Dedham Water Co. v. Cumberland Farms Dairy, Inc., Civ. A. No. 82-3155-MC.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtMcNAUGHT
PartiesDEDHAM WATER COMPANY, Plaintiff, v. CUMBERLAND FARMS DAIRY, INC., Defendant.
Docket NumberCiv. A. No. 82-3155-MC.
Decision Date03 May 1983

588 F. Supp. 515

DEDHAM WATER COMPANY, Plaintiff,
v.
CUMBERLAND FARMS DAIRY, INC., Defendant.

Civ. A. No. 82-3155-MC.

United States District Court, D. Massachusetts.

May 3, 1983.


Thomas F. Holt, Jr., Edward I. Selig, Joanne Kadishi, Lawrence S. DiCara, DiCara, Selig & Holt, Boston, Mass., John R. Cope, Bracewell & Patterson, Washington, D.C., for plaintiff.

Allan Van Gestel, Goodwin, Procter & Hoar, Boston, Mass., for defendant.

588 F. Supp. 516

MEMORANDUM AND ORDER

McNAUGHT, District Judge.

In this action, filed on October 21, 1982, the plaintiff seeks injunctive relief and damages allegedly arising out of the defendant's releases of hazardous materials which have leached into the aquifer underlying the "White Lodge Well Field" owned and used by the plaintiff to provide water to the communities of Dedham and Westwood. The plaintiff seeks relief under (1) the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251, et seq. (Clean Water Act); (2) the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901, et seq. (RCRA); (3) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq. (CERCLA); (4) the Massachusetts Clean Waters Act, M.G.L. c. 21, § 27(14); and (5) Massachusetts common law.

The defendant has moved for dismissal of the complaint on the grounds that none of the three federal statutes provides an implied private right of action and that the plaintiff has failed to comply with certain pre-suit requirements. In addition, the defendant contends that the plaintiff has failed to meet the pre-suit requirements in the Massachusetts Clean Waters Act and that without a claim under the federal statutory counts there is no pendent jurisdiction over the state law counts.

The plaintiff filed suit on October 21, 1982 after sending formal notice letters to the defendant, the Commonwealth of Massachusetts, and the EPA on October 8, 1982.

I. Clean Water Act Claim

In Count IV of its complaint, the plaintiff seeks to enjoin the defendant's releases of hazardous materials into the Neponset River. Section 1365 of Title 33 expressly authorizes private citizens to seek injunctive relief to enforce the provisions of the Clean Water Act. See Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 14, 101 S.Ct. 2615, 2623, 69 L.Ed.2d 435 (1981). The plaintiff does not seek relief based upon some implied private right of action but rather upon the express citizens' suit provision of the Clean Waters Act.

The plaintiff has admitted that it did not wait to commence this suit until 60 days after it had given formal notice to the defendant, to the EPA, and to the Commonwealth. The Court of Appeals for the First Circuit has held that the 60-day notice requirement of 33 U.S.C. § 1365(b) is jurisdictional. Commonwealth of Massachusetts v. United States Veterans Administration, 541 F.2d 119, 121 (1st Cir.1976). Absent the curing of the jurisdictional defect by the filing of a supplemental complaint or "substantial compliance" with the § 1365(b) notice requirement, this suit must be dismissed. See id. at 121-122.

There has been no supplemental complaint filed. The complaint was amended on December 2, 1982, to formally allege notice to the defendant, the EPA, and the Commonwealth. That amendment,...

To continue reading

Request your trial
15 practice notes
  • In re Acushnet River & New Bedford Harbor Proceed., Civ. A. No. 83-3882-Y.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 6, 1987
    ..."constructive notice" is sufficient to satisfy the jurisdictional requirement. See Dedham Water Co. v. Cumberland Farms Dairy, Inc., 588 F.Supp. 515, 517 (D.Mass. 1983) (hereinafter "Dedham Water Later in 1985, the First Circuit decided Garcia v. Cecos International, Inc., 761 F.2d 76 (1st ......
  • Allied Towing v. Great Eastern Petroleum Corp., Civ. A. No. 85-808-N.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • August 21, 1986
    ...Cir.1981); see also Fishel v. Westinghouse Electric Corp., 617 F.Supp. 1531 (M.D.Pa.1985); Dedham Water v. Cumberland Farms Dairy, Inc., 588 F.Supp. 515 (D.Mass.1983); O'Leary v. Moyer's Landfill, Inc., 523 F.Supp. 642 (D.Pa.1981); cf. Conservation Society of Southern Vermont, Inc. v. Secre......
  • US v. Mottolo, Civ. No. 83-547-D
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • August 29, 1988
    ...to the amount, not the fact, of defendants' liability. O'Neil, supra, 682 F.Supp. at 729; Dedham Water Co. v. Cumberland Farms Dairy, 588 F.Supp. 515, 517-18 (D.Mass.1983). Merely because some response costs vary from the NCP does not provide defendants a complete defense to liability. See ......
  • United States v. Conservation Chemical Co., No. 82-0983-CV-W-5.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • July 2, 1985
    ...representation that defendant did receive the requisite notice. The court in Dedham Water Company v. Cumberland Farms Daily, Inc., 588 F.Supp. 515 (D.Mass.1983) found that plaintiff had constructively complied with the notice requirement of Section 112, which it stated was required for part......
  • Request a trial to view additional results
15 cases
  • In re Acushnet River & New Bedford Harbor Proceed., Civ. A. No. 83-3882-Y.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 6, 1987
    ..."constructive notice" is sufficient to satisfy the jurisdictional requirement. See Dedham Water Co. v. Cumberland Farms Dairy, Inc., 588 F.Supp. 515, 517 (D.Mass. 1983) (hereinafter "Dedham Water Later in 1985, the First Circuit decided Garcia v. Cecos International, Inc., 761 F.2d 76 (1st ......
  • Allied Towing v. Great Eastern Petroleum Corp., Civ. A. No. 85-808-N.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • August 21, 1986
    ...Cir.1981); see also Fishel v. Westinghouse Electric Corp., 617 F.Supp. 1531 (M.D.Pa.1985); Dedham Water v. Cumberland Farms Dairy, Inc., 588 F.Supp. 515 (D.Mass.1983); O'Leary v. Moyer's Landfill, Inc., 523 F.Supp. 642 (D.Pa.1981); cf. Conservation Society of Southern Vermont, Inc. v. Secre......
  • US v. Mottolo, Civ. No. 83-547-D
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • August 29, 1988
    ...to the amount, not the fact, of defendants' liability. O'Neil, supra, 682 F.Supp. at 729; Dedham Water Co. v. Cumberland Farms Dairy, 588 F.Supp. 515, 517-18 (D.Mass.1983). Merely because some response costs vary from the NCP does not provide defendants a complete defense to liability. See ......
  • United States v. Conservation Chemical Co., No. 82-0983-CV-W-5.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • July 2, 1985
    ...representation that defendant did receive the requisite notice. The court in Dedham Water Company v. Cumberland Farms Daily, Inc., 588 F.Supp. 515 (D.Mass.1983) found that plaintiff had constructively complied with the notice requirement of Section 112, which it stated was required for part......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT