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Town of Acton v. W.R. Grace & Co.-Conn., Technologies, Inc.

United States District Court, D. Massachusetts

September 22, 2014

TOWN OF ACTON ET AL., Plaintiffs,
v.
W.R. GRACE & CO.—CONN., TECHNOLOGIES, INC., Defendant, and UNITED STATES OF AMERICA, Intervenor Defendant.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, District Judge.

I. BACKGROUND

This action relates to ongoing hazardous substance response and remediation action taking place at the W.R. Grace Superfund site (the "Site"), which is located partially within the boundaries of the town of Acton, Massachusetts. The Town of Acton seeks through a Town Bylaw (the "Bylaw") to supplement the remediation program administered under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") by the United States Environmental Protection Agency ("EPA"). Defendant W.R. Grace & Co, and the United States as an intervenor on behalf of the EPA, oppose this initiative on federal preemption grounds.

In 2005, pursuant to EPA oversight, Grace installed a water pump and treatment system designed to remove hazardous chemicals from groundwater. EPA has now granted Grace permission to cease operation of that treatment system, which Grace has done.

Acton objects to the cessation of the treatment system, which it contends violates an Acton Bylaw. Accordingly, Acton sought an injunctive relief ordering Grace to continue operation of the treatment system. I have denied the Town's motion for a preliminary injunction. Grace and the United States have both filed motions to dismiss, which I will grant for the reasons that follow.

A. Factual Background

1. The Grace Site

In 1954, Grace (or its predecessor in interest) began industrial operations at the Site. Those operations involved the use of numerous volatile organic compounds and other hazardous substances, including 1, 1-dichloroethene ("VDC"), vinyl chloride, benezene, and 1, 4-dioxane, which were disposed into unlined lagoons, an on-site industrial landfill, and other disposal areas. Although Grace's operations ceased some time ago, these contaminants continue to pollute groundwater under the Site and flow down-gradient toward public drinking water wells to the North and South of the Site. Under Massachusetts Department of Environmental Protection regulations, these down-gradient wells are categorized as Current and Potential Drinking Water Supply Areas. Compl. ¶¶ 45-60.[1]

2. Federal and State Enforcement Activity

After the discovery of contamination, there ensued a long history of federal and state enforcement activity at the Site. Prior to the enactment of CERCLA, the United States filed a civil action against Grace on April 17, 1980 seeking cleanup and remediation of the contaminated site pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., and the Commonwealth of Massachusetts initiated a parallel state enforcement action.

In October 1980, EPA and Grace entered into a consent decree "outlin[ing] a phased program to plan and undertake cleanup of the various waste disposal sites, and also requir[ing] restoration of groundwater in drinking water aquifers that were contaminated by the facility." ROD at 9. In April 1980, the Massachusetts Department of Environmental Protection and Grace had entered into an agreed consent order, which was amended in 1981 to conform to the federal consent decree.

In 1983, the EPA added the Site to the National Priorities List of Superfund sites pursuant to Section 105 of CERCLA. Based upon this listing, EPA took the position that the cleanup at the Grace Site in Acton not only had to meet the requirements of the 1980 Consent Decree, but also the requirements of the NCP under CERCLA.

In March of 1985, pursuant to the federal consent decree and the state agreed consent order, Grace began operating an aquifer restoration system (the "ARS") to remove and treat contaminated groundwater under the waste disposal areas on the Site. Compl. ¶¶ 91-100. The aquifer restoration system was designed (a) to mitigate the migration of contaminated groundwater to the Assabet Wells, the Assabet River, and Fort Pond Brook, (b) accelerate the removal of contaminants from groundwater in the targeted source areas and return the aquifer to a fully usable condition as required by the Consent Decree; and (c) limit the continued migration of contaminants from the southern portion of the Site, to the Northeast Area by actively treating the source of contaminants in this area of the Site.

In September 1989, EPA issued a Record of Decision (the "First ROD") for the site pursuant to CERCLA. That ROD divided planned site activities into three "Operable Units." The first ("OU1") addressed disposal areas and superficial contamination at the Site. The second ("OU2") addressed residual contamination in disposal areas at the Site following implementation of OU1. The third ("OU3") addressed contaminated groundwater and establishment of groundwater target cleanup goals. Compl. ¶¶ 101-105. In 1994, Grace began work under OU1, which included excavation and removal of contaminated soils at the Site. After the completion of OU1, and based upon post-OU1 sampling results, no action was taken under OU2.

3. The Operating Unit 3 Record of Decision and Groundwater Remediation

In 1998, EPA, Grace, and the Massachusetts DEP negotiated a statement of work for a Remedial Investigation/Feasability Study ("RI/FS") for work to be performed under OU3. Grace commenced work under OU3 to determine the extent of on- and off-site contamination and to identify remedial measures necessary to restore the groundwater to usable condition in the shortest practical time.

On September 30, 2005, EPA issued a Record of Decision selecting the remediation plan for OU3 (the "OU3 ROD"). The OU3 ROD addresses contaminated groundwater in the area of the Site that is not contained or is not being adequately addressed by the ARS and establishes target cleanup levels.

