Beauregard v. Town of Oxford

• Decision Date: 16 September 2022
• Docket Number: Civil Action 21-40118- TSH
• Parties: MATHIEU AND AMI BEAUREGARD, Plaintiffs v. TOWN OF OXFORD and ARTHUR ROSSI, dba ROSSI'S CLEANERS Defendant.
• Court: U.S. District Court — District of Massachusetts

MATHIEU AND AMI BEAUREGARD, Plaintiffs
v.
TOWN OF OXFORD and ARTHUR ROSSI, dba ROSSI'S CLEANERS Defendant.

Civil Action No. 21-40118- TSH

United States District Court, D. Massachusetts

September 16, 2022

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT TOWN OF OXFORD'S MOTION TO DISMISS September 16, 2022

TIMOTHY S. HILLMAN, SENIOR, DISTRICT JUDGE

Introduction

Plaintiffs Mathieu and Ami Beauregard (“Plaintiffs”) have filed this negligence action against the Defendants Town of Oxford (“Defendant Town” or “The Town”) and Arthur Rossi, dba Rossi's Cleaners after elevated levels of the chemical trichloroethylene (TCE) were discovered in their private drinking water well. The Plaintiffs filed their complaint in July 2021 in Worcester Superior Court and the matter was subsequently removed to this Court after the Complaint was amended to add a claim under 42 U.S.C. § 1983. The Town now moves to dismiss all counts against it under Rule 12 (b)(6). For the reasons that follow, the motion to dismiss is granted.

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Background

The following facts, taken from the complaint, are accepted as true for the purposes of this motion. See Rosenberg v. City of Everett, 328 F.3d 12, 15 (1st Cir. 2003). Plaintiffs Mathieu and Ami Beauregard are married and are the former residents of the property at issue located at 6 Cherdon Lane, in the town of Oxford, Massachusetts (the “Property”). Defendant Rossi's Cleaners was a company doing business in Massachusetts with a principal place of business at 720 West Main St., Oxford MA (“the Site”).

In 1989, when the Site was owned by Rossi's predecessor Dry Vin Cleaners, there was a release of chlorinated hydrocarbons including TCE and perchlorethene (“PCE”) from the Site into the groundwater. TCE and PCE are hazardous materials according to the Massachusetts Contingency Plan (“MCP”) See 310 C.M.R. 40. The Massachusetts Department of Environmental Protection (“DEP”) issued a Notice of Responsibility pursuant to Mass. Gen. L. c 21E to Dry Vin Cleaners for the release of the chemicals. DEP assigned a Release Tracking Number (“RTN”) to the Site. In connection with remediation work at the Site over the subsequent decades, several monitoring wells were installed in the area. The monitoring wells detected levels of TCE and PCE above permissible levels between 1989 and 1992. Subsequent tracking of private drinking water wells in the area led to the issuance of other RTNs associated with the Site, each issued due to exceedances of TCE and other chemicals. As the Property is down gradient from the Site, the chemicals migrated through the groundwater into the drinking water well on the Property. From 1990 to 2017, Arthur Rossi, doing business as Rossi's Cleaners. owned and operated the dry-cleaning facility at the Site.

In 2014, while the Property was vacant, property managers NRT REO Experts subcontracted the management duties to Spectrum Field Services who then hired Innovative

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Property Solutions to perform maintenance on the Property. Spectrum oversaw Innovative during the process of demolishing the existing single-family home on the Property and preparing the Property for resale. While conducting a test of the drinking water well, Spectrum and Innovative found concentrations of TCE at 777 ug/liter, exceeding the permissible level of TCE in drinking water in Massachusetts of 5 ug/liter. Neither Spectrum nor Innovative notified the DEP of the test results. Instead, they filed the 2014 water test results were filed with the Town, which took no action with regard to the results.

In 2016, Leveille Construction bought the Property and built a new home on it for which the Town issued an occupancy permit. Plaintiffs purchased the Property in May 2017. When the Plaintiffs bought the Property, all water for drinking and household use was received from the private drinking water well on the Property. In May 2018, a test of the well on the Property revealed a TCE concentration of 955 ug/liter. The Plaintiffs took steps to remediate the water from the well, however their...