United States District Court, D. Massachusetts
Talwani United States District Judge.
United States of America (“United States”) seeks
to recover costs pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980
(“CERCLA”), 42 U.S.C § 9607(a), from
Defendant Boston and Maine Corporation
(“B&M”) for the cleanup of a six-acre plot of
land and an adjacent pond at the Fort Devens Superfund site.
Compl. ¶¶ 2, 8 [#1]. Now before the court are the
United States' Motion for Partial Summary Judgment on
Boston and Maine Corporation's Statute of Limitations
Defenses [#80] and B&M's Motion for Summary
Judgment [#82]. Finding that the statute of limitations
did not begin to run until September 2015, the court ALLOWS
the United States' motion for partial summary judgment
and DENIES B&M's motion for summary judgment.
1991, the Environmental Protection Agency (“EPA”)
and the United States Army (“Army”) entered into
a Federal Facility Agreement governing the CERCLA cleanup of
hazardous materials at the 9, 000-acre Fort Devens Superfund
Site (“Fort Devens”). Def.'s Mot. Summ J. Ex.
5 at 6, 10, 12, 24 (Federal Facility Agreement) [#83-5]. The
agreement names the Army as the agency primarily responsible
for the cleanup. Id. at 29.
1993, Army contractors at Fort Devens began investigating
possible contamination in a six-acre plot of land (the
“Roundhouse Site”) where the Boston & Maine
Rail Road (the predecessor of B&M) had owned and operated
a railroad roundhouse from approximately 1900 to 1935.
Pl.'s Mot. Summ. J. Ex. 2 at 8, 11, 13 (Final SA 71
Sediment Risk Characterization, May 2008) [#81-2]; Def.'s
Mot. Summ. J. Ex. 11 at 15 (Draft Railroad Roundhouse Site
Investigation Report) [#83-11]; Ex. 14 at 10 (Railroad
Roundhouse Supplemental Site Investigation Work Plan)
[#83-14]. Because the Roundhouse Site had not
previously been targeted for investigation as an Area of
Contamination or Study Area, the soil and sediment samples
taken at or near the site were “only to assess the
presence or absence of contamination” and were used as
“a basis for deciding if more extensive sampling is
warranted.” Def.'s Mot. Summ. J. Ex. 11 at 8, 15
[#83-11]. A draft report analyzing those soil samples was
issued in September 1993 and noted the presences of several
“Chemicals of Potential Concern”- including
antimony, copper, and lead-at the Roundhouse Site.
Id. at 2, 15, 36. The draft report was inconclusive
as to the source of these chemicals, noting that “[t]he
high observed concentrations were associated with ash
deposits along the edge of Plow Shop Pond” but
“exceed[ed] those considered typical of coal ash”
and that “[a] second possibility is work or waste
disposal practices at the former roundhouse.”
Id. at 19, 21. The report noted that, “[b]ased
on available data, it should not be concluded that the
roundhouse area is or was the source of copper and lead
contamination in Plow Shop Pond sediments.”
Id. at 21.
contractors at Fort Devens also began investigating Plow Shop
Pond, which lies adjacent to the Roundhouse Site, another
pond (“Grove Pond”) and a landfill
(“Shepley's Hill Landfill”). Def.'s Mot.
Summ. J. Ex. 20 at 26 (Remedial Investigation Addendum
Report) [#83-20]. In December 1993, the Army issued a report
indicating that a study by the contractors found
“widespread elevated concentrations of several
inorganics in Plow Shop Pond sediments including arsenic,
barium chromium, copper, iron, lead, manganese, mercury,
nickel, and zinc.” Id. at 2, 26. The report
noted that Shepley's Hill Landfill and Grove Pond were
interpreted to be the “major” sources or
contributors of these contaminants. Id. This report
made no mention of any contamination of Plow Shop Pond from
the Roundhouse Site.
