge effluents into Fairhaven
sewage system within thirty days
Exh 19 June 4 1975 discharge permit [EPA 000230-31 and 000217shy225] at EPA 000219
20 On or about August 9 1976 EPA issued a Findings of Violation and Order for
Compliance to Atlas Tack under the Federal Water Pollution Act 33 USC 1319(a)(3) The
301 (a) of the Federal Water Pollution Control Act because of its un-permitted discharge of
pollutants into Buzzards Bay
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 26-27 (signed under oath by Mr Lewis)
Exh 20 Findings and Order for Compliance [ATC 0019621]
21 On or about December 6 1976 EPA issued to Atlas Tack another discharge
permit this time with a more detailed schedule for tying into the Fairhaven sewer outfall by July
1977
Exh 21 December 6 1976 Permit [EPA 0003-347]
22 On March 8 1977 Lewis wrote to Thomas C McMahon Director
Massachusetts Water Resources Commission to request a revised limit for aluminum on Atlas
Tacks discharge permit Lewis had telephone calls on March 16 and 18 with Water Resources
Commission personnel about this issue
Exh 22 March 8 1977 Letter from Lewis to McMahon [EPA 000350]
23 On June 20 1977 Lewis wrote to McMahon to request that the current discharge
permit be extended and discussed months of negotiations regarding the potential connection
to the Town of Fairhaven sewer Lewis copied Leslie Carothers of EPA on this letter
Exh 23 [EPA000361-62] June 20 1977 Letter from Lewis to McMahon
24 On June 29 1977 Leslie Carothers of EPA wrote to Lewis in response to Lewiss
June 20th letter noting that had Atlas Tack proceeded in earnest to design and construct the
required treatment system it would not now be faced with a deadline it cannot meet
Carothers stated that Atlas Tacks failure to comply with the terms of its permit would be
addressed by the Massachusetts AGs office
Exh 24 June 29 1977 Letter Carothers to Lewis [EPA 000379]
25 Consistent with this letter on June 20 1977 McMahon requested that the
Attorney General file a legal action against Atlas Tack and copied Lewis on this letter A law
suit was filed on approximately February 1 1978 entitled McMahon and Bellotti v Atlas Tack
Corp
Exh 25 June 20 1977 letter from McMahon to Corkin [EPA 000357]
Exh 26 February 1 1978 Letter from Fry (Mass Attorney Generals Office) to McMahon with complaint [EPA 000389-427]
26 On March 9 1978 Lewis attended a meeting with the following Charles Corkin
II and Gloria Fry of the Massachusetts Attorney Generals office Robert Verkade of Tibbetts
Engineering Corp William A Slagel the Chief of Enforcement at the Massachusetts Division of
Water Pollution Control Sarah Simon from the EPA Permits Branch and Janet Sanderson of
EPAs Water Compliance Enforcement At this meeting it was agreed that Atlas Tack would
submit a wastewater analysis report
Exh 27 March 1 1978 letter from Fry to Lewis [EPA 000424] (setting up meeting) Attendance list for March 9 1978 meeting [EPA 000425]
and April 6 1978 letter from McMahon to Secor of Atlas Tack summarizing meeting March 9 meeting [EPA 000428]
27 On or about June 26 1978 Lewis signed an Agreement for Judgment with the
Director of the Division of Water Pollution Control and Attorney General of the Commonwealth
in a civil action entitled McMahon et al v Atlas Tack Corp No 26684 (Mass Super Ct)
Pursuant to the Agreement for Judgment Atlas Tack agreed to construct a wastewater treatment
facility and to connect its treated discharge to the Town of Fairhaven sewer outfall pursuant to a
stated schedule
Exh 28 June 22 1978 Agreement for Judgment [EPA 000437-440]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 30-32 (signed under oath by Mr Lewis)
Exh 29 Atlas Tack Corp v Commercial Union Ins Co et al Nos 91shy5666 91-5667 91-5669 (Mass Super Ct Sept 15 1993) Memorandum [ATC 0017291-0017307]
28 On July 19 1978 Lewis wrote to Sarah Simon of EPA and submitted Atlas
Tacks proposal for connection to the sewer outfall for final approval by the reviewing agencies
Lewis sent the same letter to McMahon
Exh 30 July 19 1978 Letter from Lewis to Simon and from Lewis to McMahon [EPA 000458-464]
29 On September 12 1978 McMahon wrote to Lewis to inform him that DWPC
could not approve Lewiss July 19 1978 letter for several reasons
Exh 31 September 12 1978 Letter from McMahon to Lewis [EPA 000470-71]
30 On September 25 1978 Lewis responded to McMahons September 12 1978
letter and stated that the final plans would be prepared by Tibbetts and will be submitted by
October 27 1978
Exh 32 September 25 1978 Letter Lewis to McMahon [EPA 000473]
31 On October 2 1978 John B Casazza (DWPC) wrote to Lewis in response to the
September 25 1978 letter from Lewis
Exh 33 October 2 1978 letter from Casazza to Lewis [EPA 000474]
32 On January 18 1979 McMahon wrote to Lewis to inform him that the plans
submitted by Tibbetts on October 24 1978 could not be approved for a number of stated
reasons
Exh 34 January 18 1979 Letter from McMahon to Lewis [EPA 000475shy77]
33 The plans were revised and resubmitted by Tibbetts who ensured that the
revisions were the direct outcome of [McMahons] comments made to Mr Leonard Lewis
President of Atlas Tack Corporation in the letter of January 18
Exh 35 March 6 1979 letter from Tibbetts to McMahon [EPA 000478shy79]
34 On March 21 1979 McMahon approved the plans with a number of conditions
The letter of approval was sent to Lewis
Exh 36 March 21 1979 letter from McMahon to Lewis [EPA 000480shy
81]
35 On May 4 1979 Lewis forwarded a letter quotation from Cape Construction amp
Engineering for the construction of the connection to the sewer outfall In the letter Lewis states
he expects that construction of the pre-treatment facility to be completed in accordance with the
10
timetable set forth in the Agreement for Judgment
Exh 37 May 4 1979 Letter from Lewis to McMahon [EPA 000485]
REMOVAL OF MATERIALS FROM LAGOON
36 During the 1980s Atlas had extensive discussions with DEQE relative to the
lagoon
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 U 12
37 On January 14 1981 the Commonwealth of Massachusetts DEQE notified Atlas
Tack that hazardous wastes were being stored in the lagoon
Exh 38 January 14 1981 Letter from Donovan to Atlas Tack (Secor) [EPA 000594-96]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 34-35 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
38 Lewis retained Edward McLaughlin an attorney from Herrick amp Smith about the
lagoon sludge issue
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 40
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 19921f4
39 On October 19 1982 DEQE notified Atlas Tack that the contents of the lagoon
11
fell within the jurisdiction of the hazardous waste regulations enclosing sampling results for
samples taken from lagoon in June 1982 DEQE stated that the contents of the lagoon exhibited
a potential harm to the environment resulting from improper storage and disposal DEQE
recommended that Atlas Tack hire an engineer to explore the closure of the waste lagoon
Exh 40 October 19 1982 Letter from DEQE to Atlas Tack [EPA 000654-55]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 37-40 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
40 In approximately 1982-83 Atlas retained the engineering firm Goldberg-Zoino
Associates Inc (GZA) to handle engineering and prepare a plan to clean up the sludge and
contaminated materials from the lagoon Lewis signed the agreement with GZA for the Lagoon
study
Exh 41 letter from GZA to Atlas Tack dated March 11 1983 approved by Lewis on March 22 1983 [ATC0008736-38]
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 1992 ^[5
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et lL No 91mdash5667A (Mass Super Ct) December 21 1992 t 14
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 8
Exh 42 Deposition of Powers in this case June 17 2004 at 11
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 U 7 [ATC 0012623shy0012628]
12
41 Lewis directed the activities of GZA
Exh 42 Deposition of Powers June 17 2004 at 16-18 (Q So is it fair to say that you would take direction from someone at Atlas with respect to those issues during the relevant period of time A While we were ~ fair to say we took directions on some issues correct Q Do you recall during this period of time whether you were taking direction more often from Mr Secor or Mr Lewis or did it change over time A Initially it was Mr Secor It appeared to change over time Q And how did it change over time A Mr Lewis became more involved)
42 Mr Lewis communicated with GZA and McLaughlin about the materials in the
lagoon between 1983 and 1985 Specifically GZA tested materials in the lagoon to determine
whether they were hazardous and communicated the results to Mr Lewis GZA and
McLaughlin advised Lewis regarding whether the wastes in the Lagoon were hazardous on
numerous occasion during the fall of 1983 through 1984
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994115
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 J 1
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v Mclaughlin et al No 91mdash5633 (Mass Super Ct) December 4 1992 ^j 9
43 On October 25 1983 DEQE requested that the Mass Attorney Generals Office
file suit against Atlas Tack regarding the Lagoon sludges
Exh 44 October 25 1983 Letter from Anderson to Leonard [EPA
000749-50]
44 On January 19 1984 McLaughlin wrote Lewis concerning their recent
telephone conversation about McLaughlins contacts with the Attorney Generals Office
regarding the Atlas Tack Lagoon sludges On April 23 1984 Lewis and McLaughlin had a
13
conversation about settlement of the lagoon pollution matter
Exh 45 January 19 1984 Letter from McLaughlin to Lewis [ATC 007809-7813]
Exh 46 April 24 1984 Letter McLaughlin to Lewis [no bates]
45 On July 2 1984 a Final Judgment (aka Consent Decree) between the
Commonwealth and Atlas Tack was entered in a civil action entitled Commonwealth of
Massachusetts v Atlas Tack Corp No 69523 (Mass Super Ct) Under that Consent Decree
Atlas Tack agreed to clean up the sludge and contaminated materials from the lagoon and
surrounding area at the site by September 7 1984 Lewis signed this Final Judgment
Exh 47 July 2 1984 Final judgment [EPA 000828-834]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 47 52 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 If 13
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
46 Mr Lewis discussed the Consent Decree with McLaughlin and specifically
McLaughlin assured [Mr Lewis] that this consent decree insured that the material in the lagoon
would be treated as special waste not hazardous waste
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 9
Exh 48 July 16 1984 letter from McGlaughlin to Lewis [ATC 007841shy43]
47 On September 12 1984 McLaughlin wrote to Lewis to report back as to a
14
telephone conference he had with Michael Powers (GZA) and AAG Ray Dougan McLaughlin
advises Lewis that it is now imperative that Atlas Tack submit a plan for excavation immediately
to DEQE and that the excavation commence as soon as feasible
Exh 49 September 12 1984 Letter from McLaughlin to Lewis [ATC 0008795-96]
48 On November 15 1984 McLaughlin wrote to Lewis concerning the lagoon
McLaughlin recommended that the cleanup continue expeditiously and be completed no later
that December 15 1984
Exh 50 November 15 1984 Letter McLaughlin to Lewis [EPA 000870shy71]
49 On December 13 1984 and January 11 1984 AAG Raymond Dougan wrote to
Lewis and Herrick amp Smith (McLaughlin and Patrick Butler) to notify them that Atlas Tack was
in non-compliance with the Consent Judgment Atlas Tack did not come close to compliance
with its obligations under the 1984 Consent Decree
Exh 51 December 13 1984 Letter from Dougan to Lewis [EPA 000877shy78]
Exh 52 January 11 1984 Letter from Dougan to Lewis [EPA 000916shy17]
Exh 53 Amended Memorandum of Decision and Order on Defendants Motion under GLc 231 sect 6 Atlas Tack Corp v Leon et al No 91mdash5632B (Mass Super Ct) March 28 1995 pp 3 21
50 Between late January and mid-February 1985 Atlas had a contractor perform a
mud wave operation which consisted of pushing the contents of the Lagoon onto the berm for
drying The drying cakes on the berm were not removed They drying material was at least
900 cubic yards
15
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
GENERAL FACTS ABOUT MR LEWIS AND THE FACILITY
1 Mr Lewis is an individual who resides in the Commonwealth of Massachusetts
Mr Lewis has been the President of Atlas Tack since approximately June 1967 and has been a
Director of Atlas Tack
Answer (cf Complaint) ^ 5 16
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash 5667A (Mass Super Ct) December 21 1992 If 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 f 1
Exh 3 Trial Testimony of Lewis Atlas Tack Corp v Leon No (day 5 of trial) at 153 155
2 From 1967 until 1981 Mr Lewis was the sole shareholder of the common stock
of Atlas Tack In July of 1981 GNI Inc became the parent company of Atlas Tack Since
1981 Mr Lewis has been the sole shareholder of the common stock of GNI Inc
Answer (cf Complaint) 116
3 From 1967 to about 1972 Lewis visited the plant about once per week
(sometimes more often sometimes less often) Lewis visited the facility at least once per month
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 18
Exh 5 Deposition of Perry in this case June 28 2004 at 72 - 75
Exh 6 Declaration of Langiano July 13 2004 ^j 4
Massachusetts Department of Environmental Quality Engineering (DEQE) (DEQE subsequently became known as Massachusetts Department of Environmental Protection (DEP) Headings are provided to facilitate reading and are not intended to be undisputed facts
4 Lewis understood the process of the different departments at the factory During
the period from 1971 to 1974 Lewis attended about one-half of the monthly management
meetings at the plant Discussion at these meetings included a wide range of issues related to
the Atlas Tack plant including production and sales
Exh 5 Deposition of Perry in this case June 28 2004 at 72 - 75
Exh 6 Affidavit of Langiano July 13 2004 If 4
5 Mr Lewis was the boss when he was at the plant
Exh 6 Affidavit of Langiano July 13 2004 f 4
6 From 1967 until 1972 Lewis held meetings at the Atlas Tack Facility in
Fairhaven with the plant foremen several times per week Lewis asked questions about how
things were going at the plant during these meetings Plant foremen reported directly to Lewis
Exh 7 Deposition of Perry in Great Northern Industries Inc et al v Lexington Insurance Company Civil Action Nos 94mdash1268 and 91mdash5670 (Mass Super Ct) at 216-17 [ATC0009478]
Exh 5 Deposition of Perry in this case June 28 2004 at 71-72
7 From 1967 to 1974 wastes were dumped into the lagoon including 5-gallon cans
of waste naptha toluol and paint thinners Wastes were dumped onto the ground next to the
lagoon also Exh 6 Affidavit of Langiano July 13 2004 ^ 5
Exh 8 Affidavit of Rowell July 13 2004 ^ 8
8 In 1968 or 1969 a pipe in the interior of the facility (covered by a wall) broke and
spilled sulfuric acid into the soil or earth beneath the floor of the factory
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et sect1 No 91mdash5667A(Mass Super Ct) December 21 1992^51
Exh 9 Plaintiff s Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 17 (signed under oath by Mr Lewis)
DISCHARGES TO LAGOON AND BUZZARDS BAY
9 In approximately 1968 or 1969 Lewis instructed his employee Mr Perry to run a
blue dye through the discharge system to see if it came out in the lagoon Mr Perrys test
showed that waste waters discharged did empty to the lagoon
Exh 5 Deposition of Perry June 28 2004 at 74-78
10 The Lagoon was used by Atlas Tack to hold waste materials From the early
1940s to approximately 1979 wastes from Atlas Tacks manufacturing operations were
discharged into the lagoon The wastes which were discharged into the lagoon contained acids
heavy metals such as copper and zinc and solvents Some of the substances discharge into the
lagoon were hazardous Atlas Tack discharged process wastes used solvents heavy metals
acids chemicals and wastes into the lagoon at the Site in the ordinary course of its
manufacturing activities
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 at 3-5 Responses 7-12 and Responses 80-86 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 11
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 H 4-5
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 5-7
11 As of 1970 Atlas Tack used up to 80000 gallons per day of water from the town
and all but 3000 was discharged into lagoon on the Site
Exh 12 August 1970 Report on Sewer System Extension [EPA 000021shy26] at EPA00024
12 Lewis signed a November 29 1971 application to US Army Corps of Engineers
for a permit to discharge in navigable waters Lewis was the signing official and certified that
he was familiar with the information contained in the application and that it was true complete
and accurate The application showed that zinc copper and other substances were discharged
from the Lagoon to Buzzards bay Atlas subsequently forwarded the application to the Mass
Division of Water Pollution Control
Exh 13 November 29 1971 application to US Army Corps of Engineers for a permit [EPA 000039-43] (with cover letter dated January 14 1972)
13 On May 30 1972 Atlas sent further information to the to US Army Corps of
Engineers in furtherance of its permit application including chemical analysis of the plants
discharge The discharge included cyanide copper and other heavy metals
Exh 14 May 30 1972 letter from Kelley to Moehle with attached permit application [EPA 000051-58]
14 On August 2 1972 Atlas Tack submitted a revised permit application to the
Corps of Engineers The application showed that zinc copper and other substances were
discharged from the Lagoon to Buzzards bay Once again Lewis was the signing official
certifying that he was familiar with the information contained in the application
Exh 15 August 2 1972 letter from Kelley to Moehle with attached revised application [ATC 0018716-0018725] [EPA000064-67]
15 In September 1972 Atlas Tacks contractor (Metcalf amp Eddy) sampled and
analyzed the pond influent and effluent The Metcalf and Eddy samples were taken pursuant to a
request by Thomas C McMahon Director Massachusetts Water Resources Commission
Results showed that wastewater entering the pond contained copper zinc nickel aluminum and
cyanide Also wastewater flowing out of the pond into the ditch contained copper zinc nickel
aluminum and cyanide
Exh 16 Tibbetts Engineering Corp October 28 1973 Engineering Report [ATC 0020728-745] at 1 and Appendix B (Metcalf amp Eddy lab results) [ATC 0020741-44]
16 On August 6 1973 Lewis instructed his employees to hold any further payments
to Metcalf amp Eddy for the waste water sampling The hold could only be released by Lewis
Exh 17 August 6 1973 letter from Barry Controller of Atlas Tack to Lewis [ATC 0024607-08]
17 As of 1972 there was a 28900 gallon discharge per day and the lagoon was
providing little treatment Water quality parameters being violated included pH alkalinity and
heavy metals (copper zinc aluminum iron and cyanide)
Exh 18 August 5 1972 memo from William Marhoffer to McMahon [EPA000062-00063]
18 On August 2 1973 Thomas C McMahon Director Massachusetts Water
Resources Commission requested that Atlas Tack undertake studies of the effluent discharge to
the lagoon Atlas Tack retained Tibbetts engineering to study the discharges to the Lagoon On
about October 28 1973 Tibbetts Engineerings basic recommendation [was] that Atlas Tack tie
into the municipal sewer system and cease discharges to the lagoon
Exh 16 Engineering Corp October 28 1973 Engineering Report [ATC 0020728-745] at 6 [ATC 0020737] and App A [ATC 0020738-400]
19 On June 4 1975 US EPA issued to Atlas Tack a discharge permit with the
provision Atlas Tack cease discharge into Buzzards Bay and discharge effluents into Fairhaven
sewage system within thirty days
Exh 19 June 4 1975 discharge permit [EPA 000230-31 and 000217shy225] at EPA 000219
20 On or about August 9 1976 EPA issued a Findings of Violation and Order for
Compliance to Atlas Tack under the Federal Water Pollution Act 33 USC 1319(a)(3) The
301 (a) of the Federal Water Pollution Control Act because of its un-permitted discharge of
pollutants into Buzzards Bay
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 26-27 (signed under oath by Mr Lewis)
Exh 20 Findings and Order for Compliance [ATC 0019621]
21 On or about December 6 1976 EPA issued to Atlas Tack another discharge
permit this time with a more detailed schedule for tying into the Fairhaven sewer outfall by July
1977
Exh 21 December 6 1976 Permit [EPA 0003-347]
22 On March 8 1977 Lewis wrote to Thomas C McMahon Director
Massachusetts Water Resources Commission to request a revised limit for aluminum on Atlas
Tacks discharge permit Lewis had telephone calls on March 16 and 18 with Water Resources
Commission personnel about this issue
Exh 22 March 8 1977 Letter from Lewis to McMahon [EPA 000350]
23 On June 20 1977 Lewis wrote to McMahon to request that the current discharge
permit be extended and discussed months of negotiations regarding the potential connection
to the Town of Fairhaven sewer Lewis copied Leslie Carothers of EPA on this letter
Exh 23 [EPA000361-62] June 20 1977 Letter from Lewis to McMahon
24 On June 29 1977 Leslie Carothers of EPA wrote to Lewis in response to Lewiss
June 20th letter noting that had Atlas Tack proceeded in earnest to design and construct the
required treatment system it would not now be faced with a deadline it cannot meet
Carothers stated that Atlas Tacks failure to comply with the terms of its permit would be
addressed by the Massachusetts AGs office
Exh 24 June 29 1977 Letter Carothers to Lewis [EPA 000379]
25 Consistent with this letter on June 20 1977 McMahon requested that the
Attorney General file a legal action against Atlas Tack and copied Lewis on this letter A law
suit was filed on approximately February 1 1978 entitled McMahon and Bellotti v Atlas Tack
Corp
Exh 25 June 20 1977 letter from McMahon to Corkin [EPA 000357]
Exh 26 February 1 1978 Letter from Fry (Mass Attorney Generals Office) to McMahon with complaint [EPA 000389-427]
26 On March 9 1978 Lewis attended a meeting with the following Charles Corkin
II and Gloria Fry of the Massachusetts Attorney Generals office Robert Verkade of Tibbetts
