Thomas & Betts Corp. v. New Albertson's, Inc.
| Decision Date | 06 February 2019 |
| Docket Number | 16-1204,Nos. 16-1133,Nos. 17-1360,16-1134,17-1361,16-1189,s. 16-1133,s. 17-1360 |
| Citation | 915 F.3d 36 |
| Parties | THOMAS & BETTS CORPORATION, Plaintiff/Third-Party Plaintiff, Appellant/Cross-Appellee, v. NEW ALBERTSON'S, INC., Defendant/Third-Party Plaintiff, Appellee/Cross-Appellee, Alfa Laval Inc.; Boston Renaissance Charter Public School; Boston Renaissance Charter School, Inc.; Siemens Industry, Inc.; Allis-Chalmers Energy, Inc.; Dampney Company, Inc., Third-Party Defendants, Appellees/Cross-Appellants/Cross-Appellees, Jeanette Yukon, as General Partner of Yukon/Hyde Park Avenue Limited Partnership; Jewel Food Stores, Inc.; Star Markets Company; Hyde Park Manager, Inc., as Administrative Trustee for W/S Cardinal Hyde Park-MA Trust; Dampney Company, Inc., Third-Party Defendants, Appellees/Cross-Appellees. Thomas & Betts Corporation, Plaintiff/Third-Party Plaintiff, Appellant/Cross-Appellee, v. New Albertson's, Inc., Defendant/Third-Party Plaintiff, Appellee/Cross-Appellant, Alfa Laval Inc.; Boston Renaissance Charter Public School; Boston Renaissance Charter School, Inc.; Siemens Industry Inc.; Allis-Chalmers Energy, Inc.; Dampney Company, Inc., Third-Party Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Howard Merten, with whom Paul M. Kessimian, Robert K. Taylor, and Partridge, Snow, & Hahn LLP were on brief for appellant/cross-appellee.
C. Dylan Sanders, with whom Lisa C. Goodheart and Sugarman, Rogers, Barshak, and Cohen, P.C. were on brief for New Albertson's, Inc.; Jewel Food Stores, Inc.; Star Markets Company, Inc.; and Hyde Park Manager, Inc.
Jonathon C. Burwood, with whom Hinshaw and Culbertson LLP were on brief for Alfa Laval, Inc.
John T. Harding, with whom Lewis, Brisbois, Bisgaard, & Smith LLP were on brief for appellee/cross-appellant Boston Renaissance Charter School, Inc. and Boston Renaissance Charter Public School.
Eric L. Klein, with whom Marc J. Goldstein, Brook Detterman, and Beveridge & Diamond, P.C. were on brief for Siemens Industry, Inc. and Allis-Chalmers Energy, Inc.
A. Neil Hartzell, with whom LeClair Ryan, A Professional Corporation were on brief for Jeanette Yukon.
Carolyn M. Miller, with whom Matthew C. Welnicki and Melick & Porter, P.C. were on brief for Dampney Company, Inc.
Before Howard, Chief Judge, Selya and Barron, Circuit Judges.
In 2007, at the direction of the Massachusetts Department of the Environment ("MassDEP"), an extensive cleanup of Mother Brook, a canal in Boston, Massachusetts, began following its contamination by polychlorinated biphenyls ("PCBs"). The cleanup ultimately resulted in a 2010 lawsuit in which two parties -- Thomas & Betts and New Albertson's -- brought Massachusetts law claims in the United States District Court for the District of Massachusetts against each other and various third parties. The claims, which were primarily brought under § 4 of Chapter 21E, see Mass. Gen. Laws ch. 21E, § 4, sought reimbursement for the money that Thomas & Betts and New Albertson's each had spent on the cleanup.
After a lengthy trial, a jury rendered a special verdict. The jury found, among other things, that Thomas & Betts was "liable to" New Albertson's under § 4 of Chapter 21E for a portion of what are known as the response costs that New Albertson's had incurred in connection with the cleanup of the canal. The jury also found that other parties (but not New Albertson's) were "liable to" Thomas & Betts under § 4 of Chapter 21E for various portions of the response costs that it had incurred in the cleanup. The jury then allocated the percentage of the response costs that each of the various parties were responsible for reimbursing to, respectively, New Albertson's and Thomas & Betts.
The District Court entered judgment based on the jury's special verdict and awarded prejudgment interest, under § 6B or § 6H of Chapter 231, without specifying which applied, to New Albertson's and Thomas & Betts on the funds that had been awarded to each of them on their § 4 claims. The District Court then entered a separate judgment in which it awarded New Albertson's attorney's fees under § 15 of Chapter 21E. The consolidated appeals that are now before us concern both judgments. We affirm each of them.1
To understand the many issues that we need to address, we first provide some background on Chapter 21E and the cleanup of Mother Brook. We then review the travel of the litigation.