October 1994, a Supplemental Site Investigation Work Plan
(“October 1994 Work Plan”) was prepared for the
Roundhouse Site, proposing: (1) additional sediment sampling
“to confirm analytical data from the March 1993
sampling and to provide information on the distribution of
inorganic analytes”; (2) additional soil sampling
“to assess the presence and vertical distribution of
[volatile inorganic compounds] and inorganics in [the]
soil”; (3) the installation of monitoring wells to
“characterize groundwater quality downgradient of the
railroad roundhouse”; and (4) the collection and
analysis of groundwater samples “to assess whether the
roundhouse site is a current source of groundwater
contamination.” Def.'s Mot. Summ. J. Ex. 14 at 3,
19-21 [#83-14]. Roundhouses of that era were used to perform
maintenance and repair on locomotives, which involved the use
of substances including copper and antimony and the disposal
of ash into ash pits. Pl.'s Mot. Summ. J. Ex. 2 at 12
[#81-2]; id. at 1-3. Disagreeing with the September
1993 soil and sediment analyses, the October 1994 Work Plan
stated that “a [more] probable source” of the
elevated concentrations of antimony, copper, and lead found
in those analyses was the “maintenance activities at
the former roundhouse” rather than coal ash observed at
the sample locations. Def.'s Mot. Summ. J. Ex. 14 at 11
1994, the Army began the supplemental sampling recommended by
the October 1994 Work Plan and reported on its findings in
September 1995 in the Railroad Roundhouse Supplemental Site
Investigation (“Roundhouse Supplemental Site
Investigation”). Def.'s Mot. Summ. J. Ex. 12 at 2,
12 (Roundhouse Supplemental Site Investigation) [#83-12]. The
data gathered during the supplemental sampling confirmed
“high concentrations of antimony, copper and lead . . .
suggest[ing] that the area was used for disposal of
maintenance by-products from activities at the former
roundhouse” and that contaminants found at the
Roundhouse Site “appear to extend approximately 15 to
25 feet out into Plow Shop Pond.” Id. at 13.
The Roundhouse Supplemental Site Investigation recommended
that “remediation” of soils at an area on the
Roundhouse Site where locomotive maintenance by-products were
disposed (the “Maintenance By-Product Area”)
“may be appropriate” and that
“remediation/removal of soils in the maintenance
by-product area be further evaluated.” Id. The
report further noted that the “Plow Shop Pond sediments
immediately adjacent to the [Maintenance By-Product Area]
share[d] similar characteristics with those [in the
Maintenance By-Product Area] and [that] remediation/removal
of [those] sediments may be appropriate at the same
time.” Id. at 14.
October 31, 1995, as a result of these and other
investigations, the EPA concurred with the Army's
nomination of a number of new Areas of Concern and Study
Areas, including Plow Shop and Grove Ponds as a new Area of
Concern (AOC 72) and the Roundhouse Site as a new Study Area
(SA 71). Pl.'s Mot. Summ. J. Ex. 7 at 2 (EPA Letter
October 31, 1995) [#81-7].
1996, a draft action memorandum to address contaminants at
the Roundhouse Site was prepared. See Def.'s
Mot. Summ. J. Ex. 18 at 5, 8 (Draft Action Memorandum)
[#83-18]. The draft “document[ed] the decision to
perform a time-critical removal action” for the
Roundhouse Site and specifically recommended excavation of 2,
600 cubic yards of soil from the Maintenance By-Product Area.
Id. at 8.
November 1999, the Army issued a finalized Action Memorandum
(“1999 Action Memorandum”) which recommended
excavation and off-site disposal of only 650 cubic yards of
soil at the Maintenance By-Product Area. Def.'s Mot.
Summ. J. Ex. 27 at 2, 12 (1999 Action Memorandum) [#83-27].
The 1999 Action Memorandum specifically proposed excavating
soils that contained concentrations of Chemicals of Potential
Concern (“COPC”) that exceeded the project's
“preliminary remediation goals.” Id. at
5, 7, 12. Those goals were based on analyses of anthropogenic
background concentrations of the COPCs (i.e.,
concentrations of COPCs due to non-site specific human
activity) and were established in order to be
“protective of human health, welfare, and/or the
environment.” Id. at 12. Because no COPCs were
identified in the groundwater samples taken pursuant to the
October 1994 Work Plan, the 1999 Action Memorandum proposed
excavation of soil primarily above the water table except for
certain “hot spots” below the water table.