The actions to be undertaken pursuant to the OU3 ROD included: (a) clean-up of contaminated sediments; (b) extraction and treatment of groundwater in the landfill area of the Site; (c) institutional controls to prevent unacceptable exposures to contaminated groundwater and covered waste; (d) long-term monitoring of the Site; (e) monitored natural attenuation of contaminants at the Site; and (f) the action which is at issue in this lawsuit-a pump and treatment system (the "Treatment System") for the Northeast area of the Site.

This Treatment System was not included in EPA's initial OU3 proposal, which relied primarily on monitored natural attenuation of groundwater contaminants, but was added based upon an "overwhelming number of comments by the State and the community stressing the need to pull the plume of contamination back from Acton's wells in the Northeast Area." ROD at 66.

With regard to the operation of the Treatment System, the OU3 ROD provided that:

Given the relatively low estimated volume of contamination that remains in the aquifer, EPA assumes that this aggressive targeted pumping would continue for approximately three years. At the end of this three-year time frame... an evaluation will be conducted to determine if pumping can be discontinued. This evaluation will include the following factors: 1.) Input from the Acton Water District regarding yield and drawdown; 2.) Contaminant concentrations at each of the three School Street Wells and whether they are meeting, and are expected to continue to meet, MCLs [Maximum Contaminant Levels]; and 3.) The effectiveness of the extraction and treatment system.

ROD at 69-70.

On September 29, 2005, the Massachusetts DEP issued a Letter of Concurrence with the OU3 ROD. In September 2006, EPA issued a Remedial Design/Remedial Action Statement of Work under OU3 at the Site, describing procedures and submittals required for the Treatment System and the Northeast Area Remedial Action. The Treatment System began operation in April 2010, pumping groundwater from an extraction well, treating the water at a treatment facility, and re-injecting the treated water into deposits. Since it began operation, the Treatment System has removed over fourteen pounds of volatile organic compounds- though with the amount removed decreasing each year from 2010 through 2012. Compl. ¶¶ 140-143. Based upon the extent of the plume of contaminants from the Grace Site, the Treatment System could continue to remove significant amounts of contaminants from affected resource areas down-gradient from the Grace Site.

4. Grace's Proposal To Discontinue the Treatment System

As discussed above, the OU3 ROD included a provision allowing Grace, after three years of pumping and treatment, to perform "an evaluation to determine if pumping can be discontinued." Compl. ¶ 153. Pursuant to this provision, on April 1, 2013, Grace proposed shutting down the Treatment System. The Town of Acton objected to the proposed shutdown, which required concurrence from DEP and EPA, noting that discontinuing operation of the Treatment System would violate the Acton Bylaw.

In a letter dated September 20, 2013, EPA, in consultation with the DEP and despite the objections of Acton, provided for "conditional approval" of Grace's plan to shutdown the Treatment System. That letter observed ["concentrations of [VDC] in the School Street Town Wells are currently below the [MCL] of 7 ppb, and have been since the Northeast Area remedial system became operational." Compl. Ex. E

The letter from EPA included five conditions that Grace was required to satisfy if it ceased operation of the treatment system. Only two of these conditions, however, were required to be performed prior to the Treatment System shutdown: that Grace perform the 2013 groundwater sampling and elevation measurements; and that Grace confirm that it would perform three additional rounds of quarterly sampling for the Scribner Well (in addition to the four previous rounds of sampling). Compl. Ex. E.

5. The Acton Bylaw

On April 10, 1997, the Town of Acton adopted a Bylaw to "protect, preserve, improve and maintain the [Town's] existing and potential drinking water sources and to assure public health and safety through the application of stringent environmental ground water quality cleanup standards." Acton Bylaw § 2.

Section 5 of the Acton Bylaw provides that:

Any Cleanup performed in the Town of Acton by a person potentially liable under Section 5(a) of General Laws Chapter 21E or, in, at, of or affecting any Resource Area(s) shall on a permanent basis meet or surpass in cleanness the Ground Water Cleanup Standards established by this ByLaw through the Resource Area for each and every contaminant for which the Cleanup is or has been undertaken.

Id. at § 5. Section 7 of the Acton Bylaw provides that "it shall constitute a breach of this Bylaw to discontinue for more than thirty (30) days or to abandon a Cleanup of a Resource Area without meeting the Groundwater Cleanup Standards of this Bylaw." Id. at § 7.

Section 4.9 defines a "Cleanup" as "any response action, removal action, or remedial action undertaken pursuant to federal or state environmental law, rule, regulation, order or decree involving the clean up or removal of any contaminant from the environment, including, without limitation, from land, waters and/or groundwater." Id. at § 4.9. Section 4.10 provides that "Ground Water Clean Up Standards' means the groundwater quality standards adopted by the Town of Acton pursuant to this Bylaw and are as follows: (1) Maximum Contaminant Level Goals (MCLGs') established under the Safe Drinking Water Act for each Contaminant for which an MCLG has been established, see 40 C.F.R. §§ 141.50-141.52 and (2) where an MCLG for a specific Contaminant is zero, ...


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