Chapter 21E is the Massachusetts version of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 - 28. See John S. Boyd Co. v. Boston Gas Co., 992 F.2d 401, 404 n.3 (1st Cir. 1993). The Massachusetts Supreme Judicial Court ("SJC") has explained that Chapter 21E, like its federal analogue, seeks "to compel the prompt and efficient cleanup of hazardous material and to ensure that costs and damages are borne by the appropriate responsible parties."
Bank v. Thermo Elemental Inc., 451 Mass. 638, 888 N.E.2d 897, 911 (2008) (quoting Taygeta Corp. v. Varian Assocs., 436 Mass. 217, 763 N.E.2d 1053, 1059 (2002) ). To that end, whenever the MassDEP "has reason to believe" that "hazardous material has been released" or that there is a "threat" of such a release, it "is authorized to take or arrange for such response actions as it reasonably deems necessary." Mass. Gen. Laws ch. 21E, § 4.
Section 4 further provides that, when the MassDEP has reason to believe that there has been such a release or the threat of one, it must notify the "owner or operator of the site ... of its intent to take such action," except under certain circumstances not relevant here.2 Id. Section 4 then provides that "[a]ny person who undertakes a necessary and appropriate response action regarding the release or threat of release of ... hazardous materials shall be entitled to reimbursement from any other person liable for such release or threat of release for the reasonable costs of such response action." Id. And, § 4 provides as well, "[i]f two or more persons are liable pursuant to section five [of Chapter 21E] for such release or threat of release, each shall be liable to the others for their equitable share of the costs of such response action." Id.
Section 5(a) in turn spells out the "person[s]" who are "liable" for such release or threat of release and to whom they are "liable."3 The "person[s]" who are "liable" pursuant to § 5 for a release or threat of such release include, in relevant part: "the owner or operator of ... a site from or at which there is or has been a release or threat of release of oil or hazardous material," id. § 5(a)(1); "any person who at the time of storage or disposal of any hazardous material owned or operated any site at or upon which such hazardous material was stored or disposed of and from which there is or has been a release or threat of release of hazardous material," id. § 5(a)(2); and "any person who otherwise caused or is legally responsible for a release or threat of release of oil or hazardous material from a ... site," id. § 5(a)(5). A "person" described in § 5(a) is, under § 5(a)(i), "liable ... to the [C]ommonwealth [of Massachusetts] for all costs of assessment, containment and removal incurred ... relative to such release or threat of release;" and, under § 5(a)(iv), "liable ... to any person for any liability that another person is relieved of pursuant to [ Mass. Gen. Laws ch. 21E, § 4.]"
These portions of the statute are relatively straightforward. There is, however, one additional point about the statute that is critical to bear in mind in considering the analysis that follows, though it is quite technical. The point is this.
Section 5(b) recognizes that a "person who is liable solely pursuant to [§ 5(a)(1) ]" -- a so-called "current owner" -- is "liable to" other current owners and is "liable to" the Commonwealth. Id. § 5(b). But, § 5(b) provides that such a current owner in some circumstances may not be "liable to" any other"person[s]" who are described in § 5(a). Specifically, § 5(b) provides that a current owner is not "liable to" any "person who is liable pursuant to" §§ 5(a)(2)-(5), if the current owner can show that (1) it "did not own or operate the site at the time of the release or threat of release in question" and (2) it "did not cause or contribute to such release or threat of release." Id.
The upshot of this limitation in § 5(b) -- by virtue of how §§ 5(a)(1) and 5(b) interact both with each other and with § 4 -- is the following. A "person" may be "liable" within the meaning of § 5 -- for example, by virtue of being "liable to the [C]ommonwealth" under § 5(a)(1), in consequence of owning a site from which there "has been a release" -- and yet not be "liable to" a "person" who seeks reimbursement under § 4 for the costs that it incurred in connection with a response action that it undertook in consequence of that release. Id. And, as we will see, this limitation on liability in § 4, arising from § 5(b), bears directly on a number of the issues that we must address in these appeals.
There is one final statutory provision that warrants much briefer mention. Section 4A of Chapter 21E creates a cause of action premised on the liability that § 4 imposes. It provides that parties may seek reimbursement from other parties, based on their liability under § 4, for the costs that they have incurred in undertaking response actions. Specifically, § 4A provides that "any person who has given notice pursuant to this section may commence a civil action in the superior court department of the trial court seeking from the notice recipient contribution, reimbursement or an equitable share of the costs of such response action or of such actual or potential liability." Id. § 4A.4
There are also certain Massachusetts regulations that are useful to understand. That is because the MassDEP implements Chapter 21E through the Massachusetts Contingency Plan (the "Plan"), 310 Mass. Code Regs. 40. See Mass. Gen. Laws ch. 21E, § 3(b).
The Plan defines a ...
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