Engineering Corp William A Slagel the Chief of Enforcement at the Massachusetts Division of
Water Pollution Control Sarah Simon from the EPA Permits Branch and Janet Sanderson of
EPAs Water Compliance Enforcement At this meeting it was agreed that Atlas Tack would
submit a wastewater analysis report
Exh 27 March 1 1978 letter from Fry to Lewis [EPA 000424] (setting up meeting) Attendance list for March 9 1978 meeting [EPA 000425]
and April 6 1978 letter from McMahon to Secor of Atlas Tack summarizing meeting March 9 meeting [EPA 000428]
27 On or about June 26 1978 Lewis signed an Agreement for Judgment with the
Director of the Division of Water Pollution Control and Attorney General of the Commonwealth
in a civil action entitled McMahon et al v Atlas Tack Corp No 26684 (Mass Super Ct)
Pursuant to the Agreement for Judgment Atlas Tack agreed to construct a wastewater treatment
facility and to connect its treated discharge to the Town of Fairhaven sewer outfall pursuant to a
stated schedule
Exh 28 June 22 1978 Agreement for Judgment [EPA 000437-440]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 30-32 (signed under oath by Mr Lewis)
Exh 29 Atlas Tack Corp v Commercial Union Ins Co et al Nos 91shy5666 91-5667 91-5669 (Mass Super Ct Sept 15 1993) Memorandum [ATC 0017291-0017307]
28 On July 19 1978 Lewis wrote to Sarah Simon of EPA and submitted Atlas
Tacks proposal for connection to the sewer outfall for final approval by the reviewing agencies
Lewis sent the same letter to McMahon
Exh 30 July 19 1978 Letter from Lewis to Simon and from Lewis to McMahon [EPA 000458-464]
29 On September 12 1978 McMahon wrote to Lewis to inform him that DWPC
could not approve Lewiss July 19 1978 letter for several reasons
Exh 31 September 12 1978 Letter from McMahon to Lewis [EPA 000470-71]
30 On September 25 1978 Lewis responded to McMahons September 12 1978
letter and stated that the final plans would be prepared by Tibbetts and will be submitted by
October 27 1978
Exh 32 September 25 1978 Letter Lewis to McMahon [EPA 000473]
31 On October 2 1978 John B Casazza (DWPC) wrote to Lewis in response to the
September 25 1978 letter from Lewis
Exh 33 October 2 1978 letter from Casazza to Lewis [EPA 000474]
32 On January 18 1979 McMahon wrote to Lewis to inform him that the plans
submitted by Tibbetts on October 24 1978 could not be approved for a number of stated
reasons
Exh 34 January 18 1979 Letter from McMahon to Lewis [EPA 000475shy77]
33 The plans were revised and resubmitted by Tibbetts who ensured that the
revisions were the direct outcome of [McMahons] comments made to Mr Leonard Lewis
President of Atlas Tack Corporation in the letter of January 18
Exh 35 March 6 1979 letter from Tibbetts to McMahon [EPA 000478shy79]
34 On March 21 1979 McMahon approved the plans with a number of conditions
The letter of approval was sent to Lewis
Exh 36 March 21 1979 letter from McMahon to Lewis [EPA 000480shy
81]
35 On May 4 1979 Lewis forwarded a letter quotation from Cape Construction amp
Engineering for the construction of the connection to the sewer outfall In the letter Lewis states
he expects that construction of the pre-treatment facility to be completed in accordance with the
10
timetable set forth in the Agreement for Judgment
Exh 37 May 4 1979 Letter from Lewis to McMahon [EPA 000485]
REMOVAL OF MATERIALS FROM LAGOON
36 During the 1980s Atlas had extensive discussions with DEQE relative to the
lagoon
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 U 12
37 On January 14 1981 the Commonwealth of Massachusetts DEQE notified Atlas
Tack that hazardous wastes were being stored in the lagoon
Exh 38 January 14 1981 Letter from Donovan to Atlas Tack (Secor) [EPA 000594-96]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 34-35 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
38 Lewis retained Edward McLaughlin an attorney from Herrick amp Smith about the
lagoon sludge issue
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 40
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 19921f4
39 On October 19 1982 DEQE notified Atlas Tack that the contents of the lagoon
11
fell within the jurisdiction of the hazardous waste regulations enclosing sampling results for
samples taken from lagoon in June 1982 DEQE stated that the contents of the lagoon exhibited
a potential harm to the environment resulting from improper storage and disposal DEQE
recommended that Atlas Tack hire an engineer to explore the closure of the waste lagoon
Exh 40 October 19 1982 Letter from DEQE to Atlas Tack [EPA 000654-55]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 37-40 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
40 In approximately 1982-83 Atlas retained the engineering firm Goldberg-Zoino
Associates Inc (GZA) to handle engineering and prepare a plan to clean up the sludge and
contaminated materials from the lagoon Lewis signed the agreement with GZA for the Lagoon
study
Exh 41 letter from GZA to Atlas Tack dated March 11 1983 approved by Lewis on March 22 1983 [ATC0008736-38]
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 1992 ^[5
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et lL No 91mdash5667A (Mass Super Ct) December 21 1992 t 14
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 8
Exh 42 Deposition of Powers in this case June 17 2004 at 11
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 U 7 [ATC 0012623shy0012628]
12
41 Lewis directed the activities of GZA
Exh 42 Deposition of Powers June 17 2004 at 16-18 (Q So is it fair to say that you would take direction from someone at Atlas with respect to those issues during the relevant period of time A While we were ~ fair to say we took directions on some issues correct Q Do you recall during this period of time whether you were taking direction more often from Mr Secor or Mr Lewis or did it change over time A Initially it was Mr Secor It appeared to change over time Q And how did it change over time A Mr Lewis became more involved)
42 Mr Lewis communicated with GZA and McLaughlin about the materials in the
lagoon between 1983 and 1985 Specifically GZA tested materials in the lagoon to determine
whether they were hazardous and communicated the results to Mr Lewis GZA and
McLaughlin advised Lewis regarding whether the wastes in the Lagoon were hazardous on
numerous occasion during the fall of 1983 through 1984
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994115
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 J 1
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v Mclaughlin et al No 91mdash5633 (Mass Super Ct) December 4 1992 ^j 9
43 On October 25 1983 DEQE requested that the Mass Attorney Generals Office
file suit against Atlas Tack regarding the Lagoon sludges
Exh 44 October 25 1983 Letter from Anderson to Leonard [EPA
000749-50]
44 On January 19 1984 McLaughlin wrote Lewis concerning their recent
telephone conversation about McLaughlins contacts with the Attorney Generals Office
regarding the Atlas Tack Lagoon sludges On April 23 1984 Lewis and McLaughlin had a
13
conversation about settlement of the lagoon pollution matter
Exh 45 January 19 1984 Letter from McLaughlin to Lewis [ATC 007809-7813]
Exh 46 April 24 1984 Letter McLaughlin to Lewis [no bates]
45 On July 2 1984 a Final Judgment (aka Consent Decree) between the
Commonwealth and Atlas Tack was entered in a civil action entitled Commonwealth of
Massachusetts v Atlas Tack Corp No 69523 (Mass Super Ct) Under that Consent Decree
Atlas Tack agreed to clean up the sludge and contaminated materials from the lagoon and
surrounding area at the site by September 7 1984 Lewis signed this Final Judgment
Exh 47 July 2 1984 Final judgment [EPA 000828-834]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 47 52 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 If 13
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
46 Mr Lewis discussed the Consent Decree with McLaughlin and specifically
McLaughlin assured [Mr Lewis] that this consent decree insured that the material in the lagoon
would be treated as special waste not hazardous waste
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 9
Exh 48 July 16 1984 letter from McGlaughlin to Lewis [ATC 007841shy43]
47 On September 12 1984 McLaughlin wrote to Lewis to report back as to a
14
telephone conference he had with Michael Powers (GZA) and AAG Ray Dougan McLaughlin
advises Lewis that it is now imperative that Atlas Tack submit a plan for excavation immediately
to DEQE and that the excavation commence as soon as feasible
Exh 49 September 12 1984 Letter from McLaughlin to Lewis [ATC 0008795-96]
48 On November 15 1984 McLaughlin wrote to Lewis concerning the lagoon
McLaughlin recommended that the cleanup continue expeditiously and be completed no later
that December 15 1984
Exh 50 November 15 1984 Letter McLaughlin to Lewis [EPA 000870shy71]
49 On December 13 1984 and January 11 1984 AAG Raymond Dougan wrote to
Lewis and Herrick amp Smith (McLaughlin and Patrick Butler) to notify them that Atlas Tack was
in non-compliance with the Consent Judgment Atlas Tack did not come close to compliance
with its obligations under the 1984 Consent Decree
Exh 51 December 13 1984 Letter from Dougan to Lewis [EPA 000877shy78]
Exh 52 January 11 1984 Letter from Dougan to Lewis [EPA 000916shy17]
Exh 53 Amended Memorandum of Decision and Order on Defendants Motion under GLc 231 sect 6 Atlas Tack Corp v Leon et al No 91mdash5632B (Mass Super Ct) March 28 1995 pp 3 21
50 Between late January and mid-February 1985 Atlas had a contractor perform a
mud wave operation which consisted of pushing the contents of the Lagoon onto the berm for
drying The drying cakes on the berm were not removed They drying material was at least
900 cubic yards
15
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
4 Lewis understood the process of the different departments at the factory During
the period from 1971 to 1974 Lewis attended about one-half of the monthly management
meetings at the plant Discussion at these meetings included a wide range of issues related to
the Atlas Tack plant including production and sales
Exh 5 Deposition of Perry in this case June 28 2004 at 72 - 75
Exh 6 Affidavit of Langiano July 13 2004 If 4
5 Mr Lewis was the boss when he was at the plant
Exh 6 Affidavit of Langiano July 13 2004 f 4
6 From 1967 until 1972 Lewis held meetings at the Atlas Tack Facility in
Fairhaven with the plant foremen several times per week Lewis asked questions about how
things were going at the plant during these meetings Plant foremen reported directly to Lewis
Exh 7 Deposition of Perry in Great Northern Industries Inc et al v Lexington Insurance Company Civil Action Nos 94mdash1268 and 91mdash5670 (Mass Super Ct) at 216-17 [ATC0009478]
Exh 5 Deposition of Perry in this case June 28 2004 at 71-72
7 From 1967 to 1974 wastes were dumped into the lagoon including 5-gallon cans
of waste naptha toluol and paint thinners Wastes were dumped onto the ground next to the
lagoon also Exh 6 Affidavit of Langiano July 13 2004 ^ 5
Exh 8 Affidavit of Rowell July 13 2004 ^ 8
8 In 1968 or 1969 a pipe in the interior of the facility (covered by a wall) broke and
spilled sulfuric acid into the soil or earth beneath the floor of the factory
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et sect1 No 91mdash5667A(Mass Super Ct) December 21 1992^51
Exh 9 Plaintiff s Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 17 (signed under oath by Mr Lewis)
DISCHARGES TO LAGOON AND BUZZARDS BAY
9 In approximately 1968 or 1969 Lewis instructed his employee Mr Perry to run a
blue dye through the discharge system to see if it came out in the lagoon Mr Perrys test
showed that waste waters discharged did empty to the lagoon
Exh 5 Deposition of Perry June 28 2004 at 74-78
10 The Lagoon was used by Atlas Tack to hold waste materials From the early
1940s to approximately 1979 wastes from Atlas Tacks manufacturing operations were
discharged into the lagoon The wastes which were discharged into the lagoon contained acids
heavy metals such as copper and zinc and solvents Some of the substances discharge into the
lagoon were hazardous Atlas Tack discharged process wastes used solvents heavy metals
acids chemicals and wastes into the lagoon at the Site in the ordinary course of its
manufacturing activities
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 at 3-5 Responses 7-12 and Responses 80-86 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 11
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 H 4-5
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 5-7
11 As of 1970 Atlas Tack used up to 80000 gallons per day of water from the town
and all but 3000 was discharged into lagoon on the Site
Exh 12 August 1970 Report on Sewer System Extension [EPA 000021shy26] at EPA00024
12 Lewis signed a November 29 1971 application to US Army Corps of Engineers
for a permit to discharge in navigable waters Lewis was the signing official and certified that
he was familiar with the information contained in the application and that it was true complete
and accurate The application showed that zinc copper and other substances were discharged
from the Lagoon to Buzzards bay Atlas subsequently forwarded the application to the Mass
Division of Water Pollution Control
Exh 13 November 29 1971 application to US Army Corps of Engineers for a permit [EPA 000039-43] (with cover letter dated January 14 1972)
13 On May 30 1972 Atlas sent further information to the to US Army Corps of
Engineers in furtherance of its permit application including chemical analysis of the plants
discharge The discharge included cyanide copper and other heavy metals
Exh 14 May 30 1972 letter from Kelley to Moehle with attached permit application [EPA 000051-58]
14 On August 2 1972 Atlas Tack submitted a revised permit application to the
Corps of Engineers The application showed that zinc copper and other substances were
discharged from the Lagoon to Buzzards bay Once again Lewis was the signing official
certifying that he was familiar with the information contained in the application
Exh 15 August 2 1972 letter from Kelley to Moehle with attached revised application [ATC 0018716-0018725] [EPA000064-67]
15 In September 1972 Atlas Tacks contractor (Metcalf amp Eddy) sampled and
analyzed the pond influent and effluent The Metcalf and Eddy samples were taken pursuant to a
request by Thomas C McMahon Director Massachusetts Water Resources Commission
Results showed that wastewater entering the pond contained copper zinc nickel aluminum and
cyanide Also wastewater flowing out of the pond into the ditch contained copper zinc nickel
aluminum and cyanide
Exh 16 Tibbetts Engineering Corp October 28 1973 Engineering Report [ATC 0020728-745] at 1 and Appendix B (Metcalf amp Eddy lab results) [ATC 0020741-44]
16 On August 6 1973 Lewis instructed his employees to hold any further payments
to Metcalf amp Eddy for the waste water sampling The hold could only be released by Lewis
Exh 17 August 6 1973 letter from Barry Controller of Atlas Tack to Lewis [ATC 0024607-08]
17 As of 1972 there was a 28900 gallon discharge per day and the lagoon was
providing little treatment Water quality parameters being violated included pH alkalinity and
heavy metals (copper zinc aluminum iron and cyanide)
Exh 18 August 5 1972 memo from William Marhoffer to McMahon [EPA000062-00063]
18 On August 2 1973 Thomas C McMahon Director Massachusetts Water
Resources Commission requested that Atlas Tack undertake studies of the effluent discharge to
the lagoon Atlas Tack retained Tibbetts engineering to study the discharges to the Lagoon On
about October 28 1973 Tibbetts Engineerings basic recommendation [was] that Atlas Tack tie
into the municipal sewer system and cease discharges to the lagoon
Exh 16 Engineering Corp October 28 1973 Engineering Report [ATC 0020728-745] at 6 [ATC 0020737] and App A [ATC 0020738-400]
19 On June 4 1975 US EPA issued to Atlas Tack a discharge permit with the
provision Atlas Tack cease discharge into Buzzards Bay and discharge effluents into Fairhaven
sewage system within thirty days
Exh 19 June 4 1975 discharge permit [EPA 000230-31 and 000217shy225] at EPA 000219
20 On or about August 9 1976 EPA issued a Findings of Violation and Order for
Compliance to Atlas Tack under the Federal Water Pollution Act 33 USC 1319(a)(3) The
301 (a) of the Federal Water Pollution Control Act because of its un-permitted discharge of
pollutants into Buzzards Bay
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 26-27 (signed under oath by Mr Lewis)
Exh 20 Findings and Order for Compliance [ATC 0019621]
21 On or about December 6 1976 EPA issued to Atlas Tack another discharge
permit this time with a more detailed schedule for tying into the Fairhaven sewer outfall by July
1977
Exh 21 December 6 1976 Permit [EPA 0003-347]
22 On March 8 1977 Lewis wrote to Thomas C McMahon Director
Massachusetts Water Resources Commission to request a revised limit for aluminum on Atlas
Tacks discharge permit Lewis had telephone calls on March 16 and 18 with Water Resources
Commission personnel about this issue
Exh 22 March 8 1977 Letter from Lewis to McMahon [EPA 000350]
23 On June 20 1977 Lewis wrote to McMahon to request that the current discharge
permit be extended and discussed months of negotiations regarding the potential connection
to the Town of Fairhaven sewer Lewis copied Leslie Carothers of EPA on this letter
Exh 23 [EPA000361-62] June 20 1977 Letter from Lewis to McMahon
24 On June 29 1977 Leslie Carothers of EPA wrote to Lewis in response to Lewiss
June 20th letter noting that had Atlas Tack proceeded in earnest to design and construct the
required treatment system it would not now be faced with a deadline it cannot meet
Carothers stated that Atlas Tacks failure to comply with the terms of its permit would be
addressed by the Massachusetts AGs office
Exh 24 June 29 1977 Letter Carothers to Lewis [EPA 000379]
25 Consistent with this letter on June 20 1977 McMahon requested that the
Attorney General file a legal action against Atlas Tack and copied Lewis on this letter A law
suit was filed on approximately February 1 1978 entitled McMahon and Bellotti v Atlas Tack
Corp
Exh 25 June 20 1977 letter from McMahon to Corkin [EPA 000357]
Exh 26 February 1 1978 Letter from Fry (Mass Attorney Generals Office) to McMahon with complaint [EPA 000389-427]
26 On March 9 1978 Lewis attended a meeting with the following Charles Corkin
II and Gloria Fry of the Massachusetts Attorney Generals office Robert Verkade of Tibbetts
Engineering Corp William A Slagel the Chief of Enforcement at the Massachusetts Division of
Water Pollution Control Sarah Simon from the EPA Permits Branch and Janet Sanderson of
EPAs Water Compliance Enforcement At this meeting it was agreed that Atlas Tack would
submit a wastewater analysis report
Exh 27 March 1 1978 letter from Fry to Lewis [EPA 000424] (setting up meeting) Attendance list for March 9 1978 meeting [EPA 000425]
and April 6 1978 letter from McMahon to Secor of Atlas Tack summarizing meeting March 9 meeting [EPA 000428]
27 On or about June 26 1978 Lewis signed an Agreement for Judgment with the
Director of the Division of Water Pollution Control and Attorney General of the Commonwealth
in a civil action entitled McMahon et al v Atlas Tack Corp No 26684 (Mass Super Ct)
Pursuant to the Agreement for Judgment Atlas Tack agreed to construct a wastewater treatment
facility and to connect its treated discharge to the Town of Fairhaven sewer outfall pursuant to a
stated schedule
Exh 28 June 22 1978 Agreement for Judgment [EPA 000437-440]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 30-32 (signed under oath by Mr Lewis)
Exh 29 Atlas Tack Corp v Commercial Union Ins Co et al Nos 91shy5666 91-5667 91-5669 (Mass Super Ct Sept 15 1993) Memorandum [ATC 0017291-0017307]
28 On July 19 1978 Lewis wrote to Sarah Simon of EPA and submitted Atlas
Tacks proposal for connection to the sewer outfall for final approval by the reviewing agencies
Lewis sent the same letter to McMahon
Exh 30 July 19 1978 Letter from Lewis to Simon and from Lewis to McMahon [EPA 000458-464]
29 On September 12 1978 McMahon wrote to Lewis to inform him that DWPC
could not approve Lewiss July 19 1978 letter for several reasons
Exh 31 September 12 1978 Letter from McMahon to Lewis [EPA 000470-71]
30 On September 25 1978 Lewis responded to McMahons September 12 1978
letter and stated that the final plans would be prepared by Tibbetts and will be submitted by
October 27 1978
Exh 32 September 25 1978 Letter Lewis to McMahon [EPA 000473]
31 On October 2 1978 John B Casazza (DWPC) wrote to Lewis in response to the
September 25 1978 letter from Lewis
Exh 33 October 2 1978 letter from Casazza to Lewis [EPA 000474]
32 On January 18 1979 McMahon wrote to Lewis to inform him that the plans
submitted by Tibbetts on October 24 1978 could not be approved for a number of stated
reasons
Exh 34 January 18 1979 Letter from McMahon to Lewis [EPA 000475shy77]
33 The plans were revised and resubmitted by Tibbetts who ensured that the
revisions were the direct outcome of [McMahons] comments made to Mr Leonard Lewis
President of Atlas Tack Corporation in the letter of January 18
Exh 35 March 6 1979 letter from Tibbetts to McMahon [EPA 000478shy79]
34 On March 21 1979 McMahon approved the plans with a number of conditions
The letter of approval was sent to Lewis
Exh 36 March 21 1979 letter from McMahon to Lewis [EPA 000480shy
81]
35 On May 4 1979 Lewis forwarded a letter quotation from Cape Construction amp
Engineering for the construction of the connection to the sewer outfall In the letter Lewis states
he expects that construction of the pre-treatment facility to be completed in accordance with the
10
timetable set forth in the Agreement for Judgment
Exh 37 May 4 1979 Letter from Lewis to McMahon [EPA 000485]
REMOVAL OF MATERIALS FROM LAGOON
36 During the 1980s Atlas had extensive discussions with DEQE relative to the
lagoon
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 U 12
37 On January 14 1981 the Commonwealth of Massachusetts DEQE notified Atlas
Tack that hazardous wastes were being stored in the lagoon
Exh 38 January 14 1981 Letter from Donovan to Atlas Tack (Secor) [EPA 000594-96]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 34-35 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
