972 F.2d 453 (1st Cir. 1992), 91-2116, Dedham Water Co., Inc. v. Cumberland Farms Dairy, Inc.

Docket Nº:91-2116.
Citation:972 F.2d 453
Party Name:DEDHAM WATER CO., INC., et al., Plaintiffs, Appellants, v. CUMBERLAND FARMS DAIRY, INC., Defendant, Appellee.
Case Date:August 18, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 453

972 F.2d 453 (1st Cir. 1992)

DEDHAM WATER CO., INC., et al., Plaintiffs, Appellants,


CUMBERLAND FARMS DAIRY, INC., Defendant, Appellee.

No. 91-2116.

United States Court of Appeals, First Circuit

August 18, 1992

Heard May 6, 1992.

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[Copyrighted Material Omitted]

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Thomas F. Holt, Jr., with whom Gerald P. Tishler, Franklin G. Stearns, Laurel A. Mackay, and Brown, Rudnick, Freed & Gesmer, P.C., Boston, Mass., were on brief, for plaintiffs, appellants.

Allan van Gestel, with whom Christopher P. Davis, A. Lauren Carpenter, and Goodwin, Procter & Hoar, Boston, Mass., were on brief, for defendant, appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and PETTINE, [*] Senior District Judge.

SELYA, Circuit Judge.

This appeal represents the final voyage of a case that has persisted in the federal courts for nearly a decade. Finding, as we do, that the judgment below is fully supportable, we affirm.


Because these waters have been so thoroughly charted, we merely sketch the background insofar as is necessary to set this appeal and the underlying litigation into perspective.


Plaintiff-appellant Dedham-Westwood Water District (which, together with its predecessor in interest, Dedham Water Company, we shall call "Dedham") is a regulated public utility. It supplies drinking water to some 40,000 persons who reside in the Massachusetts towns of Dedham and Westwood. One source of this water is the White Lodge Well Field. The well field lies in an industrial park along the west bank of the Neponset River. Defendant-appellee Cumberland Farms Dairy, Inc. ("Cumberland") operates a truck maintenance facility on the river's east bank.

In March 1979, Dedham discovered that two wells were contaminated with volatile organic chemicals (VOCs). It removed the wells from service, contacted the Massachusetts Department of Environmental Quality Engineering (DEQE), sought alternative water supplies, and began a somewhat haphazard investigation aimed at fixing responsibility for the pollution. This investigation included a series of surface-water tests.

In June 1979, Dedham began to pump the contaminated wells to waste. Shortly thereafter, it hired two consultants, Calgon Corporation and Metcalf & Eddy, to assess treatment alternatives. In early 1980, Dedham's governing board budgeted a sum of money to pay Metcalf & Eddy for designing a two-stage treatment plant that would deal with both the VOC problem and a separate water-quality issue. In July 1981, Dedham submitted plans for the treatment plant to DEQE. Before year's end, Dedham publicly announced that it would build the treatment plant at White Lodge.

A few months prior to this announcement, a Dedham employee discovered VOCs in a drainage ditch running from Cumberland's property. Dedham promptly hired Geraghty & Miller ("G & M"), a firm specializing in hydrogeology, to investigate the source of the contamination and determine

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the zone of capture. In January 1982, a drawdown test conducted by G & M established that the Neponset River was not a barrier to the flow of contaminants; theoretically, contaminants could flow under the river and into the well field. G & M proceeded to sink test wells in and around the White Lodge field. In July of 1982, it identified Cumberland as a likely source of pollutants. Three months later, G & M reported that, in its opinion, Cumberland was the major cause of the White Lodge contamination.

The G & M report heralded the start of the instant litigation. Invoking the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601-9675 (1988), and its state-law counterpart, Mass.Gen.L. Ch. 21E (1990 & Supp.1991), Dedham sued Cumberland in federal district court. It asserted claims for response costs incurred as a result of actual and threatened contamination at the well field.

As the suit plodded toward trial, the planned treatment plant was slowed by zoning questions, neighbors' objections, dissatisfaction on DEQE's part, and a gaggle of other roadblocks. After appellant redesigned the plant to feature lower aerating towers and better emission controls, these problems dissipated. DEQE granted a permit. Construction began in 1985 and the treatment plant went on line in early 1987.

