Massachusetts Environmental Developments

Westport’s Novel Claims for PCB Remediation Costs End at First Circuit

The Town of Westport cannot recover clean-up costs from manufacturers of PCBs used in caulk at the town’s middle school under a variety of common law and statutory theories, according to a ruling by the First Circuit in Town of Westport v. Monsanto Company, Case No. 17-1461 (December 8, 2017). The decision ends a pair of novel cases brought by Massachusetts towns looking to the PCB manufacturers to pay for remediation at school sites.

Westport sued Monsanto, Solutia, and Pharmacia in 2014 seeking to recover the estimated $26 million cost of remediating PCB contamination at the Westport Middle School under common law and statutory theories. Monsanto, Solutia, and Pharmacia are corporately related to the Monsanto entity that manufactured PCBs for years under the name brand name Aroclor. Because of their useful properties, PCBs were incorporated into various products including caulk before their adverse impacts on health and the environment caused them to be banned. Westport alleged that PCBs used in caulk at the school when it was constructed in 1969 caused the town to incur remediation costs at the school property 40 years later when Westport renovated the building’s windows and roof.

As reported earlier, the District Court dismissed claims of public nuisance, private nuisance, trespass, and claims under Massachusetts Chapter 21E, the state analogue of CERCLA, leaving claims of breach of implied warranty of merchantability for defective design and failure to warn and negligence. The lower court then dismissed those remaining claims on a motion for summary judgment; Westport appealed the dismissal of the implied warranty/failure to warn and negligence claims.

The First Circuit initially tackled the correct standard for foreseeability in order to support a claim for breach of implied warranty of merchantability. Westport argued that because it was bringing a claim for property damage, the question was whether it was foreseeable that there was a risk PCBs would volatilize out of caulk. It disputed the more difficult standard of whether it was foreseeable that such volatilization would reach levels harmful to human health. Because PCB remediation is only required when the contamination poses a risk to human health, the Court affirmed the lower court’s ruling applying the human health standard in this case of alleged property damage.

Having established the foreseeability standard, the Court determined that Westport had not proffered any scientific studies supporting a risk that PCBs volatilize from caulk at harmful concentrations when inhaled and certainly no evidence that such a risk was known to the defendants in 1969 when the building was constructed. Efforts by Westport to extrapolate from studies of paints and resins left the Court unconvinced. “The risk that PCB-containing caulk would cause adverse health effects could not have been ‘reasonably foreseeable’ in 1969 given that the existence of such a risk remains unverified by scientific studies today. … In fact, the evidence unequivocally supports the conclusion that the risk PCBs would volatilize from caulk at harmful levels was not reasonably foreseeable in 1969.”

The Court also concurred with the lower court’s determination that Westport could not prove one element of the related breach of warranty claim that the defendants had violated their post-sale duty to warn. Westport was required to show that the PCB manufacturers could have effectively communicated a warning to the end-users of PCB products – such as the school that utilized the PCB-containing caulk. The Court found the town could not. “Given Monsanto’s complex supply chain, tracing the caulk used at [the school] back to [caulk manufacturer] (based on documents containing [the school’s] contractor) is not the same as being able to identify [the school] as the end user in the first place.”

Finally, the Court dispensed with Westport’s negligent marketing claim, noting that no court applying Massachusetts law “has ever explicitly held that a negligent marketing claim can be maintained independently of a design defect claim.” The possible only exception is where a manufacturer has intentionally targeted children, which was not alleged in this case.

A similar case brought by the Town of Lexington was dismissed in 2016 without an appeal. Town of Lexington v. Pharmacia Corp., et al., (D. Mass. Docket No. 12-11645-DJC).

Academic Institutions: When Renovating, Where Do Your PCBs Go? EPA Region 1 Enforces Against University for Improper PCB Disposal

The University of Connecticut will pay $28,125 as part of a settlement with U.S. EPA resolving allegations that UConn improperly disposed of PCB-contaminated soils during a renovation project in 2013. Academic institutions with buildings built or renovated in the 1950s, 60s, and 70s need to be particularly careful to use knowledgeable contractors and consultants as many building materials from that time period contain PCBs, the disposal of which is carefully regulated. EPA claimed that UConn transported and disposed of soil contaminated with PCBs from window caulk to a facility not licensed to take the material under an incorrect manifest.

