Dedham Water Co. v. Cumberland Farms Dairy, Inc., Civ. A. No. 82-3155-S.
Decision Date | 29 July 1991 |
Docket Number | Civ. A. No. 82-3155-S. |
Citation | 770 F. Supp. 41 |
Parties | DEDHAM WATER CO. and Dedham-Westwood Water District, Plaintiffs, v. CUMBERLAND FARMS DAIRY, INC., Defendant. |
Court | U.S. District Court — District of Massachusetts |
Thomas F. Holt, Jr., with whom Nancy B. Reiner, DiCara, Selig, Sawyer & Holt, Boston, Mass., John R. Cope and Bracewell & Patterson, Washington, D.C., were on brief, for plaintiffs.
Allan van Gestel with whom Henry C. Dinger, Christopher P. Davis, A. Lauren Carpenter and Goodwin, Procter & Hoar, Boston, Mass., were on brief, for defendant.
FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT
This is an action by the plaintiffs to recover the costs of building and operating a water treatment plant to remove pollutants from the White Lodge Well Field, its primary source of water. Dedham Water's claim is based on the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq, and the parallel Massachusetts Oil and Hazardous Material Release Prevention and Response Act, M.G.L. c. 21E, §§ 4 and 5. The case was originally tried without a jury before Judge Tauro, who found as a fact that the pollution of the plaintiffs' well field was not caused by the release of contaminants from the defendant's facility. Judgment for the defendant was entered. 689 F.Supp. 1223 (D.Mass.1988). This finding was not challenged on appeal, but the case was nevertheless reversed and remanded for a determination of whether the treatment plant was built in response to a threat of release of contaminants from the defendant's facility to the plaintiffs' well field. 889 F.2d 1146 (1st Cir.1989). The case was redrawn to me pursuant to LR 40.1(i).
Notwithstanding the finding that the actual pollution of the plaintiffs' well field by volatile organic chemicals ("VOCs") was not caused by releases from the defendant's facility, the plaintiffs also assert that they responded to the threat of such releases. The defendant contends that the plaintiffs had decided to follow a particular course of action, the construction of a water purification plant, in response to the discovery of actual pollution of the well field long before they had any reason to believe there was a threat of future contamination emanating from the defendant's land. The chronology of events is accordingly very important.
From as early as 1974, the plaintiffs had been aware of heavy metal contamination in the well field, principally iron and manganese, which discolored the water. The plaintiffs' officials had been contemplating a treatment plant to eliminate this material by filtration. In 1979 VOCs were discovered in the well field around wells 3 and 4. In 1980, the engineering firm of Metcalf & Eddy recommended to the plaintiffs that a two-stage treatment plant be constructed providing for filtration to remove the iron and manganese and air stripping to remove the VOCs. In 1981, the plaintiffs discovered that similar VOCs had been released on the defendant's property. The plaintiffs then hired the firm of Gerahty & Miller (G. & M.), well-known hydrogeologists, to conduct a study. It would appear from defendant's exhibit 172, a memo from American Water Works Service Co., Inc.1, that the purpose of the G. & M. survey was to identify the entity or entities responsible for the release of the VOCs for the...
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