Town of Sturbridge v. Mobil Corp., CIV.A. 01-40019-NMG.
| Decision Date | 29 March 2002 |
| Docket Number | No. CIV.A. 01-40019-NMG.,CIV.A. 01-40019-NMG. |
| Citation | 195 F.Supp.2d 330 |
| Parties | TOWN OF STURBRIDGE, Plaintiff, v. MOBIL CORPORATION, Atlantic Richfield Company and Shell Oil Products Company, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Jonathan M. Silverstein, Mark R. Reich, Kopelman & Paige, Boston, MA, for plaintiff.
Deborah E. Barnard, Ralph T. Lepore, III, Bradley L. Croft, Holland & Knight LLP, Stephen J. Brake, David L. Ferrera, Nutter, McClennen & Fish, LLP, Boston, MA, Michael P. Murphy, Regnante, Sterio & Osborne, Wakefield, MA, for defendants.
This case arises from the contamination of the water of Well No. 1 ("the Well") in the Town of Sturbridge, Massachusetts ("the Town"), by the contaminant, Methyl Tertiary Butyl Ether ("MTBE"). It has been determined that the contaminant leaked into the soil from two nearby gasoline filling stations.
One of the stations is located at 365 Main Street in Sturbridge ("the Mobil site") and is owned and operated by Defendant Mobil Corporation ("Mobil"). The other station is located at 400 Main Street in Sturbridge ("the ARCO/Shell site"). Defendant Atlantic Richfield Company ("ARCO") held a leasehold interest on the property at 400 Main Street from the early 1970's until 1985 and subleased the property to a number of tenants who, one after the other, operated the gasoline station. In 1985, ARCO conveyed its leasehold interest to Defendant Shell Oil Products Company ("Shell").
Defendant Shell reported that, in November, 1984, three underground storage tanks at the ARCO/Shell site failed tightness tests and were leaking contaminants. ARCO began response actions to curtail the threat of release of hazardous materials into the environment. In 1989, Shell assumed responsibility for those response actions. The ARCO/Shell site is "upgradient of" (drains toward) and within 700 feet of the Well.
Defendant Mobil reported that, prior to July, 1990, oil and hazardous materials were found in the groundwater and soil at the Mobil site. In January, 1991, the Mobil site was designated as a "priority disposal site" by the Massachusetts Department of Environmental Protection ("DEP"). The Mobil Site is upgradient of and within 1,100 feet of the Well.
In 1985, the DEP assigned the Well an "emergency status" requiring Sturbridge to cease using the Well because of the release and threat of release of oil and hazardous materials from the underground storage tanks at the Mobil and ARCO/ Shell sites. Because of the emergency status, the Well was taken "off line" and the Town was allowed to use it only in case of fire or if the other two Town wells became unusable.
On January 8, 1991, the Town sent a letter to ARCO stating:
As you know, Sturbridge Town Well # 1 has been out of service since 1987 due to the threat of contamination from the former ARCO station (now Shell) on Route 20. Due to increasing water demands in the Town and the exclusive use of the remaining 2 wells for the past 3 + years, we are now faced with a potentially dangerous situation should a fire create a large demand and/or should one of the remaining wells go out of service for any reason. The Town, therefore, requests that action be taken immediately to restore Well # 1 to service or develop a new well.
It is our understanding that Shell Oil Company has assumed some responsibility in this matter and is currently funding further study at the site. Part of this study is pumping Well # 1 to determine whether or not any contaminants will be drawn into the Well, however, the test cannot be completed until the Well is cleaned (inactivity has caused clogging) to increase capacity from the current 30 GPM +/- to the rated capacity of 410 GPM +/-. Shell has indicated to us that they are not responsible for the cleaning of the well, therefore, we are looking to ARCO to assume responsibility for the work (estimated to cost approximately $10,000) and to make provisions for the development of a new well should it prove to be necessary.
We trust that the documentation provided adequately demonstrates that the well has clogged due to the inactivity caused by the forced shutdown to avoid contamination of the municipal water supply. Pursuant to this, we ask that ARCO proceed with the cleaning of the well and, if found to be necessary, the planning for the development of a new well. If this work does not commence within 30 days, the town will be forced to take legal action.
The contaminant MBTE was, and continues to be, detected in the water in the Well. Historically, MBTE levels in the Well ranged from 10 to 12 parts per billion ("ppb") of MBTE. On May 10, 1993, it was discovered that the Well contained 79.7 ppb of MBTE. That unusually high level of MBTE did not, however, render the Well unusable or unsafe. At a meeting held on June 8, 1993, the DEP and the Town noted that the demand for water in the Town had increased dramatically. They outlined possible options for meeting the Town's short-term and long-term water needs, including investigating possible leaks, installing a new well, increasing production from Well # 3, rehabilitating Well # 2, conducting wellhead treatment and installing an air sparging curtain between the Mobil Station and the Well.1
On July 10, 1996, the DEP issued a Water Management Permit to the Town authorizing the withdrawal of water from all of the Town's wells, including the Well, effective July 10, 1996 and expiring on August 31, 2013. On that same day, the DEP noted that until the Well was operational, the Town would likely continue to suffer water shortages.
On December 17, 1997, Attorney Peter Feuerbach from the law firm of Kopelman & Paige sent a demand letter to Mobil, Shell and ARCO notifying them that:
the Town has suffered property damage, both real and personal, in the form of diminution in value of its land due to the release and threat of release of oil and hazardous materials at and from the Shell/ARCO site and the Mobil site and the subsequent loss of use and damage to Well. No. 1.
In October, 1998, the Town discovered that rehabilitation of the Well would not be feasible and that it would have to obtain a new water supply and develop a new well to meet its increasing water demand.
The Town's water supply consultant has recommended a treatment system that will cost $100,000 for the first year of operation plus $50,000 for each subsequent year. The consultant has also recommended investigating the possible development of a new water system at an estimated cost of $150,000.
On December 12, 2000, the Town brought suit against Mobil, Shell and ARCO in Worcester Superior Court alleging property damage pursuant to M.G.L. c. 40 § 39G and the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, M.G.L. c. 21E § 5, nuisance and negligence. It sought reimbursement for costs incurred as a result of the contamination under M.G.L. c. 21E §§ 4 and 11A, damages, injunctive relief, fees and costs. The case was removed to this Court on February 9, 2001 based on diversity jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1441(a) and (b).
Defendant Shell brought cross-claims against ARCO for contribution and contractual indemnity and against Mobil for contribution. Defendant Mobil asserted cross-claims against Shell for contribution under M.G.L. c. 231B and 21E § 4. Finally, ARCO brought cross-claims against Shell for breach of contract, declaratory judgment pursuant to M.G.L. c. 231A and two counts for contribution pursuant to M.G.L. c. 231B and 21E § 4, respectively.
Pending before this Court are motions of ARCO and Shell for partial summary judgment and motions of the Town for deferral of summary judgment pending discovery. Defendants Shell and ARCO seek summary judgment on all counts except Count I (which seeks reimbursement under M.G.L. c. 21E §§ 4 and 11A), on the ground that the claims are time-barred.
I. Analysis
Defendants Shell and ARCO argue that Counts II through V are time-barred because they were brought after the expiration of the three-year limitations period provided for in M.G.L. c. 21E § 11(A)(4) and M.G.L. c. 260 § 2A. Defendant ARCO claims that the cause of action accrued, at the latest, in January, 1991 when the Town sent ARCO the letter complaining about its inability to use the Well due to the threat of contamination. Defendant Shell claims that the cause of action accrued in November, 1990 when the Town sent Shell a letter stating that the Well was taken out of service due to the threat of contamination. At the very latest, Shell contends, the action accrued in June, 1993 when the DEP sent the Town a letter in which the DEP stated that the level of MBTE in the Well had increased to 79.7 ppb.
The Town claims that the action did not accrue until the Town discovered, in October, 1998, that the rehabilitation of the Well was not feasible and that it would have to obtain a new source of water. The Town further contends that its actions prior to 1998 were "response actions" taken to aid in the assessment and containment of contamination at the two sites of leakage.
Chapter 21E contains the following statute of limitations for claims of property damage under Section 5:
Actions by persons other than the Commonwealth to recover for damage to real or personal property shall be commenced within three years after the date that the person seeking recovery first suffers the damage or within three years after the date that the person seeking recovery of such damage discovers or reasonably should have discovered that the person against whom the action is being brought is a person liable pursuant to this chapter for the release or threat of release that caused the damage, whichever is later.
M.G.L. c. 21E § 11A (4).
The statute of limitations applicable to Chapter 21E claims is consistent with the "discovery rule" applied in negligence cases. It provides that a cause of action accrues when ...
To continue reading
Request your trial
-
Lewis v. General Elec. Co.
...Plating, 991 F.2d at 29, (citing Riley v. Presnell, 409 Mass. 239, 565 N.E.2d 780, 787 (1991); see also Town of Sturbridge v. Mobil Corp., 195 F.Supp.2d 330, 335 (D.Mass.2002). In the case before the court, it is undisputed that the contamination was not discovered until after the property ......
-
Mystic Landing, LLC v. Pharmacia Corp.
...for property damage under Chapter 21E as "identical to the measure of recovery at common law"). See also Town of Sturbridge v. Mobil Corp., 195 F.Supp.2d 330, 333 (D.Mass.2002) (stating that accrual of a cause of action under 21E is "consistent with the `discovery rule' applied in negligenc......
-
City of Hous. v. Avx Corp.
..."discovered or reasonably should have discovered the damage and the cause of the damage." See Town of Sturbridge v. Mobil Corp., 195 F. Supp. 2d 330, 333 (D. Mass. 2002) (Gorton, J.). The Plaintiffs do not seriously dispute that they had knowledge that Lot 99 was contaminated with PCBs at t......