According to EPA guidance, PCBs are commonly found in building materials currently in use in institutions such as schools built or renovated between 1950 and 1979. Building materials that may contain PCBs include caulking around windows, building joints, masonry columns, and door frames. PCBs may also be found in adhesives, ceiling tiles, acoustic boards, and paints, as well as certain lighting fixtures. PCBs in these materials may contaminate adjacent materials, as well as nearby soil.

Any renovation project involving PCB-contaminated building materials must be conducted consistent with the Toxic Substances Control Act, as well as employee safety rules. This includes ensuring that the work is done by trained workers using safe work practices such as using appropriate personal protective equipment and minimizing dust, as well as ensuring that PCB-contaminated waste is properly managed through proper disposal.

According to EPA, UConn failed to classify soil contaminated with PCBs from window caulk as PCB remediation waste. As a result, UConn transported the waste under a manifest that did not identify the material as PCB remediation waste and sent the waste to a facility not licensed to accept PCB remediation waste.

According to UConn spokesperson, Stephanie Reitz, the university issued the following statement: “In order to assure compliance with environmental regulations, UConn hired an outside environmental consultant who was monitoring activity on site. We are disappointed that the error occurred, but since UConn is the property owner, it is ultimately responsible. By agreeing to the order, UConn accepted responsibility and paid a small fine. We are pleased that EPA recognizes UConn's efforts to prevent a recurrence in the future.”

Any academic institution planning renovation work should evaluate whether the buildings contain hazardous building materials such as PCBs, asbestos, and mercury before beginning work, and hire knowledgeable and reputable consultants and contractors to ensure that these materials are handled properly.

Central Massachusetts Sand and Gravel Company Hit with $120,000 Civil Penalty for Air Violations

Kimball Sand Company, Inc. agreed to pay a civil penalty of $120,000 and implement corrective actions as part of a Consent Agreement and Final Order resolving allegations that Kimball operated stone crushing and processing equipment and engines/generators in violation of the federal Clean Air Act. As part of the settlement, Kimball agreed to other corrective actions as well as the penalty. This enforcement action is a reminder to all businesses, whether large or small, of their initial and continuing obligation to determine if their equipment and operations trigger federal CAA requirements, or in the alternative face potentially significant civil penalties.

Kimball, founded in 1979, operates two stone crushing and processing facilities in Northborough and Blackstone, Massachusetts. Kimball began operating its Blackstone facility around 1985, and its Northborough facility around 1995. Operations include various stone crushers, screeners, and belt conveyors, as well as non-emergency, stationary diesel engines/generators.

After conducting inspections at Kimball’s facilities, U.S. EPA determined that certain stone crushing and processing equipment was subject to the federal CAA’s New Source Performance Standards for Nonmetallic Mineral Processing Plants found at 40 CFR Part 60, Subpart OOO (Nonmetallic Mineral Processing NSPS). The NSPS applies to certain affected facilities in a fixed or portable nonmetallic mineral processing plant, including crushers, grinding mills, screening operations, bucket elevators, belt conveyors, bagging operations, storage bins, and enclosed truck or railcar loading stations. EPA alleged that Kimball’s various crushers, screeners and conveyors were affected facilities subject to the NSPS’s Method 9 visible emission testing requirements and that Kimball did not conduct this testing to determine fugitive emissions from subject equipment until several years after the initial startup of its Northborough plant, nor did Kimball provide timely notification of the actual date of initial startup for its stone crushing and gravel processing equipment at either facility.

EPA also determined that Kimball’s non-emergency, stationary diesel engines/generators were subject to the CAA’s National Emission Standards for Hazardous Air Pollutants for Stationary Reciprocating Internal Combustion Engines found at 40 CFR Part 63, Subpart ZZZZ (RICE NESHAP). EPA claimed that Kimball did not submit the required initial notifications for the engines, did not conduct initial performance testing or other compliance demonstrations, and did not meet the required CO emissions limits. Subsequent to EPA’s inspections, Kimball replaced the three existing engines with newer, cleaner engines.

Massachusetts Land Use Developments

Supreme Judicial Court Sets Limitation on Chapter 40B’s Broad Grant of Authority to Local Zoning Boards

In a rare limitation on the broad scope of Massachusetts’ affordable housing law, the state’s top court ruled that amendments by a local board to municipally owned deed restrictions are not covered by the law.

