Dedham Water Co. v. Cumberland Farms Dairy, Inc.

No. 88-2200 (889 F.2d 1157, 30 ERC 1649) (1st Cir. December 11, 1989)

The court denies a motion for rehearing of its original opinion. The court holds that an objective standard applies under Comprehensive Environmental Response, Compensation, and Liability Act § 107 in determining whether a release or threatened release has caused the incurrence of response costs.

[The original opinion appears at 20 ELR 20334. The district court opinion appears at 19 ELR 20487. Related opinions appear at 14 ELR 20838, 16 ELR 20787, and 17 ELR 20223.]

Counsel for Plaintiffs-Appellants
Thomas F. Holt Jr.
DiCara, Selig, Sawyer & Holt
Three Center Plaza, Boston MA 02106
(617) 523-1800

Counsel for Defendants-Appellees
Allan Van Gestel
Goodwin, Procter & Hoar
Exchange Pl., Boston MA 02109
(617) 570-1000

Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.

[20 ELR 20340]

BOWNES, Circuit Judge.

MEMORANDUM AND ORDER

Contrary to the defendant, Cumberland Farms' assertion, the panel did not overlook the undisputed evidence. This was an action brought under CERCLA, which provides that if there has been a "release or threatened release" from defendant's facility, 42 U.S.C. §§ 9607(a)(4), 9601(14) & (22), which caused a plaintiff to incur "response costs," id. § 9607(a)(4), the plaintiff may recover those costs provided they are necessary and "consistent with the national contingency plan," id. §§ 9607(a)(4)(B), 9601(23)-(25). The district court in this case held that the defendant's "releases" did not, in fact, contaminate the plaintiff's wells. Dedham Water Co. v. Cumberland Farms, Inc., 689 F. Supp. 1223, 1235 (D.Mass.1988). But, the district court did not consider the additional question of whether defendant's releases (or threatened releases) might nonetheless have caused the plaintiff to incur "response costs" even though those releases did not in fact contaminate the wells. (A plaintiff, for example, under certain circumstances might reasonably think that a particular release would prove likely to contaminate his wells and reasonably spend money to avoid the contamination even though no actual contamination occurs.) Because the case was brought under CERCLA, we remanded the case so that the district court could make findings relevant to this CERCLA claim.

The defendant now petitions for rehearing. It says that the "undisputed evidence" reveals that, under the circumstances here present, it could not have happened that its "releases" (or "threatened releases") (a) did not in fact contaminate the wells, but (b) nonetheless caused the plaintiff to incur response costs. Having read the record, however, we did not find the evidence so perfectly clear on this point that we were prepared to make the relevant factual findings ourselves; rather, we remanded the case so that the district court could hear argument and then do so.

The defendant goes on to say that the parties stipulated that the plaintiff incurred response costs because of "actual" contamination of its well field. The stipulation to which defendant refers says:

The plaintiffs have incurred costs in order to "respond" to, and "in response" to, the contamination of the White Lodge Well Field as those terms are defined in CERCLA § 101(24), 42 U.S.C. § 9601(25).

We are not persuaded at this stage of the proceedings, however, that we can interpret this stipulation definitively as disposing of the issue, particularly when the district court, in its opinion, nowhere suggested that a stipulation lay behind its failure to make findings on other than the "actual contamination" question. We therefore think it appropriate to leave the meaning of the stipulation to the district court on remand.

We also note that liability in respect to costs caused by releases (or threatened releases) that do not in fact contaminate wells exists only where the statutory requirements are met; and the relevant standards are objective. See 42 U.S.C. § 9607(a). Obviously, a New Jersey well owner who began to make local-area contamination studies because of releases occurring in California could not claim, objectively speaking, that the California releases "cause[d]" the costs, see id. § 9607(a)(4), or that his expenditures were "necessary" and "consistent with the national contingency plan," id. § 9607(a)(4)(B). Equally obvious, there can be circumstances where a defendant causes "costs" but does not cause actual contamination. Indeed, how else could a "threatened release" ever cause a "response cost?"

As we have said, on remand the district court should decide this as-yet-undecided CERCLA issue. In doing so, it is free toconsider, and to take appropriate account of, the stipulation to which defendant refers.

The petition for rehearing is denied.