One Wheeler Road Associates v. Foxboro Co.
| Decision Date | 07 February 1994 |
| Docket Number | Civ. A. No. 90-12873-Y. |
| Citation | 843 F. Supp. 792 |
| Parties | ONE WHEELER ROAD ASSOCIATES and The Gutierrez Company, Plaintiffs, v. The FOXBORO COMPANY, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Richard A. Johnston, James W. Prendegrast, David S. Nalven, Hale & Dorr, Boston, MA, for plaintiffs.
Louis N. Massery, Roy P. Giarrusso, Cooley, Manion, Moore & Jones, Boston, MA, for defendant.
In a society where toxic chemicals are generated daily, some landowners deposit such materials on their own property. Instead of removing the materials, they remove themselves, leaving subsequent owners to contend with the contamination. The Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601-9675 ("CERCLA"), and the Massachusetts Oil and Hazardous Material Release Prevention Act ("Mass.Gen.L. ch. 21E") address such situations. These statutes allow an individual landowner to bring an action against another responsible for the contamination in order to recover the costs of cleanup. Section 5 of chapter 21E of the Massachusetts General Laws also entitles a landowner, upon competent proof, to recover damages to the value of the property resulting from the contamination. See generally Mark W. Roberts, Recovering Damages for Contaminated Real Estate, 22 Mass.L.Weekly, supp. at 1 (Dec. 20, 1993). Here, the plaintiff One Wheeler Road Associates ("Wheeler") comes before this Court seeking cleanup costs and damage to the value of its property pursuant to CERCLA and Mass. Gen.L. ch. 21E. Wheeler also makes a claim for restitution. The Foxboro Company ("Foxboro") moved for partial summary judgment, claiming that neither CERCLA nor Mass.Gen.L. ch. 21E, § 5 allows recovery for property damage from a subsequent purchaser in the position of Wheeler, and that the Mass.Gen.L. ch. 21E claim and a portion of the CERCLA claim are barred by the statute of limitations. Foxboro also sought summary judgment on the restitution count. The Court made its ruling on these motions at the Final Pretrial Conference on December 14, 1993. This memorandum explains those rulings.
Wheeler owns commercial property located at 160 Wheeler Road, Burlington, Massachusetts. The Gutierrez Company is a general partner of Wheeler. This property was previously owned by Foxboro. Foxboro and one or more of Foxboro's predecessor corporations had owned or occupied the property from August, 1954, to December, 1978. There they manufactured electronic instruments and systems and used hazardous substances and materials including tetracholorethylene ("PCE") and tricholoroethylene ("TCE") in connection with their manufacturing operations. Foxboro released hazardous substances and materials at the site from interior sinks which discharged through a roof drainage network into an on-site leaching system.
In September, 1984, a health agent from the Burlington Board of Health collected liquid samples from the property which showed concentrations of hazardous substances and materials including PCE and TCE. The Board of Health thereafter notified Wheeler no later than April, 1985, that one of the prior occupants of the land had contaminated the property.
In December, 1984, Wheeler retained a hydrogeological consulting firm, Haley & Aldrich, to conduct an evaluation of the property's industrial waste leaching basin. The leaching basin was excavated in 1986 and a report submitted to the Massachusetts Department of Environmental Qualify Engineering ("DEQE") (now the Department of Environmental Protection "DEP") explaining the excavation of the leaching basin and reporting the condition of the site after the excavation. The DEQE reviewed the report and required that further investigation of the property be conducted to determine the extent of continued contamination. The DEQE stated that the "assessment has shown continued `releases' at the site, which may be indicative of additional alternative `sources' of contamination present or remaining." It also stated that further assessment at the site was required to evaluate the lateral and vertical extent of the soil and groundwater contamination.
