Branch Metal Processing, Inc. v. Boston Edison Co.
| Decision Date | 05 December 1996 |
| Docket Number | Civil Action No. 93-444ML. |
| Citation | 952 F.Supp. 893 |
| Parties | BRANCH METAL PROCESSING, INC., Branch Processing, Inc., Branch Trading Company, Inc., and Sam-Man Realty Corp. v. BOSTON EDISON COMPANY, James G. Grant Co., Inc., Bull HN Information Systems, Inc., Joseph Freedman Company, Inc., R.S.T. Reclaiming Co., Inc., Gemini Trading Corporation, Shetucket Iron and Metal Company, Inc., and Prouvost USA, Inc. |
| Court | U.S. District Court — District of Rhode Island |
Renee S. Menard, Robert Clark Corrente, Providence, RI, for Branch Metal Processing, Inc., Branch Processing, Inc., Branch Trading Company, Inc.
John J. Bevilacqua, Robert Clark Corrente, Providence, RI, for Sam-Man Realty Corp.
Brooks R. Magratten, Providence, RI, Francis J. Sally, Paul M. McDermott, Boston, MA, Jonathan W. Fitch, Andrea Peraner-Sweet, Providence, RI, for Boston Edison Company.
Mark O. Denehy, Providence, RI, Richard F. Kerr, Braintree, MA, for James G. Grant Co., Inc.
James H. Reilly, III, Providence, RI, for Bull HN Information Systems, Inc.
Dennis T. Grieco, II, Providence, RI, for R.S.T. Reclaiming Co., Inc.
Richard A. Sherman, Providence, RI, Steven M. Richard, Peter J. McGinn, Providence, RI, for Shetucket Iron & Metal Company, Inc.
This matter is before the court on the objections of defendant Boston Edison Company ("Boston Edison") to two Reports and Recommendations issued by United States Magistrate Judge Timothy M. Boudewyns. In those Reports and Recommendations, dated January 6, 1995 and April 25, 1996, Magistrate Judge Boudewyns recommended that this court deny Boston Edison's various motions for summary judgment. For the reasons stated below, this court adopts Magistrate Judge Boudewyns's recommendations.
Boston Edison, a Massachusetts corporation, is an electric utility serving residential, municipal, commercial, and industrial customers in eastern Massachusetts. Boston Edison services forty cities and towns covering a 600 square mile area, and generates power at plants located in Everett, South Boston, and Plymouth, Massachusetts. In addition, Boston Edison owns a number of facilities that are used in the construction, maintenance, and repair of its system, the largest of which is the Boston Service Center in Dorchester, Massachusetts.
Electricity moves around the Boston Edison system over cable and line wire. "Cable" is buried underground or laid within underground tunnel systems accessed through manholes. "Line wire" is strung from utility poles and other above-ground structures. Boston Edison estimates that its cable and line wire covers approximately 3,900 miles of Massachusetts streets and roads, and requires constant maintenance and repair.
The cable and line wire used by Boston Edison is routinely removed from service for any of a variety of reasons. Once removed, the cable and line wire is of no use to Boston Edison in the provision of its services; however, it does have value on the metals markets. For this reason, it has long been Boston Edison's practice to gather its "scrap" cable and line wire and sell it, along with other metals and metal items, such as streetlights, to scrap metal vendors.
On or about March 24, 1987, Boston Edison, through its Purchasing and Stores and Services Departments, prepared a Request for Quotation ("RFQ") to be sent to selected scrap metal vendors. The RFQ, # 51415, amounted to a solicitation of bids for a contract for the "sale/disposal of all scrap metals" from its various facilities in the Greater Boston area. RFQ # 51415, at 1. The RFQ contained specifications describing the scope of work, pricing, and pick-up procedures, as well as a form price sheet. The agreement further provided that its term would be two years, "with an option to extend for a third year from date of notification to the successful bidder." Id.
The James G. Grant Co., Inc. ("Grant") is a Massachusetts corporation whose principal place of business is located in Readville, Massachusetts. Grant has no offices or facilities in Rhode Island. Grant's business includes demolition contracting, scrap processing, heavy equipment rental, rigging, and the removal and replacement of large fuel storage tanks.
Grant responded to RFQ # 51415 and was eventually awarded the contract by Boston Edison. Grant began to purchase Boston Edison's scrap, which included streetlights that had been removed from service, on or about August 17, 1987. Boston Edison never placed any restrictions on the destination of the scrap, including the streetlights.
