Com. v. Boston Edison Co.

• Decision Date: 25 May 2005
• Citation: 828 N.E.2d 16,444 Mass. 324
• Parties: COMMONWEALTH & others<SMALL><SUP>1</SUP></SMALL> v. BOSTON EDISON COMPANY & others.<SMALL><SUP>2</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

828 N.E.2d 16

444 Mass. 324

COMMONWEALTH & others¹ v. BOSTON EDISON COMPANY & others.²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued February 8, 2005.

Decided May 25, 2005.

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Matthew Brock, Assistant Attorney General, Boston, for the Commonwealth.

George E. Olson for Massachusetts Convention Center Authority.

Roy P. Giarrusso (Joseph L. Harrington, III, North Quincy, & Curtis A. Connors with him) for Boston Edison Company.

Jack K. Merrill, Wellesley, for Sak Recycling Corporation.

Leonard H. Freiman, Boston, for Boston Redevelopment Authority, was present but did not argue.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

COWIN, J.

The plaintiffs in this case, the Commonwealth, the Boston Redevelopment Authority (BRA), and the Massachusetts Convention Center Authority (MCCA), seek to recover costs allegedly incurred as part of a cleanup they undertook of a hazardous waste site (site) that had previously been owned by the defendants Sak Recycling Corporation, Walter Fiore and Fiore Construction Company (collectively, the Sak defendants). Defendant Boston Edison Company (Boston Edison) had, over a period of many years, disposed of material at the site. The plaintiffs' claims arise under the Massachusetts Oil and Hazardous Material Release Prevention Act, G.L. c. 21E, for past and future reimbursement of costs associated with cleaning the polluted site (response costs). In particular, the Commonwealth seeks to recover funds expended by the Department of Environmental Protection (the department) and the Executive Office of Administration and Finance (A & F), while the BRA and MCCA independently seek reimbursement of their own costs (and do not assert recovery as agents of the Commonwealth). The plaintiffs also seek declaratory and injunctive relief under G.L. c. 21E, as well as common-law restitution.

The plaintiffs moved for summary judgment, and the trial judge denied the plaintiffs' motion insofar as it sought to hold the defendants jointly and severally liable for the alleged response costs. The basis for the judge's denial of joint and several liability was her conclusion that the Commonwealth, the BRA, and MCCA were all liable parties within the meaning of G.L. c. 21E, § 5(a), and therefore the plaintiffs' claims all "sound[ed] in contribution" under G.L. c. 21E, § 4. The judge determined that the Commonwealth was a liable party, presumably under G.L. c. 21E, § 5(a)(5) (as a party who "otherwise caused or is legally responsible" for the contamination), on the theory that it had waited too long to prosecute the case, and that the BRA and MCCA were likewise liable parties pursuant to § 5(a)(1) (as present and future owners and operators of the site).³ The judge granted the plaintiffs' motions to report issues related to her summary judgment decision under Mass. R. Civ. P. 64, as amended, 423 Mass. 1410 (1996), and we granted the plaintiffs' applications for direct appellate review.

Our review of the judge's ruling presents us with the following questions of law concerning the meaning of, and relationship between, G.L. c. 21E, §§ 4 and 5(a): (1) whether, on this record, the Commonwealth is a liable party under G.L. c. 21E, § 5(a); (2) whether the Commonwealth is entitled to pursue joint and several liability for its claims against the defendants under G.L. c. 21E, §§ 4 or 5; (3) whether, on this record, the BRA and MCCA are liable parties under § 5(a) of the statute; and (4) whether joint and several liability is available for the BRA's and MCCA's claims against the defendants under § 4. The Commonwealth argues that it is not liable under the statute and that G.L. c. 21E, § 5(a), expressly establishes its right to pursue joint and several liability against all the defendants. Boston Edison contends instead that the Commonwealth is a liable party under G.L. c. 21E, § 5(a) (5), for having "otherwise caused or [being] legally responsible" for contamination at the site due to its delay in taking enforcement action. The defendants also assert that the Commonwealth may only seek several liability⁴ under G.L. c. 21E § 4. With respect to the BRA and MCCA, the defendants argue that those plaintiffs are liable as "owners or operators" of the site under G.L. c. 21E, § 5(a) (1) or (2), and as parties who "otherwise caused or [are] legally responsible for a release" under § (5) (a) (5). The BRA and MCCA counter that they are expressly exempt from liability as "owners or operators," and that, as nonliable parties, they are entitled to joint and several liability under G.L. c. 21E, § 4. We hold that neither the Commonwealth, the BRA, nor MCCA are liable parties as defined by G.L. c. 21E, § 5(a), and that each may pursue damages jointly and severally against any or all liable defendants under the statute.

