Dedham Water Co. v. Cumberland Farms Dairy, Inc.
| Decision Date | 03 April 1989 |
| Docket Number | No. 88-2080,88-2080 |
| Citation | 889 F.2d 1146 |
| Parties | , 30 ERC 1649, 58 USLW 2305, 20 Envtl. L. Rep. 20,334 20 Envtl. L. Rep. 20,340 DEDHAM WATER COMPANY and Dedham-Westwood Water District, Plaintiffs, Appellants, v. CUMBERLAND FARMS DAIRY, INC., et al., Defendants, Appellees. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Thomas F. Holt, Jr., with whom Nancy B. Reiner, DiCara, Selig, Sawyer & Holt, Boston, Mass., John R. Cope and Bracewell & Patterson, Washington, D.C., were on brief, for plaintiffs, appellants.
Allan van Gestel with whom Henry C. Dinger, Christopher P. Davis, A. Lauren Carpenter and Goodwin, Procter & Hoar, Boston, Mass., were on brief, for defendants, appellees.
Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.
This is an appeal by plaintiff-appellant Dedham Water Company from a judgment of the district court holding that defendant-appellee Cumberland Farms Dairy, Inc. was not liable to plaintiff under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), the Clean Water Act (CWA), the Resource Conservation and Recovery Act (RCRA), and the Massachusetts Oil and Hazardous Material Release Prevention and Response Act (Mass.Gen.L. ch. 21E).
On October 21, 1982, Dedham Water filed suit in district court against Cumberland Farms alleging violations of CERCLA, CWA, RCRA and state statutory and common law environmental requirements. The suit sought injunctive relief, response costs, and damages due to Cumberland Farms' unlawful releases and threatened releases of hazardous substances. In 1985, the district court dismissed the case, but on appeal that order was reversed, and the claims were reinstated on November 14, 1986. Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074 (1st Cir.1986). 1 After the initial dismissal of its claims, Dedham Water filed new complaints in February and March, 1986, including a new claim under the Clean Water Act. All the prior actions ultimately were consolidated into one action, the "Consolidated Complaint." On May 6, 1987, Dedham Water filed a Motion for Summary Judgment on the CERCLA and RCRA counts, which was denied by the district court. A jury-waived trial began on November 19, 1987. On August 4, 1988, the district court entered a Final Judgment in favor of Cumberland Farms. Dedham Water Co. v. Cumberland Farms, Inc., 689 F.Supp. 1223 (D.Mass.1988). We vacate
the judgment of the district court and remand for a new trial.
Dedham Water (and its successor, the Dedham-Westwood Water District), a regulated public water utility, supplies drinking water to approximately 40,000 persons in the towns of Dedham and Westwood in Massachusetts. The primary source of plaintiff's water supply is the White Lodge Well Field, consisting of four wells, located on the west bank of the Neponset River in Westwood. Cumberland Farms has a truck maintenance facility located in Canton, Massachusetts, approximately 1,000 feet south of the White Lodge Well Field, on the east bank of the Neponset River. The Shield Packaging Company is also located in Canton on the east bank of the Neponset River, approximately 2,000 feet southwest of the White Lodge Well Field, in what is called the Industrial Park area. Also nearby is the New Neponset Valley Sewer, operated by the Massachusetts Water Resources Authority, which runs south to north along the east bank of the Neponset River.
Cumberland Farms, in servicing its trucks, used substantial quantities of solvents and degreasers containing volatile organic chemicals (VOCs). 2 Cumberland Farms' personnel testified that Cumberland Farms' mechanics regularly dumped these solvents and liquid wastes directly into drains and catch basins. These drains and catch basins are connected to a drainage pipe owned by Cumberland Farms known as the Northwest Storm Sewer Outfall (NWSSO), which in turn discharges directly into a drainage ditch, which flows towards the White Lodge Well Field, and ultimately discharges into the Neponset River. Cumberland Farms has on its property its own water well which it used for its truck maintenance work.
It has been stipulated that in early March, 1979, Dedham Water discovered that White Lodge Wells # 3 and # 4, the wells closest to the Cumberland Farms' facility, were contaminated with VOCs, including trichloroethane, trichloroethylene, dichloroethane, dichloroethylene, and tetrachloroethylene. Based upon a survey it made of the surrounding surface waters, Dedham Water believed that Cumberland Farms was the source of the contamination of White Lodge Wells # 3 and # 4. Dedham Water informed the Massachusetts Department of Environmental Quality Engineering (DEQE) of the problem, which then assumed responsibility for the investigation. In April, 1979, Dedham Water removed Wells # 3 and # 4 from service, and the DEQE issued a notice that these wells were not to be used to supply water for drinking.