Id. The 1999 Action Memorandum further recommended
restoration of the excavated soils with clean fill, topsoil,
and seed in order to prevent erosion. Id. at 14.
Finally, the 1999 Action Memorandum stated that the proposed
excavation, disposal, and restoration was “expected to
provide a long-term solution for soil at the site” and
would “mitigate the potential threat to human health,
welfare, and/or the environment identified at the Maintenance
By-Product Area.” Id. at 12.
work at the Roundhouse Site recommended by the 1999 Action
Memorandum began in November 1999, the same month the Action
Memorandum was issued. Def.'s Mot. Summ. J. Ex. 21 at 21
(January 2001 Study Area 71 Final Closure) [#83-21]. After
initial excavation of the 650 cubic yards proposed by the
1999 Action Memorandum, further sampling revealed significant
amounts of metals contamination beyond the excavated area.
Id. at 23. Also after the first round of excavation,
the preliminary remediation goals set by the 1999 Action
Memorandum were determined by the Army to be too conservative
and were re-evaluated and adjusted. Id. at 20. As a
result of the discovery of additional contamination and the
adjustment of the preliminary remediation goals, two
additional rounds of excavation were undertaken, extending
the excavated area both laterally and deeper into the water
table. Id. at 23-24. Ultimately, the Army excavated
2, 400 cubic yards of soil from the Roundhouse Site including
approximately 494 tons of lead-contaminated soil.
Id. at 28, 33. After the excavated area was
backfilled and compacted, the area was covered with loam and
seed in May 2000. Id. at 29.
January 2001, the Army contractor submitted its Final Closure
Report (“2001 Final Closure Report”) to the Army,
concluding that the excavation, disposal, and restoration at
the Roundhouse Site had “resulted in a significant
reduction of the potential threat to human health and welfare
of the environment.” Id. at 2, 33. The Report
noted that, although residual contamination remained in
concentrations exceeding the preliminary remediation goals
set by the 1999 Action Memorandum, “more
reasonable” goals had been set during the course of the
work. Id. at 33. The Report recommended that further
evaluation of the site, including analysis of the residual
contamination, “would likely be needed before the site
can be closed out” but did anticipate that the further
risk evaluations would support a “No Further Action
January 2002, the Army contractor prepared a draft “No
Further Action” report (“2002 Draft
Report”) stating that the risk evaluation recommended
by the 2001 Final Closure Report for the Roundhouse Site
“indicated that further excavation was not necessary to
protect human health and the environment, and was used to
support a no further action decision.” Def.'s Mot.
Summ. J. Ex. 19 at 3, 11 [#83-19]. The 2002 Draft Report
concluded that, although soil at the Roundhouse Site, SA 71,
no longer posed a significant risk to human health and the
environment, the preliminary risk evaluation for that site
“suggested that potential risk[s] to sensitive
ecological receptors might occur in Plow Shop Pond near-shore
sediments at the railroad roundhouse” and that possible
sediment contamination in near-shore sediments in Plow Shop
Pond would be addressed under a different study area, SA 72.
Id. at 12. Because any action necessary to address
contaminated sediments in Plow Shop Pond would be considered
in SA 72, the report recommended that “[n]o further
response action is required at ¶ 71.” Id.
2003, the EPA provided comments to the 2002 Draft Report,
stating that the EPA was “unable to concur” with
the report's recommendation “until the arguments
put forth in favor of the no-action decision are expanded and
revised.” Pl.'s Mot. Summ. J. Ex. 13 at 2 (July
2013 EPA Letter) [#81-13]. Specifically, the EPA objected to
the use of the Massachusetts Contingency Plan, rather than
the National Contingency Plan (“NCP”), 40 C.F.R.