38 Lewis retained Edward McLaughlin an attorney from Herrick amp Smith about the
lagoon sludge issue
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 40
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 19921f4
39 On October 19 1982 DEQE notified Atlas Tack that the contents of the lagoon
11
fell within the jurisdiction of the hazardous waste regulations enclosing sampling results for
samples taken from lagoon in June 1982 DEQE stated that the contents of the lagoon exhibited
a potential harm to the environment resulting from improper storage and disposal DEQE
recommended that Atlas Tack hire an engineer to explore the closure of the waste lagoon
Exh 40 October 19 1982 Letter from DEQE to Atlas Tack [EPA 000654-55]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 37-40 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
40 In approximately 1982-83 Atlas retained the engineering firm Goldberg-Zoino
Associates Inc (GZA) to handle engineering and prepare a plan to clean up the sludge and
contaminated materials from the lagoon Lewis signed the agreement with GZA for the Lagoon
study
Exh 41 letter from GZA to Atlas Tack dated March 11 1983 approved by Lewis on March 22 1983 [ATC0008736-38]
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 1992 ^[5
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et lL No 91mdash5667A (Mass Super Ct) December 21 1992 t 14
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 8
Exh 42 Deposition of Powers in this case June 17 2004 at 11
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 U 7 [ATC 0012623shy0012628]
12
41 Lewis directed the activities of GZA
Exh 42 Deposition of Powers June 17 2004 at 16-18 (Q So is it fair to say that you would take direction from someone at Atlas with respect to those issues during the relevant period of time A While we were ~ fair to say we took directions on some issues correct Q Do you recall during this period of time whether you were taking direction more often from Mr Secor or Mr Lewis or did it change over time A Initially it was Mr Secor It appeared to change over time Q And how did it change over time A Mr Lewis became more involved)
42 Mr Lewis communicated with GZA and McLaughlin about the materials in the
lagoon between 1983 and 1985 Specifically GZA tested materials in the lagoon to determine
whether they were hazardous and communicated the results to Mr Lewis GZA and
McLaughlin advised Lewis regarding whether the wastes in the Lagoon were hazardous on
numerous occasion during the fall of 1983 through 1984
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994115
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 J 1
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v Mclaughlin et al No 91mdash5633 (Mass Super Ct) December 4 1992 ^j 9
43 On October 25 1983 DEQE requested that the Mass Attorney Generals Office
file suit against Atlas Tack regarding the Lagoon sludges
Exh 44 October 25 1983 Letter from Anderson to Leonard [EPA
000749-50]
44 On January 19 1984 McLaughlin wrote Lewis concerning their recent
telephone conversation about McLaughlins contacts with the Attorney Generals Office
regarding the Atlas Tack Lagoon sludges On April 23 1984 Lewis and McLaughlin had a
13
conversation about settlement of the lagoon pollution matter
Exh 45 January 19 1984 Letter from McLaughlin to Lewis [ATC 007809-7813]
Exh 46 April 24 1984 Letter McLaughlin to Lewis [no bates]
45 On July 2 1984 a Final Judgment (aka Consent Decree) between the
Commonwealth and Atlas Tack was entered in a civil action entitled Commonwealth of
Massachusetts v Atlas Tack Corp No 69523 (Mass Super Ct) Under that Consent Decree
Atlas Tack agreed to clean up the sludge and contaminated materials from the lagoon and
surrounding area at the site by September 7 1984 Lewis signed this Final Judgment
Exh 47 July 2 1984 Final judgment [EPA 000828-834]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 47 52 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 If 13
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
46 Mr Lewis discussed the Consent Decree with McLaughlin and specifically
McLaughlin assured [Mr Lewis] that this consent decree insured that the material in the lagoon
would be treated as special waste not hazardous waste
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 9
Exh 48 July 16 1984 letter from McGlaughlin to Lewis [ATC 007841shy43]
47 On September 12 1984 McLaughlin wrote to Lewis to report back as to a
14
telephone conference he had with Michael Powers (GZA) and AAG Ray Dougan McLaughlin
advises Lewis that it is now imperative that Atlas Tack submit a plan for excavation immediately
to DEQE and that the excavation commence as soon as feasible
Exh 49 September 12 1984 Letter from McLaughlin to Lewis [ATC 0008795-96]
48 On November 15 1984 McLaughlin wrote to Lewis concerning the lagoon
McLaughlin recommended that the cleanup continue expeditiously and be completed no later
that December 15 1984
Exh 50 November 15 1984 Letter McLaughlin to Lewis [EPA 000870shy71]
49 On December 13 1984 and January 11 1984 AAG Raymond Dougan wrote to
Lewis and Herrick amp Smith (McLaughlin and Patrick Butler) to notify them that Atlas Tack was
in non-compliance with the Consent Judgment Atlas Tack did not come close to compliance
with its obligations under the 1984 Consent Decree
Exh 51 December 13 1984 Letter from Dougan to Lewis [EPA 000877shy78]
Exh 52 January 11 1984 Letter from Dougan to Lewis [EPA 000916shy17]
Exh 53 Amended Memorandum of Decision and Order on Defendants Motion under GLc 231 sect 6 Atlas Tack Corp v Leon et al No 91mdash5632B (Mass Super Ct) March 28 1995 pp 3 21
50 Between late January and mid-February 1985 Atlas had a contractor perform a
mud wave operation which consisted of pushing the contents of the Lagoon onto the berm for
drying The drying cakes on the berm were not removed They drying material was at least
900 cubic yards
15
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
Exh 9 Plaintiff s Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 17 (signed under oath by Mr Lewis)
DISCHARGES TO LAGOON AND BUZZARDS BAY
9 In approximately 1968 or 1969 Lewis instructed his employee Mr Perry to run a
blue dye through the discharge system to see if it came out in the lagoon Mr Perrys test
showed that waste waters discharged did empty to the lagoon
Exh 5 Deposition of Perry June 28 2004 at 74-78
10 The Lagoon was used by Atlas Tack to hold waste materials From the early
1940s to approximately 1979 wastes from Atlas Tacks manufacturing operations were
discharged into the lagoon The wastes which were discharged into the lagoon contained acids
heavy metals such as copper and zinc and solvents Some of the substances discharge into the
lagoon were hazardous Atlas Tack discharged process wastes used solvents heavy metals
acids chemicals and wastes into the lagoon at the Site in the ordinary course of its
manufacturing activities
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 at 3-5 Responses 7-12 and Responses 80-86 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 11
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 H 4-5
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 5-7
11 As of 1970 Atlas Tack used up to 80000 gallons per day of water from the town
and all but 3000 was discharged into lagoon on the Site
Exh 12 August 1970 Report on Sewer System Extension [EPA 000021shy26] at EPA00024
12 Lewis signed a November 29 1971 application to US Army Corps of Engineers
for a permit to discharge in navigable waters Lewis was the signing official and certified that
he was familiar with the information contained in the application and that it was true complete
and accurate The application showed that zinc copper and other substances were discharged
from the Lagoon to Buzzards bay Atlas subsequently forwarded the application to the Mass
Division of Water Pollution Control
Exh 13 November 29 1971 application to US Army Corps of Engineers for a permit [EPA 000039-43] (with cover letter dated January 14 1972)
13 On May 30 1972 Atlas sent further information to the to US Army Corps of
Engineers in furtherance of its permit application including chemical analysis of the plants
discharge The discharge included cyanide copper and other heavy metals
Exh 14 May 30 1972 letter from Kelley to Moehle with attached permit application [EPA 000051-58]
14 On August 2 1972 Atlas Tack submitted a revised permit application to the
Corps of Engineers The application showed that zinc copper and other substances were
discharged from the Lagoon to Buzzards bay Once again Lewis was the signing official
certifying that he was familiar with the information contained in the application
Exh 15 August 2 1972 letter from Kelley to Moehle with attached revised application [ATC 0018716-0018725] [EPA000064-67]
15 In September 1972 Atlas Tacks contractor (Metcalf amp Eddy) sampled and
analyzed the pond influent and effluent The Metcalf and Eddy samples were taken pursuant to a
request by Thomas C McMahon Director Massachusetts Water Resources Commission
Results showed that wastewater entering the pond contained copper zinc nickel aluminum and
cyanide Also wastewater flowing out of the pond into the ditch contained copper zinc nickel
aluminum and cyanide
Exh 16 Tibbetts Engineering Corp October 28 1973 Engineering Report [ATC 0020728-745] at 1 and Appendix B (Metcalf amp Eddy lab results) [ATC 0020741-44]
16 On August 6 1973 Lewis instructed his employees to hold any further payments
to Metcalf amp Eddy for the waste water sampling The hold could only be released by Lewis
Exh 17 August 6 1973 letter from Barry Controller of Atlas Tack to Lewis [ATC 0024607-08]
17 As of 1972 there was a 28900 gallon discharge per day and the lagoon was
providing little treatment Water quality parameters being violated included pH alkalinity and
heavy metals (copper zinc aluminum iron and cyanide)
Exh 18 August 5 1972 memo from William Marhoffer to McMahon [EPA000062-00063]
18 On August 2 1973 Thomas C McMahon Director Massachusetts Water
Resources Commission requested that Atlas Tack undertake studies of the effluent discharge to
the lagoon Atlas Tack retained Tibbetts engineering to study the discharges to the Lagoon On
about October 28 1973 Tibbetts Engineerings basic recommendation [was] that Atlas Tack tie
into the municipal sewer system and cease discharges to the lagoon
Exh 16 Engineering Corp October 28 1973 Engineering Report [ATC 0020728-745] at 6 [ATC 0020737] and App A [ATC 0020738-400]
19 On June 4 1975 US EPA issued to Atlas Tack a discharge permit with the
provision Atlas Tack cease discharge into Buzzards Bay and discharge effluents into Fairhaven
sewage system within thirty days
Exh 19 June 4 1975 discharge permit [EPA 000230-31 and 000217shy225] at EPA 000219
20 On or about August 9 1976 EPA issued a Findings of Violation and Order for
Compliance to Atlas Tack under the Federal Water Pollution Act 33 USC 1319(a)(3) The
301 (a) of the Federal Water Pollution Control Act because of its un-permitted discharge of
pollutants into Buzzards Bay
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 26-27 (signed under oath by Mr Lewis)
Exh 20 Findings and Order for Compliance [ATC 0019621]
21 On or about December 6 1976 EPA issued to Atlas Tack another discharge
permit this time with a more detailed schedule for tying into the Fairhaven sewer outfall by July
1977
Exh 21 December 6 1976 Permit [EPA 0003-347]
22 On March 8 1977 Lewis wrote to Thomas C McMahon Director
Massachusetts Water Resources Commission to request a revised limit for aluminum on Atlas
Tacks discharge permit Lewis had telephone calls on March 16 and 18 with Water Resources
Commission personnel about this issue
Exh 22 March 8 1977 Letter from Lewis to McMahon [EPA 000350]
23 On June 20 1977 Lewis wrote to McMahon to request that the current discharge
permit be extended and discussed months of negotiations regarding the potential connection
to the Town of Fairhaven sewer Lewis copied Leslie Carothers of EPA on this letter
Exh 23 [EPA000361-62] June 20 1977 Letter from Lewis to McMahon
24 On June 29 1977 Leslie Carothers of EPA wrote to Lewis in response to Lewiss
June 20th letter noting that had Atlas Tack proceeded in earnest to design and construct the
required treatment system it would not now be faced with a deadline it cannot meet
Carothers stated that Atlas Tacks failure to comply with the terms of its permit would be
addressed by the Massachusetts AGs office
Exh 24 June 29 1977 Letter Carothers to Lewis [EPA 000379]
25 Consistent with this letter on June 20 1977 McMahon requested that the
Attorney General file a legal action against Atlas Tack and copied Lewis on this letter A law
suit was filed on approximately February 1 1978 entitled McMahon and Bellotti v Atlas Tack
Corp
Exh 25 June 20 1977 letter from McMahon to Corkin [EPA 000357]
Exh 26 February 1 1978 Letter from Fry (Mass Attorney Generals Office) to McMahon with complaint [EPA 000389-427]
26 On March 9 1978 Lewis attended a meeting with the following Charles Corkin
II and Gloria Fry of the Massachusetts Attorney Generals office Robert Verkade of Tibbetts
Engineering Corp William A Slagel the Chief of Enforcement at the Massachusetts Division of
Water Pollution Control Sarah Simon from the EPA Permits Branch and Janet Sanderson of
EPAs Water Compliance Enforcement At this meeting it was agreed that Atlas Tack would
submit a wastewater analysis report
Exh 27 March 1 1978 letter from Fry to Lewis [EPA 000424] (setting up meeting) Attendance list for March 9 1978 meeting [EPA 000425]
and April 6 1978 letter from McMahon to Secor of Atlas Tack summarizing meeting March 9 meeting [EPA 000428]
27 On or about June 26 1978 Lewis signed an Agreement for Judgment with the
Director of the Division of Water Pollution Control and Attorney General of the Commonwealth
in a civil action entitled McMahon et al v Atlas Tack Corp No 26684 (Mass Super Ct)
Pursuant to the Agreement for Judgment Atlas Tack agreed to construct a wastewater treatment
facility and to connect its treated discharge to the Town of Fairhaven sewer outfall pursuant to a
stated schedule
Exh 28 June 22 1978 Agreement for Judgment [EPA 000437-440]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 30-32 (signed under oath by Mr Lewis)
Exh 29 Atlas Tack Corp v Commercial Union Ins Co et al Nos 91shy5666 91-5667 91-5669 (Mass Super Ct Sept 15 1993) Memorandum [ATC 0017291-0017307]
28 On July 19 1978 Lewis wrote to Sarah Simon of EPA and submitted Atlas
Tacks proposal for connection to the sewer outfall for final approval by the reviewing agencies
Lewis sent the same letter to McMahon
Exh 30 July 19 1978 Letter from Lewis to Simon and from Lewis to McMahon [EPA 000458-464]
29 On September 12 1978 McMahon wrote to Lewis to inform him that DWPC
could not approve Lewiss July 19 1978 letter for several reasons
Exh 31 September 12 1978 Letter from McMahon to Lewis [EPA 000470-71]
30 On September 25 1978 Lewis responded to McMahons September 12 1978
letter and stated that the final plans would be prepared by Tibbetts and will be submitted by
October 27 1978
Exh 32 September 25 1978 Letter Lewis to McMahon [EPA 000473]
31 On October 2 1978 John B Casazza (DWPC) wrote to Lewis in response to the
September 25 1978 letter from Lewis
Exh 33 October 2 1978 letter from Casazza to Lewis [EPA 000474]
32 On January 18 1979 McMahon wrote to Lewis to inform him that the plans
submitted by Tibbetts on October 24 1978 could not be approved for a number of stated
reasons
Exh 34 January 18 1979 Letter from McMahon to Lewis [EPA 000475shy77]
33 The plans were revised and resubmitted by Tibbetts who ensured that the
revisions were the direct outcome of [McMahons] comments made to Mr Leonard Lewis
President of Atlas Tack Corporation in the letter of January 18
Exh 35 March 6 1979 letter from Tibbetts to McMahon [EPA 000478shy79]
34 On March 21 1979 McMahon approved the plans with a number of conditions
The letter of approval was sent to Lewis
Exh 36 March 21 1979 letter from McMahon to Lewis [EPA 000480shy
81]
35 On May 4 1979 Lewis forwarded a letter quotation from Cape Construction amp
Engineering for the construction of the connection to the sewer outfall In the letter Lewis states
he expects that construction of the pre-treatment facility to be completed in accordance with the
10
timetable set forth in the Agreement for Judgment
Exh 37 May 4 1979 Letter from Lewis to McMahon [EPA 000485]
REMOVAL OF MATERIALS FROM LAGOON
36 During the 1980s Atlas had extensive discussions with DEQE relative to the
lagoon
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 U 12
37 On January 14 1981 the Commonwealth of Massachusetts DEQE notified Atlas
Tack that hazardous wastes were being stored in the lagoon
Exh 38 January 14 1981 Letter from Donovan to Atlas Tack (Secor) [EPA 000594-96]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 34-35 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
38 Lewis retained Edward McLaughlin an attorney from Herrick amp Smith about the
lagoon sludge issue
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 40
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 19921f4
39 On October 19 1982 DEQE notified Atlas Tack that the contents of the lagoon
11
fell within the jurisdiction of the hazardous waste regulations enclosing sampling results for
samples taken from lagoon in June 1982 DEQE stated that the contents of the lagoon exhibited
a potential harm to the environment resulting from improper storage and disposal DEQE
recommended that Atlas Tack hire an engineer to explore the closure of the waste lagoon
Exh 40 October 19 1982 Letter from DEQE to Atlas Tack [EPA 000654-55]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 37-40 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
40 In approximately 1982-83 Atlas retained the engineering firm Goldberg-Zoino
Associates Inc (GZA) to handle engineering and prepare a plan to clean up the sludge and
contaminated materials from the lagoon Lewis signed the agreement with GZA for the Lagoon
study
Exh 41 letter from GZA to Atlas Tack dated March 11 1983 approved by Lewis on March 22 1983 [ATC0008736-38]
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 1992 ^[5
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et lL No 91mdash5667A (Mass Super Ct) December 21 1992 t 14
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 8
Exh 42 Deposition of Powers in this case June 17 2004 at 11
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 U 7 [ATC 0012623shy0012628]
12
41 Lewis directed the activities of GZA
Exh 42 Deposition of Powers June 17 2004 at 16-18 (Q So is it fair to say that you would take direction from someone at Atlas with respect to those issues during the relevant period of time A While we were ~ fair to say we took directions on some issues correct Q Do you recall during this period of time whether you were taking direction more often from Mr Secor or Mr Lewis or did it change over time A Initially it was Mr Secor It appeared to change over time Q And how did it change over time A Mr Lewis became more involved)
42 Mr Lewis communicated with GZA and McLaughlin about the materials in the
lagoon between 1983 and 1985 Specifically GZA tested materials in the lagoon to determine
whether they were hazardous and communicated the results to Mr Lewis GZA and
McLaughlin advised Lewis regarding whether the wastes in the Lagoon were hazardous on
numerous occasion during the fall of 1983 through 1984
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994115
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 J 1
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v Mclaughlin et al No 91mdash5633 (Mass Super Ct) December 4 1992 ^j 9
43 On October 25 1983 DEQE requested that the Mass Attorney Generals Office
file suit against Atlas Tack regarding the Lagoon sludges
Exh 44 October 25 1983 Letter from Anderson to Leonard [EPA
000749-50]
44 On January 19 1984 McLaughlin wrote Lewis concerning their recent
telephone conversation about McLaughlins contacts with the Attorney Generals Office
regarding the Atlas Tack Lagoon sludges On April 23 1984 Lewis and McLaughlin had a
13
conversation about settlement of the lagoon pollution matter
Exh 45 January 19 1984 Letter from McLaughlin to Lewis [ATC 007809-7813]
Exh 46 April 24 1984 Letter McLaughlin to Lewis [no bates]
45 On July 2 1984 a Final Judgment (aka Consent Decree) between the
Commonwealth and Atlas Tack was entered in a civil action entitled Commonwealth of
Massachusetts v Atlas Tack Corp No 69523 (Mass Super Ct) Under that Consent Decree
Atlas Tack agreed to clean up the sludge and contaminated materials from the lagoon and
surrounding area at the site by September 7 1984 Lewis signed this Final Judgment
Exh 47 July 2 1984 Final judgment [EPA 000828-834]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 47 52 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 If 13
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
46 Mr Lewis discussed the Consent Decree with McLaughlin and specifically
McLaughlin assured [Mr Lewis] that this consent decree insured that the material in the lagoon
would be treated as special waste not hazardous waste
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 9
Exh 48 July 16 1984 letter from McGlaughlin to Lewis [ATC 007841shy43]
47 On September 12 1984 McLaughlin wrote to Lewis to report back as to a
14
telephone conference he had with Michael Powers (GZA) and AAG Ray Dougan McLaughlin
advises Lewis that it is now imperative that Atlas Tack submit a plan for excavation immediately
to DEQE and that the excavation commence as soon as feasible
Exh 49 September 12 1984 Letter from McLaughlin to Lewis [ATC 0008795-96]
48 On November 15 1984 McLaughlin wrote to Lewis concerning the lagoon
McLaughlin recommended that the cleanup continue expeditiously and be completed no later
that December 15 1984
Exh 50 November 15 1984 Letter McLaughlin to Lewis [EPA 000870shy71]
49 On December 13 1984 and January 11 1984 AAG Raymond Dougan wrote to
Lewis and Herrick amp Smith (McLaughlin and Patrick Butler) to notify them that Atlas Tack was
in non-compliance with the Consent Judgment Atlas Tack did not come close to compliance
with its obligations under the 1984 Consent Decree
Exh 51 December 13 1984 Letter from Dougan to Lewis [EPA 000877shy78]