Wheeler engaged in the assessment of site contaminants in the early summer of 1987. These studies concluded that the removal of the leaching basin by Haley & Aldrich did not address the remaining portions of the property such as the manholes, related drainage lines, and other site conditions. In September, 1988, Wheeler submitted a Phase III Environmental Studies report to the DEQE for approval. Approval was granted on April 14, 1989 for the remediation and removal of the remaining contamination on the property. The DEP then required Wheeler to submit a Phase IV Remedial Response Implementation Plan. After approval of that plan, Wheeler, in October, 1989, commenced removal of the manhole and drainage inverts, excavation of contaminated soils down to the bedrock surface, installation of vapor recovery points, and construction of a vapor recovery cell to remediate excavated soils. Approximately 800 cubic yards of contaminated soils, sludge, liquids, concrete, and other materials were removed from within and proximate to appurtenances associated with the roof drain network. In March 1990, according to Wheeler, removal was complete and final payments for the removal costs were made on April 24, 1990.
Summary Judgment must be granted when there is no dispute as to material fact and the moving party is entitled to judgment as matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The Court must enter summary judgment if Wheeler fails to make a sufficient showing of the essential elements of its case upon issues where it bears the burden of proof. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. This Court must, however, take all facts in the light most favorable to Wheeler and indulge in all reasonable inferences in its favor. Frazier v. Bailey, 957 F.2d 920, 922 (1st Cir. 1992); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990).
Wheeler seeks recovery of damage to the value of its property under CERCLA. CERCLA, however, does not provide a cause of action to recover damages in the value of the property. Regan v. Cherry Corp., 706 F.Supp. 145, 151 (D.R.I.1989) (); Piccolini v. Simon's Wrecking, 686 F.Supp. 1063, 1068 (M.D.Pa.1988) (). Superfund money is not available to compensate private parties for economic harm that results from discharge of hazardous substances. Exxon Corp. v. Hunt, 475 U.S. 355, 359, 106 S.Ct 1103, 1107, 89 L.Ed.2d 364 (1986). Wheeler itself, in a footnote, agrees that under CERCLA economic damages for diminution in property value are not recoverable. See Plaintiff's Amended Memorandum in Opposition to Defendant's Motion of Partial Summary Judgment at 14 n. 6. Partial summary judgment was granted, therefore, on that portion of Count I seeking damages under CERCLA for the diminution in the value of the property.
A plaintiff is required to bring an action under CERCLA within three years from the date removal of the contaminants was completed. 42 U.S.C. § 9613(g)(2).2 Foxboro seeks partial summary judgment with respect to the costs incurred prior to November 28, 1987, three years before this suit was filed. Such an interpretation would render unrecoverable the costs associated with the 1986 excavation and backfilling of the leaching basin. Wheeler counters this contention by pointing out that the removal of the contaminants was not complete until March, 1990, eight months before the filing of this suit. For the purposes of this motion, it is undisputed that although the operation began in 1986 with the removal of the leaching basin, removal of the remaining contaminated soil and sludge from the drainage appurtenances on the property was not completed until March, 1990.
Congress intended that the government be given the tools necessary for the prompt and effective resolution of problems of a national magnitude resulting from hazardous waste disposal. Kelley, 786 F.Supp. at 1277 (citing United States v. Reilly Tar & Chem. Corp., 546 F.Supp. 1100, 1112 D.Minn.1982). Congress intended that those responsible for the problems caused by the disposal of chemical poisons bear the costs and responsibilities for remedying the harmful conditions they created. Id. Therefore, CERCLA should be given a broad and liberal construction, and should not be narrowly interpreted to frustrate the government's ability to respond promptly, or to limit the liability of those responsible for cleanup costs beyond the limits expressly provided. Id.
Removal actions include such action as may be necessary to monitor, assess, or evaluate the release or threat of release of hazardous substances. 42 U.S.C. § 9601(23); South Macomb Disposal Auth. v. EPA, 681 F.Supp. 1244, 1246 (E.D.Mich.1988). The definition of "removal" is not taken in the literal sense, but includes all the processes related to removal, i.e., the evaluation, the monitoring, and the preparations necessary to effectuate a literal removal. The removal process is complete only after the very last drum of contaminated soil has been removed from the property. Kelley, 786 F.Supp. at 1278.
After the removal of the leaching basin in 1986, Wheeler monitored and assessed the site to ensure that all the contamination was removed. In assessing the site, it found that the contamination was still present and, after approval from the state agency, it removed the contamination. This was all part of the same contamination that caused the leaching basin to be removed in 1986. These...
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