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Massachusetts v. Pace

ELR Citation: 16 ELR 20036
Nos. No. 83-3883-G, 616 F. Supp. 815/23 ERC 1698/(D. Mass., 08/29/1985) Cost recovery claims

The court holds that the Massachusetts Oil and Hazardous Material Release Prevention Act (OHMRPA) allows recovery for preenactment response costs and that the state may seek recovery under a special act authorizing cleanup at this particular site, but also holds that the defendant is not liable under nuisance law, strict liability, or unjust enrichment. The court first holds that OHMRPA allows recovery for preenactment response cost incurred by the state at the Silresim site in Lowell, Massachusetts. Although there is a presumption against retroactive application, the section in question states that transporters are liable for all costs "incurred" as a result of the release of hazardous wastes. This section can be compared with another section imposing treble damages, which applies only to costs the state "incurs" after the enactment date. The statute's emergency nature supports this interpretation as does a recent decision allowing recovery of preenactment response costs under the Comprehensive Emergency Response, Compensation, and Liability Act. The court then rules that the third-party defense in the state law is not available to this defendant. Defendant, a transporter, had direct or indirect contractual relationships with the generators it seeks to hold responsible. The court rules that the third-party defense is not available even where the contractual relationship was entered into before the statute's enactment. The court defers ruling on whether or not defendant transported hazardous materials to the site and on whether there has been a release, to allow defendant to attempt to show that material issues of fact remain. It does rule, however, that the state does not have a cause of action under the Massachusetts Clean Waters Act, since a 1983 amendment repealed the relevant section and provided only that claims filed prior to the effective date of the repeal would survive. The state may seek recovery from defendant under a special act passed to authorize cleanup at the Silresim site, since the act allows the state to recovery response costs from originators of the wastes as well as from "all persons responsible for the accumulation of the threat."

The court rules defendant did not create a nuisance. The "activity" which created the nuisance here was carried on by the owners and operators of the site. Defendant's only "activity" was transporting materials to the site, and it did not contribute to the release of wastes into the soil. The court also rules that defendant cannot be held strictly liable for the owners' acts. It can be held liable only for injuries that occur as a result of its transportation of hazardous waste. The release of the wastes at the site was not a natural consequence of defendant's transportation of the wastes. Lastly, the court rejects the state's claim of unjust enrichment since it has found that the state has an adequate remedy at law.

[A provious decision in this case appears at 14 ELR 20428.]

Counsel for Plaintiff
Lee P. Breckenridge, Ass't Attorney General
Environmental Protection Division
1 Ashburton Place, Boston MA 02108
(617) 727-2265

Counsel for Defendants
Mark A. White
Kowal, Howard & White
2 Center Plaza, Boston MA 02108
(617) 720-1889

Laurie Burt
Foley, Hoag & Elliot
1 Post Office Square, Boston MA 02109
(617) 482-1390