Exh 52 January 11 1984 Letter from Dougan to Lewis [EPA 000916shy17]
Exh 53 Amended Memorandum of Decision and Order on Defendants Motion under GLc 231 sect 6 Atlas Tack Corp v Leon et al No 91mdash5632B (Mass Super Ct) March 28 1995 pp 3 21
50 Between late January and mid-February 1985 Atlas had a contractor perform a
mud wave operation which consisted of pushing the contents of the Lagoon onto the berm for
drying The drying cakes on the berm were not removed They drying material was at least
900 cubic yards
15
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
11 As of 1970 Atlas Tack used up to 80000 gallons per day of water from the town
and all but 3000 was discharged into lagoon on the Site
Exh 12 August 1970 Report on Sewer System Extension [EPA 000021shy26] at EPA00024
12 Lewis signed a November 29 1971 application to US Army Corps of Engineers
for a permit to discharge in navigable waters Lewis was the signing official and certified that
he was familiar with the information contained in the application and that it was true complete
and accurate The application showed that zinc copper and other substances were discharged
from the Lagoon to Buzzards bay Atlas subsequently forwarded the application to the Mass
Division of Water Pollution Control
Exh 13 November 29 1971 application to US Army Corps of Engineers for a permit [EPA 000039-43] (with cover letter dated January 14 1972)
13 On May 30 1972 Atlas sent further information to the to US Army Corps of
Engineers in furtherance of its permit application including chemical analysis of the plants
discharge The discharge included cyanide copper and other heavy metals
Exh 14 May 30 1972 letter from Kelley to Moehle with attached permit application [EPA 000051-58]
14 On August 2 1972 Atlas Tack submitted a revised permit application to the
Corps of Engineers The application showed that zinc copper and other substances were
discharged from the Lagoon to Buzzards bay Once again Lewis was the signing official
certifying that he was familiar with the information contained in the application
Exh 15 August 2 1972 letter from Kelley to Moehle with attached revised application [ATC 0018716-0018725] [EPA000064-67]
15 In September 1972 Atlas Tacks contractor (Metcalf amp Eddy) sampled and
analyzed the pond influent and effluent The Metcalf and Eddy samples were taken pursuant to a
request by Thomas C McMahon Director Massachusetts Water Resources Commission
Results showed that wastewater entering the pond contained copper zinc nickel aluminum and
cyanide Also wastewater flowing out of the pond into the ditch contained copper zinc nickel
aluminum and cyanide
Exh 16 Tibbetts Engineering Corp October 28 1973 Engineering Report [ATC 0020728-745] at 1 and Appendix B (Metcalf amp Eddy lab results) [ATC 0020741-44]
16 On August 6 1973 Lewis instructed his employees to hold any further payments
to Metcalf amp Eddy for the waste water sampling The hold could only be released by Lewis
Exh 17 August 6 1973 letter from Barry Controller of Atlas Tack to Lewis [ATC 0024607-08]
17 As of 1972 there was a 28900 gallon discharge per day and the lagoon was
providing little treatment Water quality parameters being violated included pH alkalinity and
heavy metals (copper zinc aluminum iron and cyanide)
Exh 18 August 5 1972 memo from William Marhoffer to McMahon [EPA000062-00063]
18 On August 2 1973 Thomas C McMahon Director Massachusetts Water
Resources Commission requested that Atlas Tack undertake studies of the effluent discharge to
the lagoon Atlas Tack retained Tibbetts engineering to study the discharges to the Lagoon On
about October 28 1973 Tibbetts Engineerings basic recommendation [was] that Atlas Tack tie
into the municipal sewer system and cease discharges to the lagoon
Exh 16 Engineering Corp October 28 1973 Engineering Report [ATC 0020728-745] at 6 [ATC 0020737] and App A [ATC 0020738-400]
19 On June 4 1975 US EPA issued to Atlas Tack a discharge permit with the
provision Atlas Tack cease discharge into Buzzards Bay and discharge effluents into Fairhaven
sewage system within thirty days
Exh 19 June 4 1975 discharge permit [EPA 000230-31 and 000217shy225] at EPA 000219
20 On or about August 9 1976 EPA issued a Findings of Violation and Order for
Compliance to Atlas Tack under the Federal Water Pollution Act 33 USC 1319(a)(3) The
301 (a) of the Federal Water Pollution Control Act because of its un-permitted discharge of
pollutants into Buzzards Bay
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 26-27 (signed under oath by Mr Lewis)
Exh 20 Findings and Order for Compliance [ATC 0019621]
21 On or about December 6 1976 EPA issued to Atlas Tack another discharge
permit this time with a more detailed schedule for tying into the Fairhaven sewer outfall by July
1977
Exh 21 December 6 1976 Permit [EPA 0003-347]
22 On March 8 1977 Lewis wrote to Thomas C McMahon Director
Massachusetts Water Resources Commission to request a revised limit for aluminum on Atlas
Tacks discharge permit Lewis had telephone calls on March 16 and 18 with Water Resources
Commission personnel about this issue
Exh 22 March 8 1977 Letter from Lewis to McMahon [EPA 000350]
23 On June 20 1977 Lewis wrote to McMahon to request that the current discharge
permit be extended and discussed months of negotiations regarding the potential connection
to the Town of Fairhaven sewer Lewis copied Leslie Carothers of EPA on this letter
Exh 23 [EPA000361-62] June 20 1977 Letter from Lewis to McMahon
24 On June 29 1977 Leslie Carothers of EPA wrote to Lewis in response to Lewiss
June 20th letter noting that had Atlas Tack proceeded in earnest to design and construct the
required treatment system it would not now be faced with a deadline it cannot meet
Carothers stated that Atlas Tacks failure to comply with the terms of its permit would be
addressed by the Massachusetts AGs office
Exh 24 June 29 1977 Letter Carothers to Lewis [EPA 000379]
25 Consistent with this letter on June 20 1977 McMahon requested that the
Attorney General file a legal action against Atlas Tack and copied Lewis on this letter A law
suit was filed on approximately February 1 1978 entitled McMahon and Bellotti v Atlas Tack
Corp
Exh 25 June 20 1977 letter from McMahon to Corkin [EPA 000357]
Exh 26 February 1 1978 Letter from Fry (Mass Attorney Generals Office) to McMahon with complaint [EPA 000389-427]
26 On March 9 1978 Lewis attended a meeting with the following Charles Corkin
II and Gloria Fry of the Massachusetts Attorney Generals office Robert Verkade of Tibbetts
Engineering Corp William A Slagel the Chief of Enforcement at the Massachusetts Division of
Water Pollution Control Sarah Simon from the EPA Permits Branch and Janet Sanderson of
EPAs Water Compliance Enforcement At this meeting it was agreed that Atlas Tack would
submit a wastewater analysis report
Exh 27 March 1 1978 letter from Fry to Lewis [EPA 000424] (setting up meeting) Attendance list for March 9 1978 meeting [EPA 000425]
and April 6 1978 letter from McMahon to Secor of Atlas Tack summarizing meeting March 9 meeting [EPA 000428]
27 On or about June 26 1978 Lewis signed an Agreement for Judgment with the
Director of the Division of Water Pollution Control and Attorney General of the Commonwealth
in a civil action entitled McMahon et al v Atlas Tack Corp No 26684 (Mass Super Ct)
Pursuant to the Agreement for Judgment Atlas Tack agreed to construct a wastewater treatment
facility and to connect its treated discharge to the Town of Fairhaven sewer outfall pursuant to a
stated schedule
Exh 28 June 22 1978 Agreement for Judgment [EPA 000437-440]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 30-32 (signed under oath by Mr Lewis)
Exh 29 Atlas Tack Corp v Commercial Union Ins Co et al Nos 91shy5666 91-5667 91-5669 (Mass Super Ct Sept 15 1993) Memorandum [ATC 0017291-0017307]
28 On July 19 1978 Lewis wrote to Sarah Simon of EPA and submitted Atlas
Tacks proposal for connection to the sewer outfall for final approval by the reviewing agencies
Lewis sent the same letter to McMahon
Exh 30 July 19 1978 Letter from Lewis to Simon and from Lewis to McMahon [EPA 000458-464]
29 On September 12 1978 McMahon wrote to Lewis to inform him that DWPC
could not approve Lewiss July 19 1978 letter for several reasons
Exh 31 September 12 1978 Letter from McMahon to Lewis [EPA 000470-71]
30 On September 25 1978 Lewis responded to McMahons September 12 1978
letter and stated that the final plans would be prepared by Tibbetts and will be submitted by
October 27 1978
Exh 32 September 25 1978 Letter Lewis to McMahon [EPA 000473]
31 On October 2 1978 John B Casazza (DWPC) wrote to Lewis in response to the
September 25 1978 letter from Lewis
Exh 33 October 2 1978 letter from Casazza to Lewis [EPA 000474]
32 On January 18 1979 McMahon wrote to Lewis to inform him that the plans
submitted by Tibbetts on October 24 1978 could not be approved for a number of stated
reasons
Exh 34 January 18 1979 Letter from McMahon to Lewis [EPA 000475shy77]
33 The plans were revised and resubmitted by Tibbetts who ensured that the
revisions were the direct outcome of [McMahons] comments made to Mr Leonard Lewis
President of Atlas Tack Corporation in the letter of January 18
Exh 35 March 6 1979 letter from Tibbetts to McMahon [EPA 000478shy79]
34 On March 21 1979 McMahon approved the plans with a number of conditions
The letter of approval was sent to Lewis
Exh 36 March 21 1979 letter from McMahon to Lewis [EPA 000480shy
81]
35 On May 4 1979 Lewis forwarded a letter quotation from Cape Construction amp
Engineering for the construction of the connection to the sewer outfall In the letter Lewis states
he expects that construction of the pre-treatment facility to be completed in accordance with the
10
timetable set forth in the Agreement for Judgment
Exh 37 May 4 1979 Letter from Lewis to McMahon [EPA 000485]
REMOVAL OF MATERIALS FROM LAGOON
36 During the 1980s Atlas had extensive discussions with DEQE relative to the
lagoon
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 U 12
37 On January 14 1981 the Commonwealth of Massachusetts DEQE notified Atlas
Tack that hazardous wastes were being stored in the lagoon
Exh 38 January 14 1981 Letter from Donovan to Atlas Tack (Secor) [EPA 000594-96]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 34-35 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
38 Lewis retained Edward McLaughlin an attorney from Herrick amp Smith about the
lagoon sludge issue
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 40
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 19921f4
39 On October 19 1982 DEQE notified Atlas Tack that the contents of the lagoon
11
fell within the jurisdiction of the hazardous waste regulations enclosing sampling results for
samples taken from lagoon in June 1982 DEQE stated that the contents of the lagoon exhibited
a potential harm to the environment resulting from improper storage and disposal DEQE
recommended that Atlas Tack hire an engineer to explore the closure of the waste lagoon
Exh 40 October 19 1982 Letter from DEQE to Atlas Tack [EPA 000654-55]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 37-40 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
40 In approximately 1982-83 Atlas retained the engineering firm Goldberg-Zoino
Associates Inc (GZA) to handle engineering and prepare a plan to clean up the sludge and
contaminated materials from the lagoon Lewis signed the agreement with GZA for the Lagoon
study
Exh 41 letter from GZA to Atlas Tack dated March 11 1983 approved by Lewis on March 22 1983 [ATC0008736-38]
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 1992 ^[5
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et lL No 91mdash5667A (Mass Super Ct) December 21 1992 t 14
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 8
Exh 42 Deposition of Powers in this case June 17 2004 at 11
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 U 7 [ATC 0012623shy0012628]
12
41 Lewis directed the activities of GZA
Exh 42 Deposition of Powers June 17 2004 at 16-18 (Q So is it fair to say that you would take direction from someone at Atlas with respect to those issues during the relevant period of time A While we were ~ fair to say we took directions on some issues correct Q Do you recall during this period of time whether you were taking direction more often from Mr Secor or Mr Lewis or did it change over time A Initially it was Mr Secor It appeared to change over time Q And how did it change over time A Mr Lewis became more involved)
42 Mr Lewis communicated with GZA and McLaughlin about the materials in the
lagoon between 1983 and 1985 Specifically GZA tested materials in the lagoon to determine
whether they were hazardous and communicated the results to Mr Lewis GZA and
McLaughlin advised Lewis regarding whether the wastes in the Lagoon were hazardous on
numerous occasion during the fall of 1983 through 1984
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994115
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 J 1
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v Mclaughlin et al No 91mdash5633 (Mass Super Ct) December 4 1992 ^j 9
43 On October 25 1983 DEQE requested that the Mass Attorney Generals Office
file suit against Atlas Tack regarding the Lagoon sludges
Exh 44 October 25 1983 Letter from Anderson to Leonard [EPA
000749-50]
44 On January 19 1984 McLaughlin wrote Lewis concerning their recent
telephone conversation about McLaughlins contacts with the Attorney Generals Office
regarding the Atlas Tack Lagoon sludges On April 23 1984 Lewis and McLaughlin had a
13
conversation about settlement of the lagoon pollution matter
Exh 45 January 19 1984 Letter from McLaughlin to Lewis [ATC 007809-7813]
Exh 46 April 24 1984 Letter McLaughlin to Lewis [no bates]
45 On July 2 1984 a Final Judgment (aka Consent Decree) between the
Commonwealth and Atlas Tack was entered in a civil action entitled Commonwealth of
Massachusetts v Atlas Tack Corp No 69523 (Mass Super Ct) Under that Consent Decree
Atlas Tack agreed to clean up the sludge and contaminated materials from the lagoon and
surrounding area at the site by September 7 1984 Lewis signed this Final Judgment
Exh 47 July 2 1984 Final judgment [EPA 000828-834]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 47 52 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 If 13
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
46 Mr Lewis discussed the Consent Decree with McLaughlin and specifically
McLaughlin assured [Mr Lewis] that this consent decree insured that the material in the lagoon
would be treated as special waste not hazardous waste
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 9
Exh 48 July 16 1984 letter from McGlaughlin to Lewis [ATC 007841shy43]
47 On September 12 1984 McLaughlin wrote to Lewis to report back as to a
14
telephone conference he had with Michael Powers (GZA) and AAG Ray Dougan McLaughlin
advises Lewis that it is now imperative that Atlas Tack submit a plan for excavation immediately
to DEQE and that the excavation commence as soon as feasible
Exh 49 September 12 1984 Letter from McLaughlin to Lewis [ATC 0008795-96]
48 On November 15 1984 McLaughlin wrote to Lewis concerning the lagoon
McLaughlin recommended that the cleanup continue expeditiously and be completed no later
that December 15 1984
Exh 50 November 15 1984 Letter McLaughlin to Lewis [EPA 000870shy71]
49 On December 13 1984 and January 11 1984 AAG Raymond Dougan wrote to
Lewis and Herrick amp Smith (McLaughlin and Patrick Butler) to notify them that Atlas Tack was
in non-compliance with the Consent Judgment Atlas Tack did not come close to compliance
with its obligations under the 1984 Consent Decree
Exh 51 December 13 1984 Letter from Dougan to Lewis [EPA 000877shy78]
Exh 52 January 11 1984 Letter from Dougan to Lewis [EPA 000916shy17]
Exh 53 Amended Memorandum of Decision and Order on Defendants Motion under GLc 231 sect 6 Atlas Tack Corp v Leon et al No 91mdash5632B (Mass Super Ct) March 28 1995 pp 3 21
50 Between late January and mid-February 1985 Atlas had a contractor perform a
mud wave operation which consisted of pushing the contents of the Lagoon onto the berm for
drying The drying cakes on the berm were not removed They drying material was at least
900 cubic yards
15
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
analyzed the pond influent and effluent The Metcalf and Eddy samples were taken pursuant to a
request by Thomas C McMahon Director Massachusetts Water Resources Commission
Results showed that wastewater entering the pond contained copper zinc nickel aluminum and
cyanide Also wastewater flowing out of the pond into the ditch contained copper zinc nickel
aluminum and cyanide
Exh 16 Tibbetts Engineering Corp October 28 1973 Engineering Report [ATC 0020728-745] at 1 and Appendix B (Metcalf amp Eddy lab results) [ATC 0020741-44]
16 On August 6 1973 Lewis instructed his employees to hold any further payments
to Metcalf amp Eddy for the waste water sampling The hold could only be released by Lewis
Exh 17 August 6 1973 letter from Barry Controller of Atlas Tack to Lewis [ATC 0024607-08]
17 As of 1972 there was a 28900 gallon discharge per day and the lagoon was
providing little treatment Water quality parameters being violated included pH alkalinity and
heavy metals (copper zinc aluminum iron and cyanide)
Exh 18 August 5 1972 memo from William Marhoffer to McMahon [EPA000062-00063]
18 On August 2 1973 Thomas C McMahon Director Massachusetts Water
Resources Commission requested that Atlas Tack undertake studies of the effluent discharge to
the lagoon Atlas Tack retained Tibbetts engineering to study the discharges to the Lagoon On
about October 28 1973 Tibbetts Engineerings basic recommendation [was] that Atlas Tack tie
into the municipal sewer system and cease discharges to the lagoon
Exh 16 Engineering Corp October 28 1973 Engineering Report [ATC 0020728-745] at 6 [ATC 0020737] and App A [ATC 0020738-400]
19 On June 4 1975 US EPA issued to Atlas Tack a discharge permit with the
provision Atlas Tack cease discharge into Buzzards Bay and discharge effluents into Fairhaven
sewage system within thirty days
Exh 19 June 4 1975 discharge permit [EPA 000230-31 and 000217shy225] at EPA 000219
20 On or about August 9 1976 EPA issued a Findings of Violation and Order for
Compliance to Atlas Tack under the Federal Water Pollution Act 33 USC 1319(a)(3) The
301 (a) of the Federal Water Pollution Control Act because of its un-permitted discharge of
pollutants into Buzzards Bay
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 26-27 (signed under oath by Mr Lewis)
Exh 20 Findings and Order for Compliance [ATC 0019621]
21 On or about December 6 1976 EPA issued to Atlas Tack another discharge
permit this time with a more detailed schedule for tying into the Fairhaven sewer outfall by July
1977
Exh 21 December 6 1976 Permit [EPA 0003-347]
22 On March 8 1977 Lewis wrote to Thomas C McMahon Director
Massachusetts Water Resources Commission to request a revised limit for aluminum on Atlas
Tacks discharge permit Lewis had telephone calls on March 16 and 18 with Water Resources
Commission personnel about this issue
Exh 22 March 8 1977 Letter from Lewis to McMahon [EPA 000350]
23 On June 20 1977 Lewis wrote to McMahon to request that the current discharge
permit be extended and discussed months of negotiations regarding the potential connection
to the Town of Fairhaven sewer Lewis copied Leslie Carothers of EPA on this letter
Exh 23 [EPA000361-62] June 20 1977 Letter from Lewis to McMahon
24 On June 29 1977 Leslie Carothers of EPA wrote to Lewis in response to Lewiss
June 20th letter noting that had Atlas Tack proceeded in earnest to design and construct the
required treatment system it would not now be faced with a deadline it cannot meet
Carothers stated that Atlas Tacks failure to comply with the terms of its permit would be
addressed by the Massachusetts AGs office
Exh 24 June 29 1977 Letter Carothers to Lewis [EPA 000379]
25 Consistent with this letter on June 20 1977 McMahon requested that the
Attorney General file a legal action against Atlas Tack and copied Lewis on this letter A law
suit was filed on approximately February 1 1978 entitled McMahon and Bellotti v Atlas Tack
Corp
Exh 25 June 20 1977 letter from McMahon to Corkin [EPA 000357]
Exh 26 February 1 1978 Letter from Fry (Mass Attorney Generals Office) to McMahon with complaint [EPA 000389-427]
26 On March 9 1978 Lewis attended a meeting with the following Charles Corkin
II and Gloria Fry of the Massachusetts Attorney Generals office Robert Verkade of Tibbetts
Engineering Corp William A Slagel the Chief of Enforcement at the Massachusetts Division of
Water Pollution Control Sarah Simon from the EPA Permits Branch and Janet Sanderson of
EPAs Water Compliance Enforcement At this meeting it was agreed that Atlas Tack would
submit a wastewater analysis report
Exh 27 March 1 1978 letter from Fry to Lewis [EPA 000424] (setting up meeting) Attendance list for March 9 1978 meeting [EPA 000425]
and April 6 1978 letter from McMahon to Secor of Atlas Tack summarizing meeting March 9 meeting [EPA 000428]
27 On or about June 26 1978 Lewis signed an Agreement for Judgment with the
Director of the Division of Water Pollution Control and Attorney General of the Commonwealth
in a civil action entitled McMahon et al v Atlas Tack Corp No 26684 (Mass Super Ct)
Pursuant to the Agreement for Judgment Atlas Tack agreed to construct a wastewater treatment
facility and to connect its treated discharge to the Town of Fairhaven sewer outfall pursuant to a
stated schedule
Exh 28 June 22 1978 Agreement for Judgment [EPA 000437-440]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 30-32 (signed under oath by Mr Lewis)
Exh 29 Atlas Tack Corp v Commercial Union Ins Co et al Nos 91shy5666 91-5667 91-5669 (Mass Super Ct Sept 15 1993) Memorandum [ATC 0017291-0017307]
28 On July 19 1978 Lewis wrote to Sarah Simon of EPA and submitted Atlas
Tacks proposal for connection to the sewer outfall for final approval by the reviewing agencies
Lewis sent the same letter to McMahon
Exh 30 July 19 1978 Letter from Lewis to Simon and from Lewis to McMahon [EPA 000458-464]
29 On September 12 1978 McMahon wrote to Lewis to inform him that DWPC
could not approve Lewiss July 19 1978 letter for several reasons