300 et seq., the EPA's regulations implementing
CERCLA, to set the adjusted preliminary remediation goals for
the Roundhouse Site and to conduct the risk assessments
there. See id. at 2. In addition, the EPA noted that
the excavations had failed to reach the preliminary remedial
goals set by the 1999 Action Memorandum, despite the fact
that the quantity of soil removed was nearly four times that
recommended by the memorandum. Id. Finally, the EPA
took issue with the Army's decision to base its risk
evaluation on upland soils only and its further decision not
to “administratively transfer” the evaluation and
possible remediation of offshore sediments to the study being
administered for SA 72. Id. at 3. Because the 2002
Draft Report's recommendation of no further action was
based on analysis of upland soils only (i.e., those
away from Plow Shop Pond) and because the contaminated soils
were known to extend into Plow Shop Pond by fifteen to
twenty-five feet, “the EPA recommend[ed] that the Army
expand upon the preliminary risk evaluation prepared as a
part of the [1995 Supplemental Site Investigation] to more
thoroughly consider potential risks to sensitive ecological
receptors in Plow Shop Pond from exposure to near-shore
sediments.” Id. The Army drafted, but did not
issue, a response to the EPA's comments to the 2002 Draft
Report. Def.'s Mot. Summ. J. Ex. 30 (Response to Comments
on No Further Action Decision Document) [#83-30]; Simeone
Dep. in Defs.' Mot. Summ. J. Ex. 13 at 23 [#81-13].
the Army prepared and the EPA commented on the 2002 Draft
Report, the EPA and Army began setting cleanup goals and
acceptable risk levels for Plow Shop Pond. First, the EPA
completed its Expanded Site Investigation of Plow Shop Pond
in May 2006. See Pl.'s Mot. Summ. J. Ex. 15
(Expanded Site Investigation Final Report) [#81-15]. Next,
the Army completed a risk analysis of sediment in Plow Shop
Pond in May 2008. See Pl.'s Mot. Summ. J. Ex. 2
[#81-2]. The Army's analysis confirmed antimony, copper,
lead, and zinc contaminants in Plow Shop Pond near-shore
sediments and concluded that the contamination was
“interpreted to have been contributed at least in part
by former railroad roundhouse activities.” Id.
at 8. The report noted, however, that some of the chemicals
identified in Plow Shop Pond substrate near the SA 71
shoreline likely originated from sources other than the
roundhouse. Id. at 9.
2009, the Army created a work plan for conducting a Remedial
Investigation of Plow Shop Pond and completed the Remedial
Investigation itself in March 2011. Pl.'s Mot. Summ. J.
Ex. 16 at 12 (Remedial Investigation Report for AOC 72, Plow
Shop Pond) [#81-16]. The Remedial Investigation
“present[ed] the nature, extent, and associated risks
to human health and the environment from contamination at
Plow Shop Pond” and concluded that “potential
adverse effects on human health from arsenic and other
contaminants in AOC 72 [Plow Shop Pond] are within
USEPA's acceptable risk levels for quantitative
risks.” Id. at 12. The Remedial Investigation
further noted that “Study Area (SA) 71 (i.e.,
the former railroad roundhouse area) at the south end of AOC
72 does not appear to be a significant source of contaminants
that drive human or ecological risks, though it does appear
to have elevated levels of lead, zinc, and polycyclic
aromatic hydrocarbons in sediment.” Id. at 13.
thereafter, in April 2011, the Army began preparing an
Engineering Evaluation/Cost Analysis to evaluate alternatives
for addressing two areas of contamination in Plow Shop
Pond-one area adjacent to the Roundhouse Site and one area
(known as Red Cove) adjacent to Shepley's Hill Landfill.
Pl.'s Mot. Summ. J. Ex. 17 at 2, 7 (April 2011 AOC 72
Engineering Evaluation/Cost Analysis Approval Memorandum)
[#81-17]. The Army issued a Draft Final Engineering
Evaluation/Cost Analysis in December 2011, see
Pl.'s Mot. Summ. J. Ex. 19 at 2 (January 2012 EPA Letter)
[#81-19], followed by a June 2012 Action Memorandum
(“2012 Action Memorandum”) adopting the
recommendations of the Engineering Evaluation/Cost Analysis,
see Pl.'s Mot. Summ. J. Ex. 20 at 9 (2012 Action
Memorandum) [#81-20]. The 2012 Action Memorandum determined
that “Non-Time-Critical” removal action was
appropriate “to remove, control or contain the risk
from the potential exposure to the release of hazardous
substances from sediment in Red Cove or the shoreline along
[the Roundhouse Site].” Pl.'s Mot. Summ. J. Ex. 20
at 15 [#81-20]; see also id. at 8. The work proposed
by the 2012 Action Memorandum for the portion of Plow Shop
Pond adjacent to the Roundhouse Site included the excavation
and disposal of all visible “maintenance by-product
deposits” that extended as an apron of material into
the pond by about ten to forty feet. Id. at 20. The
2012 Action Memorandum further stated that, “[i]f the
proposed removal action . . . is delayed or not implemented,
arsenic and maintenance byproduct-impacted sediment may
continue to pose a risk to human health and/or the
environment.” Id. at 21.