In August 1989, Boston Edison began the RFQ process anew and tendered RFQ # 51730 for consideration to various scrap metal dealers, including Grant. Boston Edison included an addendum ("Addendum I") to this RFQ which subjected the scrap metal dealer to whom the RFQ was awarded to abide by, inter alia, three provisions. First, the scrap metal dealer was required to obtain all necessary permits and licenses, and to conform to all applicable federal and state laws, with respect to its handling, use, transportation, storage, and disposal of the scrap. Second, Boston Edison reserved the right to inspect the dealer's premises and operation to "verify the existence of applicable permits or licenses required in connection with the handling, use, transportation, storage and disposal" of the scrap. Addendum I, at ¶ 9. Third, the scrap dealers were required to obtain "environmental impairment liability insurance," see id. at ¶ 6, and to indemnify Boston Edison for "any and all loss, damage or liability [Boston Edison] may suffer as a result of the Purchaser's handling, use, transportation, storage and disposal" of the scrap, see id. at ¶ 5. These provisions were not incorporated in RFQ # 51415, although they have been included in all RFQs tendered subsequent to RFQ # 51730.
In 1990, Rick Gosselin, an employee authorized to purchase scrap metals for both the Branch Trading Company, Inc. ("Branch Trading") and Branch Processing, Inc., visited Grant's facilities and inquired of Charles Jamieson, an employee of Grant, as to the possibility of purchasing scrap metal, including streetlights, from Grant. The parties reached two agreements, and on January 31, 1990 and April 6, 1990, two loads of streetlights from Grant's scrap yard were delivered to a facility leased by the Branch Companies for their operations ("Branch site"). These loads weighed 17,100 and 18,700 pounds, respectively.
The streetlights, which were purchased for their aluminum content, were allegedly placed into a large, outdoor shredding system at the Branch site. The shredding system purportedly condensed the metal and separated the valuable aluminum from other less valuable or worthless metals comprising the lighting fixture. The plaintiffs contend that when the machinery engulfed the aluminum light fixture to break it down, oil containing polychlorinated biphenyls ("PCBs") was released, covering the equipment and its conveyor belts and spilling onto the ground.1 While Boston Edison generally disputes the fact that the streetlights in question contained any PCBs, it concedes this point for purposes of its summary judgment motions.
PCBs are complex compounds that are nonflammable and have excellent dielectric properties, meaning that they exhibit low electrical conductivity. Because of these qualities, PCBs were commonly used as coolants and lubricants in transformers, capacitors, and other electrical equipment prior to the mid-1970s. At that time, Congress enacted the Toxic Substances Control Act, which required, inter alia, the promulgation of PCB regulations by the United States Environmental Protection Agency.
The release of the PCBs allegedly shutdown the shredding system. The plaintiffs were thereafter required to retain the services of Jetline Services, Inc., an environmental cleanup company, to decontaminate the shredding system and the soil beneath it.
On August 19, 1993, the plaintiffs filed a three-count complaint against Boston Edison and Grant. In Count I, the plaintiffs alleged that Boston Edison and Grant were liable for the costs of cleaning up the property pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"). In Count II, the plaintiffs alleged that Boston Edison and Grant "knowingly, wrongfully, and maliciously placed hazardous waste upon Plaintiff Sam-Man Realty's property constituting a trespass on that property." In Count III, the plaintiffs alleged that Boston Edison and Grant "unreasonably and materially interfered with Plaintiff Branch Companies [sic] reasonable use and enjoyment of their leased premises constituting a private nuisance." In their answers, Boston Edison and Grant cross-claimed each other for contribution and indemnification.
On September 1, 1994, Boston Edison filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, as well as a statement of undisputed facts in support of the motion. Boston Edison argued that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law on two grounds: (1) that this court had no in personam jurisdiction over Boston Edison; and, (2) that the plaintiffs and Grant could not establish the essential elements of each of their claims.
Grant objected to the motion and filed a statement of disputed facts as required by Local Rule 12.1. See D.R.I.Loc.R. 12.1. The plaintiffs also objected to the motion and filed their own statement of undisputed facts. In addition, the plaintiffs filed a motion for partial summary judgment on the issue of liability under § 107(a)(3) of CERCLA. In so doing, the plaintiffs did not oppose, either factually or legally, Boston...
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