Exh 31 September 12 1978 Letter from McMahon to Lewis [EPA 000470-71]
30 On September 25 1978 Lewis responded to McMahons September 12 1978
letter and stated that the final plans would be prepared by Tibbetts and will be submitted by
October 27 1978
Exh 32 September 25 1978 Letter Lewis to McMahon [EPA 000473]
31 On October 2 1978 John B Casazza (DWPC) wrote to Lewis in response to the
September 25 1978 letter from Lewis
Exh 33 October 2 1978 letter from Casazza to Lewis [EPA 000474]
32 On January 18 1979 McMahon wrote to Lewis to inform him that the plans
submitted by Tibbetts on October 24 1978 could not be approved for a number of stated
reasons
Exh 34 January 18 1979 Letter from McMahon to Lewis [EPA 000475shy77]
33 The plans were revised and resubmitted by Tibbetts who ensured that the
revisions were the direct outcome of [McMahons] comments made to Mr Leonard Lewis
President of Atlas Tack Corporation in the letter of January 18
Exh 35 March 6 1979 letter from Tibbetts to McMahon [EPA 000478shy79]
34 On March 21 1979 McMahon approved the plans with a number of conditions
The letter of approval was sent to Lewis
Exh 36 March 21 1979 letter from McMahon to Lewis [EPA 000480shy
81]
35 On May 4 1979 Lewis forwarded a letter quotation from Cape Construction amp
Engineering for the construction of the connection to the sewer outfall In the letter Lewis states
he expects that construction of the pre-treatment facility to be completed in accordance with the
10
timetable set forth in the Agreement for Judgment
Exh 37 May 4 1979 Letter from Lewis to McMahon [EPA 000485]
REMOVAL OF MATERIALS FROM LAGOON
36 During the 1980s Atlas had extensive discussions with DEQE relative to the
lagoon
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 U 12
37 On January 14 1981 the Commonwealth of Massachusetts DEQE notified Atlas
Tack that hazardous wastes were being stored in the lagoon
Exh 38 January 14 1981 Letter from Donovan to Atlas Tack (Secor) [EPA 000594-96]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 34-35 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
38 Lewis retained Edward McLaughlin an attorney from Herrick amp Smith about the
lagoon sludge issue
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 40
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 19921f4
39 On October 19 1982 DEQE notified Atlas Tack that the contents of the lagoon
11
fell within the jurisdiction of the hazardous waste regulations enclosing sampling results for
samples taken from lagoon in June 1982 DEQE stated that the contents of the lagoon exhibited
a potential harm to the environment resulting from improper storage and disposal DEQE
recommended that Atlas Tack hire an engineer to explore the closure of the waste lagoon
Exh 40 October 19 1982 Letter from DEQE to Atlas Tack [EPA 000654-55]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 37-40 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
40 In approximately 1982-83 Atlas retained the engineering firm Goldberg-Zoino
Associates Inc (GZA) to handle engineering and prepare a plan to clean up the sludge and
contaminated materials from the lagoon Lewis signed the agreement with GZA for the Lagoon
study
Exh 41 letter from GZA to Atlas Tack dated March 11 1983 approved by Lewis on March 22 1983 [ATC0008736-38]
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 1992 ^[5
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et lL No 91mdash5667A (Mass Super Ct) December 21 1992 t 14
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 8
Exh 42 Deposition of Powers in this case June 17 2004 at 11
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 U 7 [ATC 0012623shy0012628]
12
41 Lewis directed the activities of GZA
Exh 42 Deposition of Powers June 17 2004 at 16-18 (Q So is it fair to say that you would take direction from someone at Atlas with respect to those issues during the relevant period of time A While we were ~ fair to say we took directions on some issues correct Q Do you recall during this period of time whether you were taking direction more often from Mr Secor or Mr Lewis or did it change over time A Initially it was Mr Secor It appeared to change over time Q And how did it change over time A Mr Lewis became more involved)
42 Mr Lewis communicated with GZA and McLaughlin about the materials in the
lagoon between 1983 and 1985 Specifically GZA tested materials in the lagoon to determine
whether they were hazardous and communicated the results to Mr Lewis GZA and
McLaughlin advised Lewis regarding whether the wastes in the Lagoon were hazardous on
numerous occasion during the fall of 1983 through 1984
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994115
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 J 1
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v Mclaughlin et al No 91mdash5633 (Mass Super Ct) December 4 1992 ^j 9
43 On October 25 1983 DEQE requested that the Mass Attorney Generals Office
file suit against Atlas Tack regarding the Lagoon sludges
Exh 44 October 25 1983 Letter from Anderson to Leonard [EPA
000749-50]
44 On January 19 1984 McLaughlin wrote Lewis concerning their recent
telephone conversation about McLaughlins contacts with the Attorney Generals Office
regarding the Atlas Tack Lagoon sludges On April 23 1984 Lewis and McLaughlin had a
13
conversation about settlement of the lagoon pollution matter
Exh 45 January 19 1984 Letter from McLaughlin to Lewis [ATC 007809-7813]
Exh 46 April 24 1984 Letter McLaughlin to Lewis [no bates]
45 On July 2 1984 a Final Judgment (aka Consent Decree) between the
Commonwealth and Atlas Tack was entered in a civil action entitled Commonwealth of
Massachusetts v Atlas Tack Corp No 69523 (Mass Super Ct) Under that Consent Decree
Atlas Tack agreed to clean up the sludge and contaminated materials from the lagoon and
surrounding area at the site by September 7 1984 Lewis signed this Final Judgment
Exh 47 July 2 1984 Final judgment [EPA 000828-834]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 47 52 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 If 13
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
46 Mr Lewis discussed the Consent Decree with McLaughlin and specifically
McLaughlin assured [Mr Lewis] that this consent decree insured that the material in the lagoon
would be treated as special waste not hazardous waste
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 9
Exh 48 July 16 1984 letter from McGlaughlin to Lewis [ATC 007841shy43]
47 On September 12 1984 McLaughlin wrote to Lewis to report back as to a
14
telephone conference he had with Michael Powers (GZA) and AAG Ray Dougan McLaughlin
advises Lewis that it is now imperative that Atlas Tack submit a plan for excavation immediately
to DEQE and that the excavation commence as soon as feasible
Exh 49 September 12 1984 Letter from McLaughlin to Lewis [ATC 0008795-96]
48 On November 15 1984 McLaughlin wrote to Lewis concerning the lagoon
McLaughlin recommended that the cleanup continue expeditiously and be completed no later
that December 15 1984
Exh 50 November 15 1984 Letter McLaughlin to Lewis [EPA 000870shy71]
49 On December 13 1984 and January 11 1984 AAG Raymond Dougan wrote to
Lewis and Herrick amp Smith (McLaughlin and Patrick Butler) to notify them that Atlas Tack was
in non-compliance with the Consent Judgment Atlas Tack did not come close to compliance
with its obligations under the 1984 Consent Decree
Exh 51 December 13 1984 Letter from Dougan to Lewis [EPA 000877shy78]
Exh 52 January 11 1984 Letter from Dougan to Lewis [EPA 000916shy17]
Exh 53 Amended Memorandum of Decision and Order on Defendants Motion under GLc 231 sect 6 Atlas Tack Corp v Leon et al No 91mdash5632B (Mass Super Ct) March 28 1995 pp 3 21
50 Between late January and mid-February 1985 Atlas had a contractor perform a
mud wave operation which consisted of pushing the contents of the Lagoon onto the berm for
drying The drying cakes on the berm were not removed They drying material was at least
900 cubic yards
15
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
provision Atlas Tack cease discharge into Buzzards Bay and discharge effluents into Fairhaven
sewage system within thirty days
Exh 19 June 4 1975 discharge permit [EPA 000230-31 and 000217shy225] at EPA 000219
20 On or about August 9 1976 EPA issued a Findings of Violation and Order for
Compliance to Atlas Tack under the Federal Water Pollution Act 33 USC 1319(a)(3) The
301 (a) of the Federal Water Pollution Control Act because of its un-permitted discharge of
pollutants into Buzzards Bay
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 26-27 (signed under oath by Mr Lewis)
Exh 20 Findings and Order for Compliance [ATC 0019621]
21 On or about December 6 1976 EPA issued to Atlas Tack another discharge
permit this time with a more detailed schedule for tying into the Fairhaven sewer outfall by July
1977
Exh 21 December 6 1976 Permit [EPA 0003-347]
22 On March 8 1977 Lewis wrote to Thomas C McMahon Director
Massachusetts Water Resources Commission to request a revised limit for aluminum on Atlas
Tacks discharge permit Lewis had telephone calls on March 16 and 18 with Water Resources
Commission personnel about this issue
Exh 22 March 8 1977 Letter from Lewis to McMahon [EPA 000350]
23 On June 20 1977 Lewis wrote to McMahon to request that the current discharge
permit be extended and discussed months of negotiations regarding the potential connection
to the Town of Fairhaven sewer Lewis copied Leslie Carothers of EPA on this letter
Exh 23 [EPA000361-62] June 20 1977 Letter from Lewis to McMahon
24 On June 29 1977 Leslie Carothers of EPA wrote to Lewis in response to Lewiss
June 20th letter noting that had Atlas Tack proceeded in earnest to design and construct the
required treatment system it would not now be faced with a deadline it cannot meet
Carothers stated that Atlas Tacks failure to comply with the terms of its permit would be
addressed by the Massachusetts AGs office
Exh 24 June 29 1977 Letter Carothers to Lewis [EPA 000379]
25 Consistent with this letter on June 20 1977 McMahon requested that the
Attorney General file a legal action against Atlas Tack and copied Lewis on this letter A law
suit was filed on approximately February 1 1978 entitled McMahon and Bellotti v Atlas Tack
Corp
Exh 25 June 20 1977 letter from McMahon to Corkin [EPA 000357]
Exh 26 February 1 1978 Letter from Fry (Mass Attorney Generals Office) to McMahon with complaint [EPA 000389-427]
26 On March 9 1978 Lewis attended a meeting with the following Charles Corkin
II and Gloria Fry of the Massachusetts Attorney Generals office Robert Verkade of Tibbetts
Engineering Corp William A Slagel the Chief of Enforcement at the Massachusetts Division of
Water Pollution Control Sarah Simon from the EPA Permits Branch and Janet Sanderson of
EPAs Water Compliance Enforcement At this meeting it was agreed that Atlas Tack would
submit a wastewater analysis report
Exh 27 March 1 1978 letter from Fry to Lewis [EPA 000424] (setting up meeting) Attendance list for March 9 1978 meeting [EPA 000425]
and April 6 1978 letter from McMahon to Secor of Atlas Tack summarizing meeting March 9 meeting [EPA 000428]
27 On or about June 26 1978 Lewis signed an Agreement for Judgment with the
Director of the Division of Water Pollution Control and Attorney General of the Commonwealth
in a civil action entitled McMahon et al v Atlas Tack Corp No 26684 (Mass Super Ct)
Pursuant to the Agreement for Judgment Atlas Tack agreed to construct a wastewater treatment
facility and to connect its treated discharge to the Town of Fairhaven sewer outfall pursuant to a
stated schedule
Exh 28 June 22 1978 Agreement for Judgment [EPA 000437-440]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 30-32 (signed under oath by Mr Lewis)
Exh 29 Atlas Tack Corp v Commercial Union Ins Co et al Nos 91shy5666 91-5667 91-5669 (Mass Super Ct Sept 15 1993) Memorandum [ATC 0017291-0017307]
28 On July 19 1978 Lewis wrote to Sarah Simon of EPA and submitted Atlas
Tacks proposal for connection to the sewer outfall for final approval by the reviewing agencies
Lewis sent the same letter to McMahon
Exh 30 July 19 1978 Letter from Lewis to Simon and from Lewis to McMahon [EPA 000458-464]
29 On September 12 1978 McMahon wrote to Lewis to inform him that DWPC
could not approve Lewiss July 19 1978 letter for several reasons
Exh 31 September 12 1978 Letter from McMahon to Lewis [EPA 000470-71]
30 On September 25 1978 Lewis responded to McMahons September 12 1978
letter and stated that the final plans would be prepared by Tibbetts and will be submitted by
October 27 1978
Exh 32 September 25 1978 Letter Lewis to McMahon [EPA 000473]
31 On October 2 1978 John B Casazza (DWPC) wrote to Lewis in response to the
September 25 1978 letter from Lewis
Exh 33 October 2 1978 letter from Casazza to Lewis [EPA 000474]
32 On January 18 1979 McMahon wrote to Lewis to inform him that the plans
submitted by Tibbetts on October 24 1978 could not be approved for a number of stated
reasons
Exh 34 January 18 1979 Letter from McMahon to Lewis [EPA 000475shy77]
33 The plans were revised and resubmitted by Tibbetts who ensured that the
revisions were the direct outcome of [McMahons] comments made to Mr Leonard Lewis
President of Atlas Tack Corporation in the letter of January 18
Exh 35 March 6 1979 letter from Tibbetts to McMahon [EPA 000478shy79]
34 On March 21 1979 McMahon approved the plans with a number of conditions
The letter of approval was sent to Lewis
Exh 36 March 21 1979 letter from McMahon to Lewis [EPA 000480shy
81]
35 On May 4 1979 Lewis forwarded a letter quotation from Cape Construction amp
Engineering for the construction of the connection to the sewer outfall In the letter Lewis states
he expects that construction of the pre-treatment facility to be completed in accordance with the
10
timetable set forth in the Agreement for Judgment
Exh 37 May 4 1979 Letter from Lewis to McMahon [EPA 000485]
REMOVAL OF MATERIALS FROM LAGOON
36 During the 1980s Atlas had extensive discussions with DEQE relative to the
lagoon
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 U 12
37 On January 14 1981 the Commonwealth of Massachusetts DEQE notified Atlas
Tack that hazardous wastes were being stored in the lagoon
Exh 38 January 14 1981 Letter from Donovan to Atlas Tack (Secor) [EPA 000594-96]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 34-35 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
38 Lewis retained Edward McLaughlin an attorney from Herrick amp Smith about the
lagoon sludge issue
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 40
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 19921f4
39 On October 19 1982 DEQE notified Atlas Tack that the contents of the lagoon
11
fell within the jurisdiction of the hazardous waste regulations enclosing sampling results for
samples taken from lagoon in June 1982 DEQE stated that the contents of the lagoon exhibited
a potential harm to the environment resulting from improper storage and disposal DEQE
recommended that Atlas Tack hire an engineer to explore the closure of the waste lagoon
Exh 40 October 19 1982 Letter from DEQE to Atlas Tack [EPA 000654-55]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 37-40 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
40 In approximately 1982-83 Atlas retained the engineering firm Goldberg-Zoino
Associates Inc (GZA) to handle engineering and prepare a plan to clean up the sludge and
contaminated materials from the lagoon Lewis signed the agreement with GZA for the Lagoon
study
Exh 41 letter from GZA to Atlas Tack dated March 11 1983 approved by Lewis on March 22 1983 [ATC0008736-38]
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 1992 ^[5
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et lL No 91mdash5667A (Mass Super Ct) December 21 1992 t 14
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 8
Exh 42 Deposition of Powers in this case June 17 2004 at 11
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 U 7 [ATC 0012623shy0012628]
12
41 Lewis directed the activities of GZA
Exh 42 Deposition of Powers June 17 2004 at 16-18 (Q So is it fair to say that you would take direction from someone at Atlas with respect to those issues during the relevant period of time A While we were ~ fair to say we took directions on some issues correct Q Do you recall during this period of time whether you were taking direction more often from Mr Secor or Mr Lewis or did it change over time A Initially it was Mr Secor It appeared to change over time Q And how did it change over time A Mr Lewis became more involved)
42 Mr Lewis communicated with GZA and McLaughlin about the materials in the
lagoon between 1983 and 1985 Specifically GZA tested materials in the lagoon to determine
whether they were hazardous and communicated the results to Mr Lewis GZA and
McLaughlin advised Lewis regarding whether the wastes in the Lagoon were hazardous on
numerous occasion during the fall of 1983 through 1984
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994115
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 J 1
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v Mclaughlin et al No 91mdash5633 (Mass Super Ct) December 4 1992 ^j 9
43 On October 25 1983 DEQE requested that the Mass Attorney Generals Office
file suit against Atlas Tack regarding the Lagoon sludges
Exh 44 October 25 1983 Letter from Anderson to Leonard [EPA
000749-50]
44 On January 19 1984 McLaughlin wrote Lewis concerning their recent
telephone conversation about McLaughlins contacts with the Attorney Generals Office
regarding the Atlas Tack Lagoon sludges On April 23 1984 Lewis and McLaughlin had a
13
conversation about settlement of the lagoon pollution matter
Exh 45 January 19 1984 Letter from McLaughlin to Lewis [ATC 007809-7813]
Exh 46 April 24 1984 Letter McLaughlin to Lewis [no bates]
45 On July 2 1984 a Final Judgment (aka Consent Decree) between the
Commonwealth and Atlas Tack was entered in a civil action entitled Commonwealth of
Massachusetts v Atlas Tack Corp No 69523 (Mass Super Ct) Under that Consent Decree
Atlas Tack agreed to clean up the sludge and contaminated materials from the lagoon and
surrounding area at the site by September 7 1984 Lewis signed this Final Judgment
Exh 47 July 2 1984 Final judgment [EPA 000828-834]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 47 52 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 If 13
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
46 Mr Lewis discussed the Consent Decree with McLaughlin and specifically
McLaughlin assured [Mr Lewis] that this consent decree insured that the material in the lagoon
would be treated as special waste not hazardous waste
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 9
Exh 48 July 16 1984 letter from McGlaughlin to Lewis [ATC 007841shy43]
47 On September 12 1984 McLaughlin wrote to Lewis to report back as to a
14
telephone conference he had with Michael Powers (GZA) and AAG Ray Dougan McLaughlin
advises Lewis that it is now imperative that Atlas Tack submit a plan for excavation immediately
to DEQE and that the excavation commence as soon as feasible
Exh 49 September 12 1984 Letter from McLaughlin to Lewis [ATC 0008795-96]
48 On November 15 1984 McLaughlin wrote to Lewis concerning the lagoon
McLaughlin recommended that the cleanup continue expeditiously and be completed no later
that December 15 1984
Exh 50 November 15 1984 Letter McLaughlin to Lewis [EPA 000870shy71]
49 On December 13 1984 and January 11 1984 AAG Raymond Dougan wrote to
Lewis and Herrick amp Smith (McLaughlin and Patrick Butler) to notify them that Atlas Tack was
in non-compliance with the Consent Judgment Atlas Tack did not come close to compliance
with its obligations under the 1984 Consent Decree
Exh 51 December 13 1984 Letter from Dougan to Lewis [EPA 000877shy78]
Exh 52 January 11 1984 Letter from Dougan to Lewis [EPA 000916shy17]
Exh 53 Amended Memorandum of Decision and Order on Defendants Motion under GLc 231 sect 6 Atlas Tack Corp v Leon et al No 91mdash5632B (Mass Super Ct) March 28 1995 pp 3 21
50 Between late January and mid-February 1985 Atlas had a contractor perform a
mud wave operation which consisted of pushing the contents of the Lagoon onto the berm for
drying The drying cakes on the berm were not removed They drying material was at least
900 cubic yards
15
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
to the Town of Fairhaven sewer Lewis copied Leslie Carothers of EPA on this letter
Exh 23 [EPA000361-62] June 20 1977 Letter from Lewis to McMahon
24 On June 29 1977 Leslie Carothers of EPA wrote to Lewis in response to Lewiss
June 20th letter noting that had Atlas Tack proceeded in earnest to design and construct the
required treatment system it would not now be faced with a deadline it cannot meet
Carothers stated that Atlas Tacks failure to comply with the terms of its permit would be
addressed by the Massachusetts AGs office
Exh 24 June 29 1977 Letter Carothers to Lewis [EPA 000379]
25 Consistent with this letter on June 20 1977 McMahon requested that the
Attorney General file a legal action against Atlas Tack and copied Lewis on this letter A law
suit was filed on approximately February 1 1978 entitled McMahon and Bellotti v Atlas Tack
Corp
Exh 25 June 20 1977 letter from McMahon to Corkin [EPA 000357]
Exh 26 February 1 1978 Letter from Fry (Mass Attorney Generals Office) to McMahon with complaint [EPA 000389-427]
26 On March 9 1978 Lewis attended a meeting with the following Charles Corkin
II and Gloria Fry of the Massachusetts Attorney Generals office Robert Verkade of Tibbetts
Engineering Corp William A Slagel the Chief of Enforcement at the Massachusetts Division of
Water Pollution Control Sarah Simon from the EPA Permits Branch and Janet Sanderson of
EPAs Water Compliance Enforcement At this meeting it was agreed that Atlas Tack would
submit a wastewater analysis report
Exh 27 March 1 1978 letter from Fry to Lewis [EPA 000424] (setting up meeting) Attendance list for March 9 1978 meeting [EPA 000425]
and April 6 1978 letter from McMahon to Secor of Atlas Tack summarizing meeting March 9 meeting [EPA 000428]
27 On or about June 26 1978 Lewis signed an Agreement for Judgment with the
Director of the Division of Water Pollution Control and Attorney General of the Commonwealth
