Dedham Water Co. v. Cumberland Farms, Inc.

• Decision Date: 14 July 1988
• Docket Number: Civ. A. No. 82-3155-T,86-117-T and 86-969-T.
• Citation: 689 F. Supp. 1223
• Parties: DEDHAM WATER COMPANY and Dedham-Westwood Water District, Plaintiffs, v. CUMBERLAND FARMS, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

689 F. Supp. 1223

DEDHAM WATER COMPANY and Dedham-Westwood Water District, Plaintiffs, v. CUMBERLAND FARMS, INC., Defendant.

Civ. A. Nos. 82-3155-T, 86-117-T and 86-969-T.

United States District Court, D. Massachusetts.

July 14, 1988.

Thomas F. Holt, Jr., DiCara, Selig, Sawyer & Holt, David Chaffin, Boston, Mass. (John R. Cope, Bracewell & Patterson, Washington, D.C., of counsel), for plaintiffs.

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

MEMORANDUM

TAURO, District Judge.

The plaintiff Dedham Water Company ("DWC") is a Massachusetts corporation that, until December 17, 1986, held a public franchise to supply drinking water to the towns of Dedham and Westwood. The plaintiff Dedham-Westwood Water District ("the District") was created by statute in July 1985. In December 1986, the District purchased the assets of DWC and, thereafter, has provided drinking water to the residents of Dedham and Westwood. Because their interests in this litigation are the same, both plaintiffs will be referred to in this opinion as DWC.

The defendant Cumberland Farms Inc. ("Cumberland") is a Delaware corporation engaged in the business of processing and selling dairy products and other food items.¹

In May 1979, two wells in DWC's White Lodge Well Field, numbered 3 and 4, were found to be contaminated with certain volatile organic compounds ("VOCs") primarily 1,1,1-trichloroethane (1,1,1-TCA). These wells were removed from service, and steps were taken to prevent contamination of the other two wells. Later that year, DWC retained engineering consultants to design a plant that would eliminate the VOC problem and also remove iron and manganese from the groundwater supply. The plant was completed and began operating in early 1987.

The central allegation of DWC's 15-count Consolidated Complaint is that chemical discharges from Cumberland's property caused the groundwater contamination in the White Lodge Well Field.² Cumberland denies any culpability, and so the issue as to who caused the contamination of the White Lodge groundwater is joined.

I. THE LAW

The key issue in this case is causation. When a plaintiff alleges that chemicals have migrated underground from another site, the plaintiff must establish that the second site was in fact the source of the pollutants in question.

Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9607 (1982) ("CERCLA") explicitly requires proof of this causal connection. The statute imposes liability only for a release or threatened release of a hazardous substance "which causes the incurrence of response costs." 42 U.S.C. § 9607(a)(4) (emphasis supplied).

Proof of a causal link between a defendant's release and the plaintiff's response thus forms one of the "basic elements" of a plaintiff's prima facie case under CERCLA. United States v. Ottati & Goss, Inc., 630 F.Supp. 1361, 1401-02 (D.N.H.1985) (CERCLA plaintiff must show that "the release or threatened release causes the incurrence of response costs").³Accord: State of New York v. Shore Realty Corp., 759 F.2d 1032, 1043 & n. 16 (2d Cir.1985); Artesian Water Co. v. New Castle County, 659 F.Supp. 1269, 1278 (D.Del.1987); United States v. Bliss, 667 F.Supp. 1298, 1304 (E.D.Mo.1987); United States v. Tyson, 10 Chem. Waste Lit. Rep. 872, 888 (E.D.Pa. 1986) available on WESTLAW, 1986 WL 9250; United States v. South Carolina Recycling and Disposal, Inc., 653 F.Supp. 984, 992 (D.S.C.1984); United States v. Wade, 577 F.Supp. 1326, 1333 (E.D.Pa. 1983); United States v. Reilly Tar & Chemical Corp. 546 F.Supp. 1100, 1115 (D.Miss.1982).

DWC asserts that Cumberland is strictly liable under CERCLA as long as there has been a release from its site, without regard to causation. DWC's argument confuses the principle of strict liability for the effects of a release, with the antecedent question of whether the release has any effects at all. While the two questions may merge in some traditional CERCLA cases, in the instant case they remain distinct.

Most CERCLA cases have concerned the clean-up of a single hazardous waste dumpsite. See, e.g., Violet v. Picillo, 648 F.Supp. 1283 (D.R.I.1986); United States v. Ottati & Goss, Inc., supra; United States v. South Carolina Recycling and Disposal, Inc., supra; United States v. Wade, supra. In these "one-site" cases, plaintiffs had expended substantial amounts of money to clean up the sites where defendants had disposed of hazardous waste. CERCLA allowed plaintiffs to recover such response costs from the original waste generators.