proposed by the 2012 Action Memorandum, including the removal
of sediment adjacent to the Roundhouse Site, occurred in
2013. Pl.'s Mot. Summ. J. Ex. 21 at 9 (Removal Action
Complete Report) [#81-21]; Def.'s Mot. Summ. J. Ex. 28 at
8 (Pl.'s Objs. and Answers to Def.'s First Set
January 2013, while work recommended by the 2012 Action
Memorandum was ongoing, the Army filed the complaint in this
action. See Compl. [#1].
December 2014, after analyses for Plow Shop Pond were
completed, the Army issued an updated Risk Characterization
of the Roundhouse Site. See Pl.'s Mot. Summ. J.
Ex. 14 (Study Area 71 Risk Characterization) [#81-14]. The
Risk Characterization determined that land use controls that,
at a minimum, restricted the use of the property against
residential development and occupancy would be appropriate
for the Roundhouse Site and that use of the Maintenance
By-Product Area as an “open/recreational space”
would not result in significant risk to visitors.
Id. at 5-6.
thereafter, in January 2015, the Army issued a proposed plan
(“Proposed Plan”) for public comment recommending
final cleanup decisions for the Roundhouse Site and Plow Shop
Pond. See Pl.'s Mot. Summ. J. Ex. 22 (Proposed
Plan) [#81-22]. The Proposed Plan recommended no further
excavation for either the Roundhouse Site or Plow Shop Pond,
and deed restrictions running with the land to prevent
residential use and to require safe soil handling during
construction work at the Roundhouse Site. Id. at
7-10. In September 2015, the Army issued a single Record of
Decision for both sites. See Filing R. Decision Ex.
1 [#95-1]. The Record of Decision selected no further action
as the preferred remedy for Plow Shop Pond and the
implementation of land use controls as the preferred remedy
for the Roundhouse Site. Id. at 30.
United States alleges that the response activities taken at
the Roundhouse Site and in the portion of the Plow Shop Pond
immediately adjacent to the Roundhouse Site are
“removal actions, ” and it seeks to recover the
costs it incurred in connection with those activities. Compl.
¶¶ 2, 17 [#1]. B&M contends that the action is
time-barred. Answer ¶ 31 [#25]. Both parties move for
summary judgment as to this affirmative defense.
movant is entitled to summary judgment if “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). Here, the material facts are not in dispute, but the
parties disagree on the proper construction of several
sections of CERCLA.
passed CERCLA in 1980 “to promote timely cleanup of
hazardous waste sites and to ensure that the costs of such
cleanup efforts were borne by those responsible for the
contamination.” Burlington N. & Santa Fe Ry.
Co. v. United States, 556 U.S. 599, 602 (2009) (internal
quotation marks and citations omitted). CERCLA authorizes the
President to respond to a release or substantial threat of
release of a hazardous substance by “act[ing],
consistent with the national contingency plan, to remove or
arrange for the removal of, and provide for remedial action
relating to[, ] such hazardous substance . . . deem[ed]
necessary to protect the public health or welfare or the
environment.” 42 U.S.C. § 9604(a)(1).
defines “remove” or “removal” as
“the cleanup or removal of released hazardous
substances from the environment” including (1)
“such actions as may be necessary taken in the event of
the threat of release of hazardous substances into the
environment”; (2) “such actions as may be
necessary to monitor, assess, and evaluate the release or
threat of release of hazardous substances”; (3)
“the disposal of removed material”; or (4)
“the taking of such other actions as may be necessary
to prevent, minimize, or mitigate damage to the public health
or welfare or to the ...