in a civil action entitled McMahon et al v Atlas Tack Corp No 26684 (Mass Super Ct)
Pursuant to the Agreement for Judgment Atlas Tack agreed to construct a wastewater treatment
facility and to connect its treated discharge to the Town of Fairhaven sewer outfall pursuant to a
stated schedule
Exh 28 June 22 1978 Agreement for Judgment [EPA 000437-440]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 30-32 (signed under oath by Mr Lewis)
Exh 29 Atlas Tack Corp v Commercial Union Ins Co et al Nos 91shy5666 91-5667 91-5669 (Mass Super Ct Sept 15 1993) Memorandum [ATC 0017291-0017307]
28 On July 19 1978 Lewis wrote to Sarah Simon of EPA and submitted Atlas
Tacks proposal for connection to the sewer outfall for final approval by the reviewing agencies
Lewis sent the same letter to McMahon
Exh 30 July 19 1978 Letter from Lewis to Simon and from Lewis to McMahon [EPA 000458-464]
29 On September 12 1978 McMahon wrote to Lewis to inform him that DWPC
could not approve Lewiss July 19 1978 letter for several reasons
Exh 31 September 12 1978 Letter from McMahon to Lewis [EPA 000470-71]
30 On September 25 1978 Lewis responded to McMahons September 12 1978
letter and stated that the final plans would be prepared by Tibbetts and will be submitted by
October 27 1978
Exh 32 September 25 1978 Letter Lewis to McMahon [EPA 000473]
31 On October 2 1978 John B Casazza (DWPC) wrote to Lewis in response to the
September 25 1978 letter from Lewis
Exh 33 October 2 1978 letter from Casazza to Lewis [EPA 000474]
32 On January 18 1979 McMahon wrote to Lewis to inform him that the plans
submitted by Tibbetts on October 24 1978 could not be approved for a number of stated
reasons
Exh 34 January 18 1979 Letter from McMahon to Lewis [EPA 000475shy77]
33 The plans were revised and resubmitted by Tibbetts who ensured that the
revisions were the direct outcome of [McMahons] comments made to Mr Leonard Lewis
President of Atlas Tack Corporation in the letter of January 18
Exh 35 March 6 1979 letter from Tibbetts to McMahon [EPA 000478shy79]
34 On March 21 1979 McMahon approved the plans with a number of conditions
The letter of approval was sent to Lewis
Exh 36 March 21 1979 letter from McMahon to Lewis [EPA 000480shy
81]
35 On May 4 1979 Lewis forwarded a letter quotation from Cape Construction amp
Engineering for the construction of the connection to the sewer outfall In the letter Lewis states
he expects that construction of the pre-treatment facility to be completed in accordance with the
10
timetable set forth in the Agreement for Judgment
Exh 37 May 4 1979 Letter from Lewis to McMahon [EPA 000485]
REMOVAL OF MATERIALS FROM LAGOON
36 During the 1980s Atlas had extensive discussions with DEQE relative to the
lagoon
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 U 12
37 On January 14 1981 the Commonwealth of Massachusetts DEQE notified Atlas
Tack that hazardous wastes were being stored in the lagoon
Exh 38 January 14 1981 Letter from Donovan to Atlas Tack (Secor) [EPA 000594-96]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 34-35 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
38 Lewis retained Edward McLaughlin an attorney from Herrick amp Smith about the
lagoon sludge issue
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 40
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 19921f4
39 On October 19 1982 DEQE notified Atlas Tack that the contents of the lagoon
11
fell within the jurisdiction of the hazardous waste regulations enclosing sampling results for
samples taken from lagoon in June 1982 DEQE stated that the contents of the lagoon exhibited
a potential harm to the environment resulting from improper storage and disposal DEQE
recommended that Atlas Tack hire an engineer to explore the closure of the waste lagoon
Exh 40 October 19 1982 Letter from DEQE to Atlas Tack [EPA 000654-55]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 37-40 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
40 In approximately 1982-83 Atlas retained the engineering firm Goldberg-Zoino
Associates Inc (GZA) to handle engineering and prepare a plan to clean up the sludge and
contaminated materials from the lagoon Lewis signed the agreement with GZA for the Lagoon
study
Exh 41 letter from GZA to Atlas Tack dated March 11 1983 approved by Lewis on March 22 1983 [ATC0008736-38]
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 1992 ^[5
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et lL No 91mdash5667A (Mass Super Ct) December 21 1992 t 14
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 8
Exh 42 Deposition of Powers in this case June 17 2004 at 11
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 U 7 [ATC 0012623shy0012628]
12
41 Lewis directed the activities of GZA
Exh 42 Deposition of Powers June 17 2004 at 16-18 (Q So is it fair to say that you would take direction from someone at Atlas with respect to those issues during the relevant period of time A While we were ~ fair to say we took directions on some issues correct Q Do you recall during this period of time whether you were taking direction more often from Mr Secor or Mr Lewis or did it change over time A Initially it was Mr Secor It appeared to change over time Q And how did it change over time A Mr Lewis became more involved)
42 Mr Lewis communicated with GZA and McLaughlin about the materials in the
lagoon between 1983 and 1985 Specifically GZA tested materials in the lagoon to determine
whether they were hazardous and communicated the results to Mr Lewis GZA and
McLaughlin advised Lewis regarding whether the wastes in the Lagoon were hazardous on
numerous occasion during the fall of 1983 through 1984
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994115
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 J 1
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v Mclaughlin et al No 91mdash5633 (Mass Super Ct) December 4 1992 ^j 9
43 On October 25 1983 DEQE requested that the Mass Attorney Generals Office
file suit against Atlas Tack regarding the Lagoon sludges
Exh 44 October 25 1983 Letter from Anderson to Leonard [EPA
000749-50]
44 On January 19 1984 McLaughlin wrote Lewis concerning their recent
telephone conversation about McLaughlins contacts with the Attorney Generals Office
regarding the Atlas Tack Lagoon sludges On April 23 1984 Lewis and McLaughlin had a
13
conversation about settlement of the lagoon pollution matter
Exh 45 January 19 1984 Letter from McLaughlin to Lewis [ATC 007809-7813]
Exh 46 April 24 1984 Letter McLaughlin to Lewis [no bates]
45 On July 2 1984 a Final Judgment (aka Consent Decree) between the
Commonwealth and Atlas Tack was entered in a civil action entitled Commonwealth of
Massachusetts v Atlas Tack Corp No 69523 (Mass Super Ct) Under that Consent Decree
Atlas Tack agreed to clean up the sludge and contaminated materials from the lagoon and
surrounding area at the site by September 7 1984 Lewis signed this Final Judgment
Exh 47 July 2 1984 Final judgment [EPA 000828-834]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 47 52 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 If 13
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
46 Mr Lewis discussed the Consent Decree with McLaughlin and specifically
McLaughlin assured [Mr Lewis] that this consent decree insured that the material in the lagoon
would be treated as special waste not hazardous waste
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 9
Exh 48 July 16 1984 letter from McGlaughlin to Lewis [ATC 007841shy43]
47 On September 12 1984 McLaughlin wrote to Lewis to report back as to a
14
telephone conference he had with Michael Powers (GZA) and AAG Ray Dougan McLaughlin
advises Lewis that it is now imperative that Atlas Tack submit a plan for excavation immediately
to DEQE and that the excavation commence as soon as feasible
Exh 49 September 12 1984 Letter from McLaughlin to Lewis [ATC 0008795-96]
48 On November 15 1984 McLaughlin wrote to Lewis concerning the lagoon
McLaughlin recommended that the cleanup continue expeditiously and be completed no later
that December 15 1984
Exh 50 November 15 1984 Letter McLaughlin to Lewis [EPA 000870shy71]
49 On December 13 1984 and January 11 1984 AAG Raymond Dougan wrote to
Lewis and Herrick amp Smith (McLaughlin and Patrick Butler) to notify them that Atlas Tack was
in non-compliance with the Consent Judgment Atlas Tack did not come close to compliance
with its obligations under the 1984 Consent Decree
Exh 51 December 13 1984 Letter from Dougan to Lewis [EPA 000877shy78]
Exh 52 January 11 1984 Letter from Dougan to Lewis [EPA 000916shy17]
Exh 53 Amended Memorandum of Decision and Order on Defendants Motion under GLc 231 sect 6 Atlas Tack Corp v Leon et al No 91mdash5632B (Mass Super Ct) March 28 1995 pp 3 21
50 Between late January and mid-February 1985 Atlas had a contractor perform a
mud wave operation which consisted of pushing the contents of the Lagoon onto the berm for
drying The drying cakes on the berm were not removed They drying material was at least
900 cubic yards
15
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
and April 6 1978 letter from McMahon to Secor of Atlas Tack summarizing meeting March 9 meeting [EPA 000428]
27 On or about June 26 1978 Lewis signed an Agreement for Judgment with the
Director of the Division of Water Pollution Control and Attorney General of the Commonwealth
in a civil action entitled McMahon et al v Atlas Tack Corp No 26684 (Mass Super Ct)
Pursuant to the Agreement for Judgment Atlas Tack agreed to construct a wastewater treatment
facility and to connect its treated discharge to the Town of Fairhaven sewer outfall pursuant to a
stated schedule
Exh 28 June 22 1978 Agreement for Judgment [EPA 000437-440]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 30-32 (signed under oath by Mr Lewis)
Exh 29 Atlas Tack Corp v Commercial Union Ins Co et al Nos 91shy5666 91-5667 91-5669 (Mass Super Ct Sept 15 1993) Memorandum [ATC 0017291-0017307]
28 On July 19 1978 Lewis wrote to Sarah Simon of EPA and submitted Atlas
Tacks proposal for connection to the sewer outfall for final approval by the reviewing agencies
Lewis sent the same letter to McMahon
Exh 30 July 19 1978 Letter from Lewis to Simon and from Lewis to McMahon [EPA 000458-464]
29 On September 12 1978 McMahon wrote to Lewis to inform him that DWPC
could not approve Lewiss July 19 1978 letter for several reasons
Exh 31 September 12 1978 Letter from McMahon to Lewis [EPA 000470-71]
30 On September 25 1978 Lewis responded to McMahons September 12 1978
letter and stated that the final plans would be prepared by Tibbetts and will be submitted by
October 27 1978
Exh 32 September 25 1978 Letter Lewis to McMahon [EPA 000473]
31 On October 2 1978 John B Casazza (DWPC) wrote to Lewis in response to the
September 25 1978 letter from Lewis
Exh 33 October 2 1978 letter from Casazza to Lewis [EPA 000474]
32 On January 18 1979 McMahon wrote to Lewis to inform him that the plans
submitted by Tibbetts on October 24 1978 could not be approved for a number of stated
reasons
Exh 34 January 18 1979 Letter from McMahon to Lewis [EPA 000475shy77]
33 The plans were revised and resubmitted by Tibbetts who ensured that the
revisions were the direct outcome of [McMahons] comments made to Mr Leonard Lewis
President of Atlas Tack Corporation in the letter of January 18
Exh 35 March 6 1979 letter from Tibbetts to McMahon [EPA 000478shy79]
34 On March 21 1979 McMahon approved the plans with a number of conditions
The letter of approval was sent to Lewis
Exh 36 March 21 1979 letter from McMahon to Lewis [EPA 000480shy
81]
35 On May 4 1979 Lewis forwarded a letter quotation from Cape Construction amp
Engineering for the construction of the connection to the sewer outfall In the letter Lewis states
he expects that construction of the pre-treatment facility to be completed in accordance with the
10
timetable set forth in the Agreement for Judgment
Exh 37 May 4 1979 Letter from Lewis to McMahon [EPA 000485]
REMOVAL OF MATERIALS FROM LAGOON
36 During the 1980s Atlas had extensive discussions with DEQE relative to the
lagoon
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 U 12
37 On January 14 1981 the Commonwealth of Massachusetts DEQE notified Atlas
Tack that hazardous wastes were being stored in the lagoon
Exh 38 January 14 1981 Letter from Donovan to Atlas Tack (Secor) [EPA 000594-96]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 34-35 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
38 Lewis retained Edward McLaughlin an attorney from Herrick amp Smith about the
lagoon sludge issue
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 40
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 19921f4
39 On October 19 1982 DEQE notified Atlas Tack that the contents of the lagoon
11
fell within the jurisdiction of the hazardous waste regulations enclosing sampling results for
samples taken from lagoon in June 1982 DEQE stated that the contents of the lagoon exhibited
a potential harm to the environment resulting from improper storage and disposal DEQE
recommended that Atlas Tack hire an engineer to explore the closure of the waste lagoon
Exh 40 October 19 1982 Letter from DEQE to Atlas Tack [EPA 000654-55]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 37-40 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
40 In approximately 1982-83 Atlas retained the engineering firm Goldberg-Zoino
Associates Inc (GZA) to handle engineering and prepare a plan to clean up the sludge and
contaminated materials from the lagoon Lewis signed the agreement with GZA for the Lagoon
study
Exh 41 letter from GZA to Atlas Tack dated March 11 1983 approved by Lewis on March 22 1983 [ATC0008736-38]
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 1992 ^[5
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et lL No 91mdash5667A (Mass Super Ct) December 21 1992 t 14
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 8
Exh 42 Deposition of Powers in this case June 17 2004 at 11
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 U 7 [ATC 0012623shy0012628]
12
41 Lewis directed the activities of GZA
Exh 42 Deposition of Powers June 17 2004 at 16-18 (Q So is it fair to say that you would take direction from someone at Atlas with respect to those issues during the relevant period of time A While we were ~ fair to say we took directions on some issues correct Q Do you recall during this period of time whether you were taking direction more often from Mr Secor or Mr Lewis or did it change over time A Initially it was Mr Secor It appeared to change over time Q And how did it change over time A Mr Lewis became more involved)
42 Mr Lewis communicated with GZA and McLaughlin about the materials in the
lagoon between 1983 and 1985 Specifically GZA tested materials in the lagoon to determine
whether they were hazardous and communicated the results to Mr Lewis GZA and
McLaughlin advised Lewis regarding whether the wastes in the Lagoon were hazardous on
numerous occasion during the fall of 1983 through 1984
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994115
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 J 1
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v Mclaughlin et al No 91mdash5633 (Mass Super Ct) December 4 1992 ^j 9
43 On October 25 1983 DEQE requested that the Mass Attorney Generals Office
file suit against Atlas Tack regarding the Lagoon sludges
Exh 44 October 25 1983 Letter from Anderson to Leonard [EPA
000749-50]
44 On January 19 1984 McLaughlin wrote Lewis concerning their recent
telephone conversation about McLaughlins contacts with the Attorney Generals Office
regarding the Atlas Tack Lagoon sludges On April 23 1984 Lewis and McLaughlin had a
13
conversation about settlement of the lagoon pollution matter
Exh 45 January 19 1984 Letter from McLaughlin to Lewis [ATC 007809-7813]
Exh 46 April 24 1984 Letter McLaughlin to Lewis [no bates]
45 On July 2 1984 a Final Judgment (aka Consent Decree) between the
Commonwealth and Atlas Tack was entered in a civil action entitled Commonwealth of
Massachusetts v Atlas Tack Corp No 69523 (Mass Super Ct) Under that Consent Decree
Atlas Tack agreed to clean up the sludge and contaminated materials from the lagoon and
surrounding area at the site by September 7 1984 Lewis signed this Final Judgment
Exh 47 July 2 1984 Final judgment [EPA 000828-834]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 47 52 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 If 13
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
46 Mr Lewis discussed the Consent Decree with McLaughlin and specifically
McLaughlin assured [Mr Lewis] that this consent decree insured that the material in the lagoon
would be treated as special waste not hazardous waste
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 9
Exh 48 July 16 1984 letter from McGlaughlin to Lewis [ATC 007841shy43]
47 On September 12 1984 McLaughlin wrote to Lewis to report back as to a
14
telephone conference he had with Michael Powers (GZA) and AAG Ray Dougan McLaughlin
advises Lewis that it is now imperative that Atlas Tack submit a plan for excavation immediately
to DEQE and that the excavation commence as soon as feasible
Exh 49 September 12 1984 Letter from McLaughlin to Lewis [ATC 0008795-96]
48 On November 15 1984 McLaughlin wrote to Lewis concerning the lagoon
McLaughlin recommended that the cleanup continue expeditiously and be completed no later
that December 15 1984
Exh 50 November 15 1984 Letter McLaughlin to Lewis [EPA 000870shy71]
49 On December 13 1984 and January 11 1984 AAG Raymond Dougan wrote to
Lewis and Herrick amp Smith (McLaughlin and Patrick Butler) to notify them that Atlas Tack was
in non-compliance with the Consent Judgment Atlas Tack did not come close to compliance
with its obligations under the 1984 Consent Decree
Exh 51 December 13 1984 Letter from Dougan to Lewis [EPA 000877shy78]
Exh 52 January 11 1984 Letter from Dougan to Lewis [EPA 000916shy17]
Exh 53 Amended Memorandum of Decision and Order on Defendants Motion under GLc 231 sect 6 Atlas Tack Corp v Leon et al No 91mdash5632B (Mass Super Ct) March 28 1995 pp 3 21
50 Between late January and mid-February 1985 Atlas had a contractor perform a
mud wave operation which consisted of pushing the contents of the Lagoon onto the berm for
drying The drying cakes on the berm were not removed They drying material was at least
900 cubic yards
15
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
letter and stated that the final plans would be prepared by Tibbetts and will be submitted by
October 27 1978
Exh 32 September 25 1978 Letter Lewis to McMahon [EPA 000473]
31 On October 2 1978 John B Casazza (DWPC) wrote to Lewis in response to the
September 25 1978 letter from Lewis
Exh 33 October 2 1978 letter from Casazza to Lewis [EPA 000474]
32 On January 18 1979 McMahon wrote to Lewis to inform him that the plans
submitted by Tibbetts on October 24 1978 could not be approved for a number of stated
reasons
Exh 34 January 18 1979 Letter from McMahon to Lewis [EPA 000475shy77]
33 The plans were revised and resubmitted by Tibbetts who ensured that the
revisions were the direct outcome of [McMahons] comments made to Mr Leonard Lewis
President of Atlas Tack Corporation in the letter of January 18
Exh 35 March 6 1979 letter from Tibbetts to McMahon [EPA 000478shy79]
34 On March 21 1979 McMahon approved the plans with a number of conditions
The letter of approval was sent to Lewis
Exh 36 March 21 1979 letter from McMahon to Lewis [EPA 000480shy
81]
35 On May 4 1979 Lewis forwarded a letter quotation from Cape Construction amp
Engineering for the construction of the connection to the sewer outfall In the letter Lewis states
he expects that construction of the pre-treatment facility to be completed in accordance with the
10
timetable set forth in the Agreement for Judgment
Exh 37 May 4 1979 Letter from Lewis to McMahon [EPA 000485]
REMOVAL OF MATERIALS FROM LAGOON
36 During the 1980s Atlas had extensive discussions with DEQE relative to the
lagoon
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 U 12
37 On January 14 1981 the Commonwealth of Massachusetts DEQE notified Atlas
Tack that hazardous wastes were being stored in the lagoon
Exh 38 January 14 1981 Letter from Donovan to Atlas Tack (Secor) [EPA 000594-96]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 34-35 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
38 Lewis retained Edward McLaughlin an attorney from Herrick amp Smith about the
lagoon sludge issue
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 40
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 19921f4
39 On October 19 1982 DEQE notified Atlas Tack that the contents of the lagoon
11
fell within the jurisdiction of the hazardous waste regulations enclosing sampling results for
samples taken from lagoon in June 1982 DEQE stated that the contents of the lagoon exhibited
a potential harm to the environment resulting from improper storage and disposal DEQE
recommended that Atlas Tack hire an engineer to explore the closure of the waste lagoon
Exh 40 October 19 1982 Letter from DEQE to Atlas Tack [EPA 000654-55]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 37-40 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
40 In approximately 1982-83 Atlas retained the engineering firm Goldberg-Zoino
Associates Inc (GZA) to handle engineering and prepare a plan to clean up the sludge and
contaminated materials from the lagoon Lewis signed the agreement with GZA for the Lagoon
study
Exh 41 letter from GZA to Atlas Tack dated March 11 1983 approved by Lewis on March 22 1983 [ATC0008736-38]
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 1992 ^[5
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et lL No 91mdash5667A (Mass Super Ct) December 21 1992 t 14
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 8
Exh 42 Deposition of Powers in this case June 17 2004 at 11
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 U 7 [ATC 0012623shy0012628]
12
41 Lewis directed the activities of GZA
Exh 42 Deposition of Powers June 17 2004 at 16-18 (Q So is it fair to say that you would take direction from someone at Atlas with respect to those issues during the relevant period of time A While we were ~ fair to say we took directions on some issues correct Q Do you recall during this period of time whether you were taking direction more often from Mr Secor or Mr Lewis or did it change over time A Initially it was Mr Secor It appeared to change over time Q And how did it change over time A Mr Lewis became more involved)