Appellant's court case progressed more deliberately. It took four full years to overcome a jurisdictional obstacle. 1 When the case was finally tried, Dedham did not succeed in proving that Cumberland was the source of the contamination. The district court (Tauro, J.) entered judgment for the defendant. Dedham Water Co. v. Cumberland Farms Dairy, Inc., 689 F.Supp. 1223 (D.Mass.1988) ("First Trial Op."). Dedham appealed on the basis of Judge Tauro's purported failure to examine an alternative theory of liability under CERCLA and Chapter 21E, viz., whether Cumberland, although not guilty of causing the discovered contamination, may nevertheless have posed an actionable threat of future contamination, to which Dedham responded in an objectively reasonable (if costly) manner. We directed the district court to revisit this aspect of the matter. Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146 (1st Cir.1989) ("Earlier Merits Appeal " or "EMA "). We also decided that a new trier should preside. See In re Dedham Water Co., 901 F.2d 3, 4-5 (1st Cir.1990) (per curiam) (interpreting D.Mass.Loc.R. 8(i)).


Before setting sail, we deem it imperative (a) to delineate the narrow perimeters within which the further proceedings on remand were to be conducted and (b) to report the outcome of those proceedings. In the first trial, appellant was unable to "prove[ ] that the contaminants released by Cumberland Farms had migrated to the [White Lodge] wells." EMA, 889 F.2d at 1149. Dedham did not challenge this ruling on appeal. Hence, the issue could not be resurrected during the second trial. From that point forward, it had to be taken as gospel that Cumberland "was not liable for the expenses incurred by Dedham ... in investigating the cause of the pollution to its wells and rectifying [that pollution]." Id. The only issue that remained open at the second trial was whether Cumberland's "releases (or threatened releases) might nonetheless have caused the plaintiff to incur 'response costs' even though those releases did not in fact contaminate the wells." Id. at 1157 (emphasis in original).

Phrased another way, the pre-remand proceedings conclusively determined that Cumberland was not legally responsible for contaminating the White Lodge well field. Therefore, to the extent that appellant's activities--e.g., retaining consultants, performing scientific studies, building the

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treatment plant--were in response to actual contamination, Cumberland was home free. But, polluting substances that stopped short of the well field's boundary could conceivably have caused the appellant to incur expenses compensable under CERCLA. Id. at 1151-54, 1157-58. If, and to the extent that, Cumberland posed such a threat, and Dedham acted in response thereto, Cumberland might be held liable. Since the district court had neglected to make a finding on this point, further proceedings were required.

The second trial was perforce limited to a resolution of this issue and, if the district court found in appellant's favor, an assessment of damages. The case was redrawn to Judge Skinner. After taking additional testimony, he determined that appellant had not incurred any response costs as a result of releases, or the threat of releases, attributable to appellee. Dedham Water Co. v. Cumberland Farms Dairy, Inc., 770 F.Supp. 41 (D.Mass.1991) ("Second Trial Op."). Dedham appeals. We affirm.


When a district court makes findings of fact in a bench trial, the clear-error standard pertains. See Fed.R.Civ.P. 52(a); see also Gopher Oil Co. v. Union Oil Co., 955 F.2d 519, 526 (8th Cir.1992) (clear-error standard applies to district court's findings of fact in CERCLA cases). Consequently, the court of appeals must defer in considerable measure to the nisi prius court. Findings of fact will be given effect unless, after reading the record with care and making due allowance for the trier's superior ability to gauge credibility, the reviewing court "form[s] a strong, unyielding belief that a mistake has been made." Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152 (1st Cir.1990). In this process, equal respect is afforded to the district court's evaluation of documentary and testimonial evidence, Reliance Steel Prods. Co. v. National Fire Ins. Co., 880 F.2d 575, 576 (1st Cir.1989); and, moreover, the same high level of respect attaches whether "the conclusions of the trial court depend on its election among conflicting facts or its choice of which competing inferences to draw from undisputed basic facts." Irons v. FBI, 811 F.2d 681, 684 (1st Cir.1987).

As a general rule, causation questions are grist for the factfinder's mill, see, e.g., Peckham v. Continental Cas. Ins. Co., 895 F.2d 830, 837 (1st Cir.1990), and thus, are within the traditional scope of clear-error review. Where causation is in issue, "[n]ot only ordinary fact questions, but also 'evaluative applications of legal standards ... to the facts' are properly [for the factfinder]." Springer v. Seaman, 821 F.2d 871, 876 (1st Cir.1987) (citations and footnote omitted). We see nothing about the issue of causation in a CERCLA case that would serve either to sidetrack these principles or to reconfigure their application. See, e.g., United States v. R.W. Meyer, Inc., 889 F.2d 1497, 1507 (6th Cir.1989) (reviewing finding of causation in CERCLA case for clear error), cert. denied, 494...

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