In a one-site case, defendants who have dumped waste at the site are strictly liable under CERCLA for any necessary response costs. Violet v. Picillo, 648 F.Supp. 1283, 1290 (D.R.I.1986) (citing cases).⁴

Some defendants in one-site cases have argued that the plaintiff must show that a particular defendant's waste caused the release in question, or escaped during that release. But courts hold that, because "scientific technique has not advanced to a point that the identity of the generator of a specific quantity of waste can be stated with certainty," the CERCLA plaintiff in a one-site case is not required to "fingerprint" releases as belonging to a particular defendant. United States v. Wade, 577 F.Supp. at 1332. Rather, "upon a showing that the defendant's wastes were delivered to a site," the burden shifts to the defendant, which "bears the risk that its wastes will become unidentifiable." United States v. Bliss, 667 F.Supp. 1298, 1310 (E.D.Mo. 1987). This is the nature of the "strict liability" that CERCLA imposes upon generators. See Violet v. Picillo, 648 F.Supp. at 1290-92; United States v. Wade, 577 F.Supp. at 1331-34; Developments in the Law—Toxic Waste Litigation, 99 Harv.L. Rev. 1458, 1520-24 (1986).

In the context of the traditional one-site case, then, "courts seem to be satisfied that if a generator used a disposal site, there is a substantial likelihood that its wastes were part of the release." Developments in the Law—Toxic Waste Litigation, 99 Harv.L.Rev. at 1524 (footnote omitted). When plaintiff must clean up a mess in one location, and defendant's waste is admittedly part of that mess, the basic causal connection is presumed.⁵

But this is not a one-site case. Rather, this is a classic "two-site" case. DWC alleges that Cumberland released hazardous wastes from its truck maintenance facility, and that these wastes traveled underground to DWC's well field. Two-site cases raise a different causation question: whether the defendant's releases had any effect at all upon the plaintiff's site.

CERCLA's strict liability provisions do not come into play until this antecedent question has been resolved. As the court explained in Artesian Water Co. v. New Castle County, supra, a two-site case in which a water company sought to recover the costs of response to groundwater pollution in its well field:

CERCLA's strict liability scheme does not diminish the necessity of demonstrating a causal connection between a release or threatened release and the incurrence of costs by a section 107 plaintiff. Plaintiff must therefore show that it incurred costs as a result of the release or threatened release of hazardous substances from the defendant's site.

659 F.Supp. at 1282 (footnote and citations omitted). Accord: State of New York v. Shore Realty Corp., 759 F.2d 1032, 1044 n. 17 (2d Cir.1985) (even though § 9607 imposes strict liability, plaintiff must still prove causation); State of Idaho v. Bunker Hill Co., 635 F.Supp. 665, 674 (D.Idaho 1986) ("The plaintiff has argued that since there is admittedly strict liability under the statute, there is no need for causation. However, strict liability does not abrogate the necessity of showing causation, but merely displaces any necessity for showing some degree of culpability by the actor. In other words, under strict liability the mental state of the defendant is irrelevant, but the damage for which recovery is sought must still be causally linked to the act of the defendant.") (emphasis added); 2 Law of Hazardous Waste: Management, Cleanup, Liability, and Litigation § 14.01 6a (S.Cooke ed. 1988) (principle of strict liability becomes relevant only "after identifying a responsible party and a release that causes the incurrence of response costs as the two major prerequisites for a cost recovery suit"). Cf. id. at § 14.014d ("There are potential statutory and equitable problems with holding defendants associated with one site liable for an independent set of environmental harms that by coincidence occurred nearby.")

DWC's causes of action under Massachusetts statutory⁶ and common law⁷ likewise require proof of a causal nexus between defendant's conduct and plaintiffs' injury. Consequently, the court's factual findings will be dispositive on these issues as well.⁸

II. FACTUAL BACKGROUND

White Lodge Well Field is located in Westwood, Massachusetts. Cumberland has its corporate office, a dairy processing plant, and a truck depot in the neighboring town of Canton. Between the Cumberland facility and White Lodge are the Neponset river, a railroad line, a sewer line, and some undeveloped property. Also in the area is an industrial park whose several tenants include the Shield Packaging Company ("Shield").

White Lodge Well Field is one source from which DWC provides water for the towns of Dedham and Westwood. The four White Lodge wells (WL-1, WL-2, WL-3 and WL-4) are located west of the Neponset River. The southernmost well is WL-3. WL-4, WL-2, and WL-1 lie to the north in that order. All four wells are contained within the University Avenue Industrial Park. East of the wells is a railroad line running south out of Boston. Also in close proximity to these wells are Shield, the New Neponset Valley Sewer ("NNVS") and the Westwood Extension Sewer ("WES").

Of the four White Lodge wells, WL-3 was the most contaminated. It was...