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United States v. Cropscience

United States District Court, D. Massachusetts

July 29, 2015

UNITED STATES OF AMERICA and COMMONWEALTH OF MASSACHUSETTS, Plaintiffs,
v.
BAYER CROPSCIENCE and PHARMACIA CORPORATION, Defendants.

MEMORANDUM & ORDER

NATHANIEL M. GORTON, District Judge.

This dispute arises out of a consent decree between consolidated plaintiffs United States of America ("the federal government" and the Commonwealth of Massachusetts ("the Commonwealth"), on the one hand, and defendants Bayer CropScience, Inc. and Pharmacia Corporation, on the other, with respect to compensation for alleged damage to natural resources at a Superfund site in Massachusetts.

Pending before the Court is defendants' motion for further relief with respect to certain provisions in the consent decree. For the reasons that follow, the motion will be denied without prejudice.

I. Background and Procedural History

A. Industri-plex Superfund Site

Due to the release or threatened release of hazardous substances, the Industri-plex Superfund Site in Woburn, Massachusetts ("the Site") was placed on the National Priorities List in September, 1983 pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. ยงยง 9601, et seq. ("CERCLA").

Defendants subsequently engaged with the federal government, acting on behalf of the United States Environmental Protection Agency ("EPA"), in a phased process of designing and implementing remedial action to clean up contamination at the Site. The first phase focused on contaminated soils at the Site's Operable Unit 1 ("OU1"). In April, 1989, another Session of this Court approved a consent decree addressing a response action for OU1.

B. OU2 Decree

The second phase of the remediation process, which is currently ongoing, is directed at contaminated groundwater, surface water and sediments at the Site's Operable Unit 2 ("OU2"). The scope of the remedial actions for OU2 is detailed in a January, 2006 Record of Decision issued by the EPA and the defendants' deliverable obligations are summarized in the November, 2007 Statement of Work ("SOW"). The SOW indicates that the northern portion of the Halls Brook Holding Area Pond ("the pond"), or possibly the entire pond, will be used as a sediment retention area. It also requires

[c]onstruction of compensatory wetlands for any loss of wetland functions and values associated with the selected remedy (e.g. northern portion of [the pond]...) nearby in the watershed.

In November, 2008, a second Session of this Court (not the OU1 court) approved a consent decree between the federal government, on behalf of the EPA, and the defendants regarding the design, implementation and reimbursement of costs for remedial action at OU2 ("the OU2 Decree"). The OU2 Decree incorporates the SOW, the Record of Decision and other documents detailing the remediation plan at OU2. Disputes with respect to the scope and nature of the remediation obligations must be resolved pursuant to the specific dispute resolution procedures indicated in the OU2 Decree.

C. The Consent Decree

Separately and independently of the OU1 and OU2 remediation processes, the United States Department of Interior and the National Oceanic and Atmospheric Administration (collectively "the trustees") initiated discussions with defendants in 2007 regarding natural resource damages at the Site.

In May, 2012, the federal government, acting on behalf of the trustees, commenced the present lawsuit against defendants alleging liability for natural resource damages pursuant to Section 107(a) of CERCLA. The Commonwealth filed a separate complaint against defendants on the same day seeking damages for injury to, destruction of or loss of natural resources under 1) CERCLA and 2) the Massachusetts Oil and Hazardous Material Release ...


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