42 Mr Lewis communicated with GZA and McLaughlin about the materials in the
lagoon between 1983 and 1985 Specifically GZA tested materials in the lagoon to determine
whether they were hazardous and communicated the results to Mr Lewis GZA and
McLaughlin advised Lewis regarding whether the wastes in the Lagoon were hazardous on
numerous occasion during the fall of 1983 through 1984
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994115
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 J 1
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v Mclaughlin et al No 91mdash5633 (Mass Super Ct) December 4 1992 ^j 9
43 On October 25 1983 DEQE requested that the Mass Attorney Generals Office
file suit against Atlas Tack regarding the Lagoon sludges
Exh 44 October 25 1983 Letter from Anderson to Leonard [EPA
000749-50]
44 On January 19 1984 McLaughlin wrote Lewis concerning their recent
telephone conversation about McLaughlins contacts with the Attorney Generals Office
regarding the Atlas Tack Lagoon sludges On April 23 1984 Lewis and McLaughlin had a
13
conversation about settlement of the lagoon pollution matter
Exh 45 January 19 1984 Letter from McLaughlin to Lewis [ATC 007809-7813]
Exh 46 April 24 1984 Letter McLaughlin to Lewis [no bates]
45 On July 2 1984 a Final Judgment (aka Consent Decree) between the
Commonwealth and Atlas Tack was entered in a civil action entitled Commonwealth of
Massachusetts v Atlas Tack Corp No 69523 (Mass Super Ct) Under that Consent Decree
Atlas Tack agreed to clean up the sludge and contaminated materials from the lagoon and
surrounding area at the site by September 7 1984 Lewis signed this Final Judgment
Exh 47 July 2 1984 Final judgment [EPA 000828-834]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 47 52 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 If 13
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
46 Mr Lewis discussed the Consent Decree with McLaughlin and specifically
McLaughlin assured [Mr Lewis] that this consent decree insured that the material in the lagoon
would be treated as special waste not hazardous waste
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 9
Exh 48 July 16 1984 letter from McGlaughlin to Lewis [ATC 007841shy43]
47 On September 12 1984 McLaughlin wrote to Lewis to report back as to a
14
telephone conference he had with Michael Powers (GZA) and AAG Ray Dougan McLaughlin
advises Lewis that it is now imperative that Atlas Tack submit a plan for excavation immediately
to DEQE and that the excavation commence as soon as feasible
Exh 49 September 12 1984 Letter from McLaughlin to Lewis [ATC 0008795-96]
48 On November 15 1984 McLaughlin wrote to Lewis concerning the lagoon
McLaughlin recommended that the cleanup continue expeditiously and be completed no later
that December 15 1984
Exh 50 November 15 1984 Letter McLaughlin to Lewis [EPA 000870shy71]
49 On December 13 1984 and January 11 1984 AAG Raymond Dougan wrote to
Lewis and Herrick amp Smith (McLaughlin and Patrick Butler) to notify them that Atlas Tack was
in non-compliance with the Consent Judgment Atlas Tack did not come close to compliance
with its obligations under the 1984 Consent Decree
Exh 51 December 13 1984 Letter from Dougan to Lewis [EPA 000877shy78]
Exh 52 January 11 1984 Letter from Dougan to Lewis [EPA 000916shy17]
Exh 53 Amended Memorandum of Decision and Order on Defendants Motion under GLc 231 sect 6 Atlas Tack Corp v Leon et al No 91mdash5632B (Mass Super Ct) March 28 1995 pp 3 21
50 Between late January and mid-February 1985 Atlas had a contractor perform a
mud wave operation which consisted of pushing the contents of the Lagoon onto the berm for
drying The drying cakes on the berm were not removed They drying material was at least
900 cubic yards
15
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
timetable set forth in the Agreement for Judgment
Exh 37 May 4 1979 Letter from Lewis to McMahon [EPA 000485]
REMOVAL OF MATERIALS FROM LAGOON
36 During the 1980s Atlas had extensive discussions with DEQE relative to the
lagoon
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 U 12
37 On January 14 1981 the Commonwealth of Massachusetts DEQE notified Atlas
Tack that hazardous wastes were being stored in the lagoon
Exh 38 January 14 1981 Letter from Donovan to Atlas Tack (Secor) [EPA 000594-96]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 34-35 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
38 Lewis retained Edward McLaughlin an attorney from Herrick amp Smith about the
lagoon sludge issue
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 40
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 19921f4
39 On October 19 1982 DEQE notified Atlas Tack that the contents of the lagoon
11
fell within the jurisdiction of the hazardous waste regulations enclosing sampling results for
samples taken from lagoon in June 1982 DEQE stated that the contents of the lagoon exhibited
a potential harm to the environment resulting from improper storage and disposal DEQE
recommended that Atlas Tack hire an engineer to explore the closure of the waste lagoon
Exh 40 October 19 1982 Letter from DEQE to Atlas Tack [EPA 000654-55]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 37-40 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
40 In approximately 1982-83 Atlas retained the engineering firm Goldberg-Zoino
Associates Inc (GZA) to handle engineering and prepare a plan to clean up the sludge and
contaminated materials from the lagoon Lewis signed the agreement with GZA for the Lagoon
study
Exh 41 letter from GZA to Atlas Tack dated March 11 1983 approved by Lewis on March 22 1983 [ATC0008736-38]
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 1992 ^[5
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et lL No 91mdash5667A (Mass Super Ct) December 21 1992 t 14
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 8
Exh 42 Deposition of Powers in this case June 17 2004 at 11
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 U 7 [ATC 0012623shy0012628]
12
41 Lewis directed the activities of GZA
Exh 42 Deposition of Powers June 17 2004 at 16-18 (Q So is it fair to say that you would take direction from someone at Atlas with respect to those issues during the relevant period of time A While we were ~ fair to say we took directions on some issues correct Q Do you recall during this period of time whether you were taking direction more often from Mr Secor or Mr Lewis or did it change over time A Initially it was Mr Secor It appeared to change over time Q And how did it change over time A Mr Lewis became more involved)
42 Mr Lewis communicated with GZA and McLaughlin about the materials in the
lagoon between 1983 and 1985 Specifically GZA tested materials in the lagoon to determine
whether they were hazardous and communicated the results to Mr Lewis GZA and
McLaughlin advised Lewis regarding whether the wastes in the Lagoon were hazardous on
numerous occasion during the fall of 1983 through 1984
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994115
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 J 1
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v Mclaughlin et al No 91mdash5633 (Mass Super Ct) December 4 1992 ^j 9
43 On October 25 1983 DEQE requested that the Mass Attorney Generals Office
file suit against Atlas Tack regarding the Lagoon sludges
Exh 44 October 25 1983 Letter from Anderson to Leonard [EPA
000749-50]
44 On January 19 1984 McLaughlin wrote Lewis concerning their recent
telephone conversation about McLaughlins contacts with the Attorney Generals Office
regarding the Atlas Tack Lagoon sludges On April 23 1984 Lewis and McLaughlin had a
13
conversation about settlement of the lagoon pollution matter
Exh 45 January 19 1984 Letter from McLaughlin to Lewis [ATC 007809-7813]
Exh 46 April 24 1984 Letter McLaughlin to Lewis [no bates]
45 On July 2 1984 a Final Judgment (aka Consent Decree) between the
Commonwealth and Atlas Tack was entered in a civil action entitled Commonwealth of
Massachusetts v Atlas Tack Corp No 69523 (Mass Super Ct) Under that Consent Decree
Atlas Tack agreed to clean up the sludge and contaminated materials from the lagoon and
surrounding area at the site by September 7 1984 Lewis signed this Final Judgment
Exh 47 July 2 1984 Final judgment [EPA 000828-834]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 47 52 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 If 13
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
46 Mr Lewis discussed the Consent Decree with McLaughlin and specifically
McLaughlin assured [Mr Lewis] that this consent decree insured that the material in the lagoon
would be treated as special waste not hazardous waste
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 9
Exh 48 July 16 1984 letter from McGlaughlin to Lewis [ATC 007841shy43]
47 On September 12 1984 McLaughlin wrote to Lewis to report back as to a
14
telephone conference he had with Michael Powers (GZA) and AAG Ray Dougan McLaughlin
advises Lewis that it is now imperative that Atlas Tack submit a plan for excavation immediately
to DEQE and that the excavation commence as soon as feasible
Exh 49 September 12 1984 Letter from McLaughlin to Lewis [ATC 0008795-96]
48 On November 15 1984 McLaughlin wrote to Lewis concerning the lagoon
McLaughlin recommended that the cleanup continue expeditiously and be completed no later
that December 15 1984
Exh 50 November 15 1984 Letter McLaughlin to Lewis [EPA 000870shy71]
49 On December 13 1984 and January 11 1984 AAG Raymond Dougan wrote to
Lewis and Herrick amp Smith (McLaughlin and Patrick Butler) to notify them that Atlas Tack was
in non-compliance with the Consent Judgment Atlas Tack did not come close to compliance
with its obligations under the 1984 Consent Decree
Exh 51 December 13 1984 Letter from Dougan to Lewis [EPA 000877shy78]
Exh 52 January 11 1984 Letter from Dougan to Lewis [EPA 000916shy17]
Exh 53 Amended Memorandum of Decision and Order on Defendants Motion under GLc 231 sect 6 Atlas Tack Corp v Leon et al No 91mdash5632B (Mass Super Ct) March 28 1995 pp 3 21
50 Between late January and mid-February 1985 Atlas had a contractor perform a
mud wave operation which consisted of pushing the contents of the Lagoon onto the berm for
drying The drying cakes on the berm were not removed They drying material was at least
900 cubic yards
15
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
fell within the jurisdiction of the hazardous waste regulations enclosing sampling results for
samples taken from lagoon in June 1982 DEQE stated that the contents of the lagoon exhibited
a potential harm to the environment resulting from improper storage and disposal DEQE
recommended that Atlas Tack hire an engineer to explore the closure of the waste lagoon
Exh 40 October 19 1982 Letter from DEQE to Atlas Tack [EPA 000654-55]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 37-40 (signed under oath by Mr Lewis)
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
40 In approximately 1982-83 Atlas retained the engineering firm Goldberg-Zoino
Associates Inc (GZA) to handle engineering and prepare a plan to clean up the sludge and
contaminated materials from the lagoon Lewis signed the agreement with GZA for the Lagoon
study
Exh 41 letter from GZA to Atlas Tack dated March 11 1983 approved by Lewis on March 22 1983 [ATC0008736-38]
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v McLaughlin No 91-5633 (Mass Super Ct) December 4 1992 ^[5
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et lL No 91mdash5667A (Mass Super Ct) December 21 1992 t 14
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 8
Exh 42 Deposition of Powers in this case June 17 2004 at 11
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 U 7 [ATC 0012623shy0012628]
12
41 Lewis directed the activities of GZA
Exh 42 Deposition of Powers June 17 2004 at 16-18 (Q So is it fair to say that you would take direction from someone at Atlas with respect to those issues during the relevant period of time A While we were ~ fair to say we took directions on some issues correct Q Do you recall during this period of time whether you were taking direction more often from Mr Secor or Mr Lewis or did it change over time A Initially it was Mr Secor It appeared to change over time Q And how did it change over time A Mr Lewis became more involved)
42 Mr Lewis communicated with GZA and McLaughlin about the materials in the
lagoon between 1983 and 1985 Specifically GZA tested materials in the lagoon to determine
whether they were hazardous and communicated the results to Mr Lewis GZA and
McLaughlin advised Lewis regarding whether the wastes in the Lagoon were hazardous on
numerous occasion during the fall of 1983 through 1984
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994115
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 J 1
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v Mclaughlin et al No 91mdash5633 (Mass Super Ct) December 4 1992 ^j 9
43 On October 25 1983 DEQE requested that the Mass Attorney Generals Office
file suit against Atlas Tack regarding the Lagoon sludges
Exh 44 October 25 1983 Letter from Anderson to Leonard [EPA
000749-50]
44 On January 19 1984 McLaughlin wrote Lewis concerning their recent
telephone conversation about McLaughlins contacts with the Attorney Generals Office
regarding the Atlas Tack Lagoon sludges On April 23 1984 Lewis and McLaughlin had a
13
conversation about settlement of the lagoon pollution matter
Exh 45 January 19 1984 Letter from McLaughlin to Lewis [ATC 007809-7813]
Exh 46 April 24 1984 Letter McLaughlin to Lewis [no bates]
45 On July 2 1984 a Final Judgment (aka Consent Decree) between the
Commonwealth and Atlas Tack was entered in a civil action entitled Commonwealth of
Massachusetts v Atlas Tack Corp No 69523 (Mass Super Ct) Under that Consent Decree
Atlas Tack agreed to clean up the sludge and contaminated materials from the lagoon and
surrounding area at the site by September 7 1984 Lewis signed this Final Judgment
Exh 47 July 2 1984 Final judgment [EPA 000828-834]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 47 52 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 If 13
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
46 Mr Lewis discussed the Consent Decree with McLaughlin and specifically
McLaughlin assured [Mr Lewis] that this consent decree insured that the material in the lagoon
would be treated as special waste not hazardous waste
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 9
Exh 48 July 16 1984 letter from McGlaughlin to Lewis [ATC 007841shy43]
47 On September 12 1984 McLaughlin wrote to Lewis to report back as to a
14
telephone conference he had with Michael Powers (GZA) and AAG Ray Dougan McLaughlin
advises Lewis that it is now imperative that Atlas Tack submit a plan for excavation immediately
to DEQE and that the excavation commence as soon as feasible
Exh 49 September 12 1984 Letter from McLaughlin to Lewis [ATC 0008795-96]
48 On November 15 1984 McLaughlin wrote to Lewis concerning the lagoon
McLaughlin recommended that the cleanup continue expeditiously and be completed no later
that December 15 1984
Exh 50 November 15 1984 Letter McLaughlin to Lewis [EPA 000870shy71]
49 On December 13 1984 and January 11 1984 AAG Raymond Dougan wrote to
Lewis and Herrick amp Smith (McLaughlin and Patrick Butler) to notify them that Atlas Tack was
in non-compliance with the Consent Judgment Atlas Tack did not come close to compliance
with its obligations under the 1984 Consent Decree
Exh 51 December 13 1984 Letter from Dougan to Lewis [EPA 000877shy78]
Exh 52 January 11 1984 Letter from Dougan to Lewis [EPA 000916shy17]
Exh 53 Amended Memorandum of Decision and Order on Defendants Motion under GLc 231 sect 6 Atlas Tack Corp v Leon et al No 91mdash5632B (Mass Super Ct) March 28 1995 pp 3 21
50 Between late January and mid-February 1985 Atlas had a contractor perform a
mud wave operation which consisted of pushing the contents of the Lagoon onto the berm for
drying The drying cakes on the berm were not removed They drying material was at least
900 cubic yards
15
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
41 Lewis directed the activities of GZA
Exh 42 Deposition of Powers June 17 2004 at 16-18 (Q So is it fair to say that you would take direction from someone at Atlas with respect to those issues during the relevant period of time A While we were ~ fair to say we took directions on some issues correct Q Do you recall during this period of time whether you were taking direction more often from Mr Secor or Mr Lewis or did it change over time A Initially it was Mr Secor It appeared to change over time Q And how did it change over time A Mr Lewis became more involved)
42 Mr Lewis communicated with GZA and McLaughlin about the materials in the
lagoon between 1983 and 1985 Specifically GZA tested materials in the lagoon to determine
whether they were hazardous and communicated the results to Mr Lewis GZA and
McLaughlin advised Lewis regarding whether the wastes in the Lagoon were hazardous on
numerous occasion during the fall of 1983 through 1984
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994115
Exh 43 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) August 2 1993 J 1
Exh 39 Affidavit of M Leonard Lewis from Atlas Tack Corp v Mclaughlin et al No 91mdash5633 (Mass Super Ct) December 4 1992 ^j 9
43 On October 25 1983 DEQE requested that the Mass Attorney Generals Office
file suit against Atlas Tack regarding the Lagoon sludges
Exh 44 October 25 1983 Letter from Anderson to Leonard [EPA
000749-50]
44 On January 19 1984 McLaughlin wrote Lewis concerning their recent
telephone conversation about McLaughlins contacts with the Attorney Generals Office
regarding the Atlas Tack Lagoon sludges On April 23 1984 Lewis and McLaughlin had a
13
conversation about settlement of the lagoon pollution matter
Exh 45 January 19 1984 Letter from McLaughlin to Lewis [ATC 007809-7813]
Exh 46 April 24 1984 Letter McLaughlin to Lewis [no bates]
45 On July 2 1984 a Final Judgment (aka Consent Decree) between the
Commonwealth and Atlas Tack was entered in a civil action entitled Commonwealth of
Massachusetts v Atlas Tack Corp No 69523 (Mass Super Ct) Under that Consent Decree
Atlas Tack agreed to clean up the sludge and contaminated materials from the lagoon and
surrounding area at the site by September 7 1984 Lewis signed this Final Judgment
Exh 47 July 2 1984 Final judgment [EPA 000828-834]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 47 52 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 If 13
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
46 Mr Lewis discussed the Consent Decree with McLaughlin and specifically
McLaughlin assured [Mr Lewis] that this consent decree insured that the material in the lagoon
would be treated as special waste not hazardous waste
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 9
Exh 48 July 16 1984 letter from McGlaughlin to Lewis [ATC 007841shy43]
47 On September 12 1984 McLaughlin wrote to Lewis to report back as to a
14
telephone conference he had with Michael Powers (GZA) and AAG Ray Dougan McLaughlin
advises Lewis that it is now imperative that Atlas Tack submit a plan for excavation immediately
to DEQE and that the excavation commence as soon as feasible
Exh 49 September 12 1984 Letter from McLaughlin to Lewis [ATC 0008795-96]
48 On November 15 1984 McLaughlin wrote to Lewis concerning the lagoon
McLaughlin recommended that the cleanup continue expeditiously and be completed no later
that December 15 1984
Exh 50 November 15 1984 Letter McLaughlin to Lewis [EPA 000870shy71]
49 On December 13 1984 and January 11 1984 AAG Raymond Dougan wrote to
Lewis and Herrick amp Smith (McLaughlin and Patrick Butler) to notify them that Atlas Tack was
in non-compliance with the Consent Judgment Atlas Tack did not come close to compliance
with its obligations under the 1984 Consent Decree
Exh 51 December 13 1984 Letter from Dougan to Lewis [EPA 000877shy78]
Exh 52 January 11 1984 Letter from Dougan to Lewis [EPA 000916shy17]
Exh 53 Amended Memorandum of Decision and Order on Defendants Motion under GLc 231 sect 6 Atlas Tack Corp v Leon et al No 91mdash5632B (Mass Super Ct) March 28 1995 pp 3 21
50 Between late January and mid-February 1985 Atlas had a contractor perform a
mud wave operation which consisted of pushing the contents of the Lagoon onto the berm for
drying The drying cakes on the berm were not removed They drying material was at least
900 cubic yards
15
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
conversation about settlement of the lagoon pollution matter
Exh 45 January 19 1984 Letter from McLaughlin to Lewis [ATC 007809-7813]
Exh 46 April 24 1984 Letter McLaughlin to Lewis [no bates]
45 On July 2 1984 a Final Judgment (aka Consent Decree) between the
Commonwealth and Atlas Tack was entered in a civil action entitled Commonwealth of
Massachusetts v Atlas Tack Corp No 69523 (Mass Super Ct) Under that Consent Decree
Atlas Tack agreed to clean up the sludge and contaminated materials from the lagoon and
surrounding area at the site by September 7 1984 Lewis signed this Final Judgment
Exh 47 July 2 1984 Final judgment [EPA 000828-834]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 47 52 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 If 13
Atlas Tack Corp v Liberty Mutual Ins Co 721 NE2d 8 10 (Mass App Ct 1999)
46 Mr Lewis discussed the Consent Decree with McLaughlin and specifically
McLaughlin assured [Mr Lewis] that this consent decree insured that the material in the lagoon
would be treated as special waste not hazardous waste
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 9
Exh 48 July 16 1984 letter from McGlaughlin to Lewis [ATC 007841shy43]
47 On September 12 1984 McLaughlin wrote to Lewis to report back as to a
14
telephone conference he had with Michael Powers (GZA) and AAG Ray Dougan McLaughlin
advises Lewis that it is now imperative that Atlas Tack submit a plan for excavation immediately
to DEQE and that the excavation commence as soon as feasible
Exh 49 September 12 1984 Letter from McLaughlin to Lewis [ATC 0008795-96]
48 On November 15 1984 McLaughlin wrote to Lewis concerning the lagoon
