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United States v. Boston and Maine Corp.

United States District Court, D. Massachusetts

September 22, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
BOSTON AND MAINE CORPORATION, Defendant,
v.
TOWN OF AYER, MASSACHUSETTS, Third-Party Defendant.

          ORDER

          Indira Talwani United States District Judge.

         Plaintiff 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.

         I. Factual Background

         In 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.

         In 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].[1] 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.

         Army 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].[2] 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.

         In 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 [#83-14].

         In late 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.

         On 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].

         In 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.

         In 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.

         The 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.

         In 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 Decision.” Id.

         In 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.

         In July 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].

         After 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.

         In 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.

         Shortly 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.

         Work 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 Interrogs.) [#83-28].

         In January 2013, while work recommended by the 2012 Action Memorandum was ongoing, the Army filed the complaint in this action. See Compl. [#1].

         In 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.

         Shortly 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.

         II. Discussion

         The 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.

         A 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.

         1. Statutory Overview

         Congress 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).

         CERCLA 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 ...


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