Cumberland Farms continued to dispose of solvents and degreasers directly into its drains after it was made aware of the contamination at the White Lodge Well Field. After Dedham Water notified Cumberland Farms of the contamination of Dedham's wells, the DEQE, in June, 1979, notified Cumberland Farms that tests the DEQE had conducted in June 1979 revealed that Cumberland Farms' own well was contaminated with trichloroethane and trichloroethylene. Following a meeting between the DEQE and Cumberland Farms on August 22, 1979, the DEQE informed Cumberland Farms by letter dated September 4, 1979, that Cumberland Farms was to analyze the water coming from Cumberland Farms' own production well, and was to send the results to the DEQE, so that any levels in excess of the drinking water standards could be determined and appropriate action taken. Cumberland Farms analyzed water samples from its well in September, 1979, and the results showed that its well was contaminated with VOCs. Cumberland Farms has conceded that until April, 1982, when its well was permanently shut down, it continued to use the contaminated well water for washing its trucks and continued to discharge the water into its catch basins which flowed into the NWSSO.
Dedham Water took various steps to prevent contamination of the other wells in the White Lodge Well Field. On June 1, 1979 wells # 3 and # 4 were pumped to waste. It hired Calgon Corporation in August of 1979 to determine if the contamination could be removed from the wells. In September of 1979 Dedham Water retained the engineering firm of Metcalf and Eddy to find a solution to the well pollution problem. Its ultimate recommendation was that a water treatment plant be built. In October, 1981, Dedham Water retained the services of Geraghty & Miller, a hydrogeology firm, to determine if the VOCs that had been released and were continuing to be released by Cumberland Farms had migrated and would continue to migrate into the White Lodge Well Field.
The DEQE conducted further investigations in 1981-1982. It is undisputed that the samples from the NWSSO discharge, the Cumberland Farms' well, and the Cumberland Farms' manhole, all revealed extremely high levels of VOCs. A representative of the DEQE testified at trial: that the DEQE had concluded that several of the VOCs found in White Lodge Well # 3 were also found in the discharge from the Cumberland Farms storm drain; that there was a hydrogeological connection across the river, so that any water pumped from the White Lodge Well Field would be drawn from the other side of the river; and that Cumberland Farms was a source of groundwater VOC contamination of the White Lodge Well Field. In February, 1982, the Massachusetts Attorney General and Cumberland Farms entered into an agreement under which Cumberland Farms was to conduct a hydrogeological study of the Cumberland Farms' site. Cumberland Farms, however, never conducted such a study. On April 8, 1982, the DEQE and the Massachusetts Attorney General brought suit in Suffolk County Superior Court against Cumberland Farms to stop the discharge of hazardous substances from the Cumberland Farms' NWSSO, alleging violations of various environmental regulations. This suit was eventually settled in August, 1987, by a consent decree.
In 1985, Dedham Water approved Metcalf & Eddy's earlier recommendation for a water treatment plant, and the plant went into service on March 25, 1987.
The district court held that the Cumberland Farms facility was not the source of contamination of the White Lodge Well Field. The court found that the Shield Packaging Company and the New Neponset Valley Sewer were "probable" causes of the White Lodge Well Field VOC contamination. It held that under CERCLA, in "two-site" cases, a plaintiff has to prove that the hazardous wastes released by a defendant have actually migrated to and contaminated the plaintiff's site in order for the defendant to be found liable. The court also held that this type of causal nexus had to be present for the CWA, RCRA, and Massachusetts statutory claims as well. Because the court found that Dedham Water had not proven that the contaminants released by Cumberland Farms had migrated to the wells of Dedham Water, it held that Cumberland Farms was not liable for the expenses incurred by Dedham Water in investigating the cause of the pollution to its wells and rectifying it.
Dedham Water has not appealed the finding made by the district court that hazardous substances released by Cumberland Farms did not physically migrate onto Dedham Water's well field and contaminate it. It is Dedham Water's position that the actual releases of hazardous substances by Cumberland Farms onto its own property, even if they did not migrate to the wells owned by Dedham Water, and the threatened releases of...
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