McLaughlin recommended that the cleanup continue expeditiously and be completed no later
that December 15 1984
Exh 50 November 15 1984 Letter McLaughlin to Lewis [EPA 000870shy71]
49 On December 13 1984 and January 11 1984 AAG Raymond Dougan wrote to
Lewis and Herrick amp Smith (McLaughlin and Patrick Butler) to notify them that Atlas Tack was
in non-compliance with the Consent Judgment Atlas Tack did not come close to compliance
with its obligations under the 1984 Consent Decree
Exh 51 December 13 1984 Letter from Dougan to Lewis [EPA 000877shy78]
Exh 52 January 11 1984 Letter from Dougan to Lewis [EPA 000916shy17]
Exh 53 Amended Memorandum of Decision and Order on Defendants Motion under GLc 231 sect 6 Atlas Tack Corp v Leon et al No 91mdash5632B (Mass Super Ct) March 28 1995 pp 3 21
50 Between late January and mid-February 1985 Atlas had a contractor perform a
mud wave operation which consisted of pushing the contents of the Lagoon onto the berm for
drying The drying cakes on the berm were not removed They drying material was at least
900 cubic yards
15
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
telephone conference he had with Michael Powers (GZA) and AAG Ray Dougan McLaughlin
advises Lewis that it is now imperative that Atlas Tack submit a plan for excavation immediately
to DEQE and that the excavation commence as soon as feasible
Exh 49 September 12 1984 Letter from McLaughlin to Lewis [ATC 0008795-96]
48 On November 15 1984 McLaughlin wrote to Lewis concerning the lagoon
McLaughlin recommended that the cleanup continue expeditiously and be completed no later
that December 15 1984
Exh 50 November 15 1984 Letter McLaughlin to Lewis [EPA 000870shy71]
49 On December 13 1984 and January 11 1984 AAG Raymond Dougan wrote to
Lewis and Herrick amp Smith (McLaughlin and Patrick Butler) to notify them that Atlas Tack was
in non-compliance with the Consent Judgment Atlas Tack did not come close to compliance
with its obligations under the 1984 Consent Decree
Exh 51 December 13 1984 Letter from Dougan to Lewis [EPA 000877shy78]
Exh 52 January 11 1984 Letter from Dougan to Lewis [EPA 000916shy17]
Exh 53 Amended Memorandum of Decision and Order on Defendants Motion under GLc 231 sect 6 Atlas Tack Corp v Leon et al No 91mdash5632B (Mass Super Ct) March 28 1995 pp 3 21
50 Between late January and mid-February 1985 Atlas had a contractor perform a
mud wave operation which consisted of pushing the contents of the Lagoon onto the berm for
drying The drying cakes on the berm were not removed They drying material was at least
900 cubic yards
15
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 ^ 15
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 ^ 12 17
Exh 54 Supplemental Affidavit of M Leonard Lewis from Sorett v Atlas Tack et al No 91mdash3987 (Mass Super Ct) April 7 1993 f 3
Exh 2 Affidavit of M Leonard Lewis from Sorett v Atlas Tack Corp et al No 91mdash3987 (Mass Super Ct) August 10 1992 t 5
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^9
51 On January 16 1985 Lewis met with a contractor (Briggs) at the plant in
Fairhaven to negotiate a contract for constructing the sludge drying area for the mud wave
operation Lewis confirmed the arrangement on January 18 1985 by letter
Exh 56 January 18 1985 letter from Lewis to Briggs [ATC 0000407shy408]
52 On April 8 1985 Dougan wrote to Lewis because the lagoon work had not been
completed more than seven months after the deadline required by the Consent Judgment He
informed Lewis that the Commonwealth intended to pursue all appropriate remedies against
Atlas Tack
Exh 57 April 8 1985 Letter from Dougan to Lewis [EPA 000977-98]
53 Atlas Tacks manufacturing operations ceased in approximately June of 1985
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 66 (signed under oath by Mr Lewis)
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 14
16
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
Exh 10 Affidavit of M Leonard Lewis from GNI and Atlas Tack Corp v Lexington Ins Co No 94-01268 (Mass Super Ct) Nov 12 2001 K 6
54 On May 20 1985 DEQE noted that the sludges had not been covered with any
impervious liner has not been placed and resulting in on-going infiltration and groundwater
contamination
Exh 58 May 20 1985 Letter from Donovan to Dougan [EPA 000968-69]
55 On June 21 1985 DEQE (Christopher Tilden) issued a Notice of Responsibility
(NOR) to Lewis on behalf of Atlas Tack because of its non-compliance with the 7284
Consent Judgment This letter stated that the material in the lagoon was a hazardous waste The
letter noted that the drying sludges were not covered a source of potential contamination
Exh 59 June 21 1985 Letter from Tilden to Lewis [EPA 000997-98]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et al No 91mdash5667A (Mass Super Ct) December 21 1992 f 17
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 15
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994 If 14
56 On June 25 1985 Lewis wrote to Tilden (DEQE) to specify that the fence had
been erected around the berm holding the sludges and that GZA is to locate a disposal site
Exh 60 July 25 1985 Letter from Lewis to Tilden [ATC 0007840]
57 On July 2 1985 McLaughlin wrote to Lewis enclosing a copy of his July 1 1985
letter to Dougan and DEQE requesting an extension McLaughlin advised Lewis that GZA
should develop the removal plan well within the 21 days because he was positive they would get
no more extensions from the state On July 8 1985 McLaughlin again wrote to Lewis advising
17
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
that the plan be developed
Exh 61 July 81985 Letter McLaughlin to Lewis [ATC0008816]
Exh 62 July 2 1985 Letter McLaughlin to Lewis [EPA 0001008-10]
58 Following receipt of the June 21 1985 DEQE letter on approximately July 9
1985 Mr Lewis consulted McLaughlin and Carl Eidam of GZA Mr Lewis requested that the
material in the lagoon be tested again and Powers of GZA updated Lewis on July 15 1985
Powers also informs him that GZA has been making inquiries regarding disposal facilities for the
sludge Lewis forward GZAs sample results to McLaughlin on August 1 1985
Exh 63 July 15 1985 letter from Powers (GZA) to Lewis [EPA001030shy31]
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 f 16
Exh 55 Affidavit of M Leonard Lewis from Atlas Tack Corp v Leon No 91-5632B (Mass Super Ct) January 18 1994^ 14-15
Exh 64 August 1 1985 letter from Lewis to McLaughlin [ATC 000054301]
59 On July 16 1985 McLaughlin stated to Dougan of the Attorney Generals Office
that McLaughlin would speak to Mr Lewis with regard to the fence and the cover on the
drying cakes
Exh 65 Letter from McLaughlin to Dougan July 16 1985 [EPA 001032]
60 DEQE retained its own contractor Clean Harbors Inc who removed the lagoon
sludges (the drying cakes on the berm) as hazardous wastes
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 19921121
Exh 11 Affidavit of M Leonard Lewis from Atlas Tack Corp v Becker
18
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
and Blick No 91mdash5635E (Mass Super Ct) June 7 1994 If 17
61 On August 27 1985 Lewis signed a contract with GZA for technical assistance
on sludge removal Lewis also met with Powers of GZA to discussed the billing procedures for
this project
Exh 66 August 27 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 27 1985 [ATC 0000680-83]
Exh 67 August 29 1985 letter from Powers to Lewis [ATC 0000696]
62 Lewis spoke to Edward Patch of Clean Harbors regarding the amount of costs and
work done regarding the lagoon clean out
Exh 68 Verified Complaint for Construction of and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)^J 14
63 On October 29 1985 Atlas Tack filed a Verified Complaint for Construction of
and Instructions Under Final Judgment and Consent Decree in Atlas Tack Corp v
Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct) Lewis
signed this complaint The Commonwealth counterclaimed on January 9 1986 and alleged
among other things that Atlas Tack had violated the terms of the Consent Decree dated July 2
1984
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 61 63 65 (signed under oath by Mr Lewis)
Exh 68 Verified Complaint signed under oath by Mr Lewis [ATC 0012494-507]
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et
19
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
al No 91mdash5667A (Mass Super Ct) December 21 1992^21-22
64 On November 20 1985 Lewis wrote to Powers of GZA to request full back up on
all invoices which GZA had submitted for each of the projects
Exh 69 November 20 1985 letter from Lewis to Powers [ATC 0000800]
65 Lewis was actively involved in the litigation of the case against the
Commonwealth concerning the costs of the Lagoon clean up In 1990 Lewis instructed
attorneys about whether to settle lawsuits relating to the clean up of the lagoon with the
Commonwealth and whether to settle lawsuits relating to the clean up of the contamination
inside of the building with other plaintiffs
Exh 70 Affidavit of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) November 131996H 10
Exh 71 Affidavit of Lewis in In Re Gaston amp Snow No 91 B 14594 (Bankry SD NY) September 1 1992 ^ 22 (Commonwealth offered to settle in 1990 I as President of Atlas rejected the offer)
Exh 72 Deposition of Lewis in Sorett v Atlas Tack Corp August 15 1991 at 101 (Lewis made the ultimate decision to settle the case)
Exh 73 February 11 1991 Letter from Sorett to Lewis [EPA 001970-74]
Exh 74 November 11 1990 Memo to Lewis from Sorett [EPA 001930shy34]
66 On or about May 22 1991 Lewis signed a consent judgment in Atlas Tack Corp
v Commonwealth of Massachusetts and Clean Harbors Inc No 79185 (Mass Super Ct)
Pursuant to the consent judgment Atlas Tack agreed to pay the Commonwealth $87760481 of
which $5000000 was civil penalties and the remainder was for cleanup and response costs
Exh 75 Final Judgment signed by Lewis [EPA 002026-2032]
20
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Responses 78-79 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 t 36
DRUMMED WASTES AT THE PLANT
67 From 1979 to 1985 Atlas Tack collected and stored waste in barrels at the site
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 13 (signed under oath by Mr Lewis)
68 On July 22 1985 DEQE inspected the Atlas Tack plant DEQE found that drums
were unlabeled and corroded to the point where leakage has occurred and mixing of waste was
evident on the wood floor DEQE found that leaking of rainwater through the roof and
infiltration of materials through holes in the wood floor resulted in apparent contamination of
soils under the building DEQE found evidence that there had been discharge to the soil an
imminent threat to the environment
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
Exh 77 Memo by Kowal dated August 9 1985 [EPA 001172-79]
69 On August 6 1985 an Administrative Warrant for another inspection of the plant
was issued by a Justice of the Boston Municipal Court The warrant stated that hazardous wastes
and hazardous material were at the site in open unsecured corroding leaking and unmarked
drums The court stated that these wastes poses or may pose a threat of release After this
21
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
warrant issued another DEQE inspection took place on August 7 1985
Exh 78 Affidavit on Support of Administrative Inspection Warrant James D Miller [ATC 0016537-001654201]
Exh 79 August 6 1985 Administrative Inspection Warrant and Return [EPA 001119-23]
Exh 77 Memo by Kowal dated August 91985 [EPA 001171]
Exh 80 August 6 1985 Memorandum from Vaughn (DEQE) to Delany (DEQE) [ATC 0000545]
70 On August 8 1985 DEQE wrote to Lewis and requested Atlas Tack undertake
certain actions based on matters observed during the July 22 1985 DEQE inspection
Exh 76 August 8 1985 Letter from Tilden (DEQE) to Lewis (Notice of Responsibility) [EPA 001143-46]
71 On August 12 1985 Lewis wrote to Tilden in response to the August 8 1985
letter Lewis stated that Atlas Tack had secured outside perimeter of the facility material had
been purchased and the board up the first floor building had begun He further stated that Atlas
Tack had retained JetLine Services to remove drums from premises that are leaking and to clean
up spillages He further stated that GZA has been contracted to prepare and submit a plan to
identify tanks and their contents to pump out and dispose of and to identify all raw product
drums and containers
Exh 81 August 12 1985 letter from Lewis to Tilden [EPA001156-57]
72 On August 19 1985 Lewis signed a contract with GZA for additional services at
the Atlas Tack Fairhaven facility including monitoring of the hazardous materials clean up
Exh 82 August 16 1985 letter from Powers to Atlas Tack (Secor) counter-signed by Lewis on August 19 1985 with attachment [FAH 0003716-21]
22
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
73 On August 19 1985 Lewis signed an agreement with Jet-Line Services Inc for
sampling packaging and disposal of all chemicals and contaminated debris at atlas Tack The
statement of work also included tank cleaning and any asbestos removal Lewis is listed as a
person authorizing work
Exh 83 August 19 1985 Contract Initiation Form [EPA 001196-97]
GENERAL SITE INVESTIGATION (OR AUDIT)
74 On August 21 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a report to Lewis identifying five areas of the site that needed to be addressed
based upon analytical results of the sampling conducted and observations made during a site
inspection
Exh 84 August 21 1986 letter from Hughto to Lewis [EPA 001619-24]
75 On November 13 1986 Rizzo Associates (Anthony F Andronico and Richard J
Hughto) sent a letter to Lewis commenting on a proposed Administrative Consent Order with
DEQE relating to and assessment of the site
Exh 85 November 13 1986 letter from Hughto to Lewis [ATC 0001009shy000101001]
76 On November 10 1986 Lewis signed an Administrative Consent Order with
DEQE which stated hazardous materials including electroplating acid bath and cleaning
wastes have been stored and disposed of at the site Hazardous materials have spilled leaked
and have otherwise been released into the soil and groundwater at the site The Administrative
Consent Order required atlas Tack to retain an engineering firm and complete an assessment of
23
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
the site together with a final engineering report within four months
Exh 86 November 10 1986 DEQE Administrative Consent Order (signed by Lewis) [ATC 0005359-67]
Exh 9 Plaintiffs Response to Defendant Hartford Accident amp Indemnity Companys First Requests for Admission in Atlas Tack Corp V Hartford Accident amp Indemnity Co (Mass Super Ct) September 7 1994 Response 73 (signed under oath by Mr Lewis)
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 H 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
77 Atlas retained Rizzo Associates Inc to do the study The Rizzo report was
completed in 1987 and amended in 1989
Exh 1 Affidavit of M Leonard Lewis from Atlas Tack Corp v CNA et aL No 91mdash5667A (Mass Super Ct) December 21 1992 U 31 (Toward the end of 1986 DEQE required Atlas to perform a Phase II environmental study of the Site
RIGHT-TO-KNOW PETITION
78 On July 29 1985 DEQE because of a Right-to-Know request wrote to Atlas
Tack to request Material Safety Data Sheets for hazardous substances located at the plant
Exh 87 July 29 1985 Letter from Anderson (DEQE) to Leveque (Atlas Tack) [EPA 001089]
79 On August 28 1985 Lewis wrote to DEQE regarding the Material Safety Data
Sheets for hazardous substances located at the plant On September 24 1985 DEQE wrote back
to Lewis on the Right to Know submittal
Exh 88 August 28 1985 Letter from Lewis to Anderson (DEQE) [EPA 001218-19]
24
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
Exh 89 September 24 1985 Letter to Lewis [EPA 001288-91]
80 In 1985 Lewis hired Rackemann Sawyer amp Brewster to handle a Right-to-Know
petition On September 24 1985 Lewis attended a meeting with Lin Cheney Sasman (DEQE
deputy counsel) John OBrien Esq (attorney from Rackemann) Bob Murphy (GZA) Gene
Romero (DEQE RTK Coordinator) regarding the Right-to-Know petition
Exh 90 September 26 1985 Memorandum from Sasman to Atlas re Report of 9241985 Meeting [EPA 001292-94]
Exh 4 Deposition of Lewis in Atlas Tack Corp v Donabed et al No 91-3159 (Mass Super Ct) October 13 1995 at 67-69
ROLL-OFF CONTAINER
81 On October 22 1986 Lewis wrote to Sawyer Environmental regarding a roll-off
container with Sawyers name affixed to it that was left on atlas Tacks property Lewis stated
that atlas Tack had been ordered to removed drums to a licensed hazardous waste facility Lewis
advised that unless Sawyer or Jet-Line Services Inc removed the roll-off within 10 days Atlas
Tack would remove it and hold Sawyer responsible for the costs incurred
Exh 91 October 22 1986 Letter from Lewis to Sawyer Environmental [EPA 001630]
82 On March 24 1987 Tilden wrote to Lewis to inform him that DEQE would
commence response actions at Atlas Tack in April 1987 According to Tilden DEQEs response
actions would include sampling characterizing for disposal and disposing of contents of the
roll-off container remaining on-site after the building clean-up of August 1986 Also a fence
around the perimeter of the atlas Tack property would be erected
Exh 92 March 24 1987 Letter from Tilden to Lewis [EPA001711]
25
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
83 On June 3 1987 Tilden wrote to Lewis to notify him that DEQE would
commence response actions at the site including sampling characterizing for disposal and
disposing of the contents of the roll-off container remaining on-site after the building clean-up of
August 1986
Exh 93 June 3 1987 Letter from Tilden to Lewis [EPA001741]
84 On August 4 1987 Lewis wrote to Tilden to inform him that the contents of the
roll-off container had been removed and enclosed a copy of the Uniform Hazardous Waste
Manifest for DEQE records
Exh 94 August 41987 Letter Lewis to Tilden [EPAOO1749]
VARIOUS ENVIRONMENTAL MATTERS
85 Lewis notified Atlas Tacks insurer that there was a potential claim for releases of
hazardous substances at the Site
Exh 95 April 24 1986 Letter from Lewis to Liberty Mutual [EPAOO 1605]
86 Lewis responded to EPA formal Request for Information under CERCLA in
1997 Lewis also responded to EPA formal Request for Information under CERCLA on March
30 and April 102000
Exh 96 November 25 1997 Letter from Lewis to Craffey (EPA) [EPA 002503-15] March 30 2000 Letter from Lewis to Stanley [EPA 003125] April 10 2000 Letter from Lewis to Craffey [EPA 003127-28]
87 In 1999 Lewis asked his environmental contractor (Menzie) about the risks due
to asbestos in the building at Site
Exh 97 July 7 1999 Memorandum from Menzie to Lewis [EPA 002901shy02]
26
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
88 On December 7 1999 Massachusetts DEP notified Lewis that demolition at the
Site did not comply with asbestos regulations Lewis replied to this letter on December 16
1999
Exh 98 December 7 1999 letter from Ellis (DEP) to Lewis [EPA 002971-74]
Exh 99 December 16 1999 letter from Lewis to Ellis [EPA 002976-77]
EXHIBITS
All exhibits attached hereto are admissible under the Federal Rules of Evidence An
Exhibit List is attached
As background many of the exhibits used come from prior civil judicial actions Atlas
has been involved in many lawsuits concerning the Site (in addition to all of the environmental
enforcement actions described above in this Statement) First in the early 1990s Atlas filed a
spate of malpractice actions against groups attorneys and law firms that had represented Atlas in
connection with the lagoon or its litigation with the Commonwealth about the lagoon See
Amended Memorandum of Decision and Order on Defendants Motion under GL c 231 sect6F
Atlas Tack Corp v Leon No 91-5632-B (Mass Super Ct March 28 1995) at 4 Exh 53
Later Atlas filed about 14 lawsuits against its insurers seeking to require them to defend and
indemnify Atlas against costs incurred in this lawsuit (among other matters) In all these
various lawsuits factual issues were litigated relating to the Site Mr Lewis signed affidavits
and answered interrogatories and other discovery under oath Atlas Tack filed pleadings setting
forth facts These documents demonstrate that there is no genuine issue as to the facts in this
Statement Of Undisputed Facts
27
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
The first document cited is the Answer which can be used under Fed R Civ P 56(c)2
Several Exhibits are various Affidavits M Leonard Lewis the president of Atlas Tack
from various prior lawsuits Deposition and trial testimony of Lewis is also attached as are
certain discovery responses signed under oath by Lewis These documents comprise admissions
made by Mr Lewis and as such are not hearsay FRE 801(d)(2)
Plaintiff also relies on sworn Declarations and deposition testimony of witnesses which
can be used under Fed R Civ P 56
The remainder of the exhibits are traditional documentary evidence including ancient
documents business records and government records from various other sources These
documents from the files of the Massachusetts Attorney Generals Office Massachusetts DEQE
and Town of Fairhaven All documents bearing the alpha-numerical bates label ATC
were produced to the United State by the defendants in this case
Respectfully submitted
Date August 4 2004 s Donald G Frankel Donald G Frankel Trial Attorney Environmental Enforcement Section Environment and Natural Resources
Division United States Department of Justice One Gateway Center Suite 616 Newton MA 02458 (617)450-0442
2 These are available in the Docket Pursuant to the Electronic Case Filing Administrative Procedures for the District of Massachusetts at 9 sect L3 the Complaint and Answer are not attached but are merely referenced
28
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29
Date August 4 2004 s Steven ORourke Steven ORourke Environmental Enforcement Section Environment and Natural Resources Division
United States Department of Justice PO Box 7611 Washington DC 20044-7611 (202)514-5313
MICHAEL J SULLIVAN United States Attorney District of Massachusetts GEORGE B HENDERSON II Assistant United States Attorney United States Attorneys Office US Courthouse One Courthouse Way Suite 9200 Boston MA 02210
29