Statutory scheme. We begin with a brief summary of the relevant statutory scheme. General Laws c. 21E, added by St.1983, c. 7, § 5, establishes a comprehensive statutory scheme governing the cleanup of sites contaminated with hazardous material. See Taygeta Corp. v. Varian Assocs., Inc., 436 Mass. 217, 223, 763 N.E.2d 1053 (2002). The statute confers upon the department the primary authority for implementing its provisions. See generally G.L. c. 21E, §§ 3, 3A, 4. The Commonwealth may expend funds for environmental cleanup, see G.L. c. 21E, § 4, and then recover its costs and obtain injunctive and additional relief in a judicial enforcement action brought by the Attorney General. G.L. c. 21E, 11.

Section 4 of the statute governs the department's authority to respond to the release or threat of release of hazardous material. It further allows other persons (beyond the department) to undertake proper response actions and entitles those persons to "reimbursement, contribution or equitable share" payments for their remediation costs. See G.L. c. 21E, § 4.

Section 5(a) defines the five categories of persons liable under the statute for the costs of assessment, containment and removal of hazardous material "without regard to fault":

"(1) the owner or operator of a vessel or a site from or at which there is or has been a release or threat of release of oil or hazardous material; (2) 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; (3) any person who by contract, agreement, or otherwise, directly or indirectly, arranged for the transport, disposal, storage or treatment of hazardous material to or in a site or vessel from or at which there is or has been a release or threat of release of hazardous material; (4) any person who, directly, or indirectly, transported any hazardous material to transport, disposal, storage or treatment vessels or sites from or at which there is or has been a release or threat of release of such material; and (5) any person who otherwise caused or is legally responsible for a release or threat of release of oil or hazardous material from a vessel or site."

G.L. c. 21E, § 5 (a). Such persons are liable "to the commonwealth for all costs" of such assessment, containment and removal and with certain exceptions, "such liability shall be joint and several."⁵ Id.

Background.

1. Facts. We summarize the undisputed material facts. From 1947 to 1992, Louis Freeman and his estate owned and operated the site as a junkyard known as Boston Junk. From the 1940's to the 1980's, Boston Edison contracted with Boston Junk to dispose of its transformers, cable, wire, and electrical equipment at the site. In 1984, the Department of Environmental Quality Engineering (DEQE)⁶ filed a report with the Commonwealth detailing the presence of hazardous materials at the site. On December 1, 1987, the DEQE issued a notice of responsibility (NOR) to Boston Edison pursuant to G.L. c. 21E, stating that it had determined that a release of hazardous materials had occurred at the site, and that its information indicated that Boston Edison is a "liable and `responsible'" party under G.L. c. 21E, § 5(a). The NOR also set forth the requisite investigatory actions to be taken by Boston Edison concerning the site, and warned that if Boston Edison did not implement those investigatory actions, it would be liable to the Commonwealth for the costs of assessment, containment, and removal of the contamination, pursuant to an enforcement action under G.L. c. 21E, § 11. The Commonwealth alleges that, subsequent to the NOR, Boston Edison did not carry out the necessary and appropriate actions at the site.

In 1992, the estate of Louis Freeman sold the site to the Sak defendants. As part of their operations, the Sak defendants moved piles of scrap, including contaminated materials, from location to location on the site between 1992 and 1996. In 1997, the Legislature enacted St.1997, c. 152, which authorized the development of the new Boston Convention Exhibition Center in the South Boston section of Boston (Convention Center legislation). This legislation grants the BRA the power to take property by eminent domain in order to effectuate the Convention Center legislation's purposes. Id. at § 3(a). In 1999, pursuant to this statutory authority, the BRA acquired most of the site by eminent domain for the purpose of constructing the new Boston Convention Exhibition Center. The Convention Center legislation provides that the Commonwealth, through A & F, is responsible for funding a portion of the development with the BRA, including some costs of remediating contamination on the site. Id. at §§ 1A, 2, 6. Pursuant to a land disposition agreement between the BRA and MCCA, the BRA is primarily responsible for environmental response costs, with the MCCA engaging in and paying for certain response actions. The plaintiffs allege that the...