In the case of 135 Wells Avenue, LLC v. Housing Appeals Committee et al, the Massachusetts Supreme Judicial Court considered in November whether the statute governing affordable housing, Mass. General Laws chapter 40B, § 21 (known as Chapter 40B), which allows local zoning boards to issue “permits or approvals” and dispense with local "requirements or regulations" encompasses the local board’s amendments of municipally owned deed restrictions. 478 Mass. 346 (Nov. 13, 2017). The developer, Cabot, Cabot & Forbes, was blocked from developing a 334-unit affordable housing apartment complex because the City of Newton’s aldermen decided against amending a municipally owned negative easement that prohibited residential development on that parcel. Cabot then attempted to seek the needed amendment from Newton’s Zoning Board of Appeals (ZBA). Abiding by precedent, the Court held that Chapter 40B does not grant the ZBA authority to amend a municipally owned deed restriction, which is a property right; the power to do so rests solely with the City’s aldermen.

The Newton parcel in question is subject to a 99-year deed restriction originally recorded by the City in 1968. The deed restriction contains limits for building size, location, and use. It requires that any buildings on the parcel be for “certain, but not all, of the uses permitted in a limited manufacturing district.” Since 1971, the aldermen had granted 20 amendments to the parcel’s deed restriction, allowing development for purposes outside of the enumerated limited manufacturing district uses.

In 2014, the plaintiffs purchased a 6.3-acre sub-parcel that is subject to the deed restriction in order to build the 334-unit apartment complex. In order to bypass the deed restriction requirements, Cabot asked the City aldermen for an amendment, which was denied. The plaintiffs also asked the ZBA to “waive” the deed restriction purportedly under its Chapter 40B authority to issue “permits and approvals” otherwise normally granted by local agencies. The ZBA found that waiving or modifying the deed restriction was outside of its authority. On appeal, the Housing Appeals Committee (HAC) agreed. The developer again appealed but was this time rebuffed by the Massachusetts Land Court, which held that neither the ZBA nor HAC had authority to require the city to amend the deed restriction under Chapter 40B. The Supreme Judicial Court affirmed.

To streamline the permitting process so that citizens can readily benefit from affordable housing created under Chapter 40B, the statute empowers local zoning boards to issue “permits or approvals” that the Court has defined, functionally, as “authorizations given out by local permitting agencies, and the types of permissions that these agencies typically grant” whether related or unrelated to zoning. In 135 Wells Avenue, the Court rejected Cabot’s proposed expansion of this functional definition of “permits or approvals” to include the amendment of municipally owned deed restrictions relying on the “fundamental distinction between the disposition of a property right and the allowance of a permit or approval….” The Court found no difference between this case and an earlier decision where it had held that HAC could not require a local board to order a town to grant an access easement over town land pursuant to the board's power to grant “permits or approvals.”

Nor were prior amendments to the restrictive covenant the functional equivalent of “permits or approvals” because the aldermanic process followed in allowing these amendments mimicked the ZBA’s permit-granting procedures: an application to the aldermen, a review procedure, and the issuance of an authorization to use land in a certain manner. The Court held that “the aldermen were not sitting as a local permitting authority when allowing the amendments pursuant to G. L. c. 40, § 3, [governing the power to hold, lease and convey property] and the amendments, which affected a real property interest held by the [C]ity, were not the same types of permissions as regulations concerning "`building construction and design, siting, zoning, health, safety, [or] environment.’" Finally, the Court applied its ruling to both positive and negative easements since, as to this issue of possible amendment by a local board, there was no valid differentiation between the two types of easements.

Massachusetts Land Court Applies New Article 97 Guidance and Denies Constitutional Protection to Land Purchased for Water Resource Protection and Compatible Purposes

We recently reported on a new analytical framework created by the Massachusetts Supreme Judicial Court in the case of Smith v. City of Westfield for conducting analyses to determine whether Article 97 state constitutional protections will apply to restrict the development of land held for conservation and natural resource protection purposes. In the first judicial decision to apply this Article 97 guidance, the Massachusetts Land Court has held that a property conveyed to a town “for the purposes of protection of water resources and other compatible purposes including conservation a recreation” was not protected land under Article 97 and therefore could be leased to install a solar facility. Mirkovic v. Guercio, 2017 WL 4681972 (Mass. Land Court, Oct. 18, 2017).

In 1988, a Special Town Meeting in the Town of Shirley, Massachusetts voted to authorize the acquisition of land “which parcel shall be used by the Town for protection of water resources and other compatable (sic) purposes, including conservation and recreation.” In 1990, the Town of Shirley acquired the parcel (the Property) under a deed that provided the land was being conveyed to the Town “for purposes of protection of water resources and other compatible purposes including conservation and recreation as approved and authorized by the voters of the Town of Shirley… .”

In 2015, the Town’s Planning Board granted site plan approval and a special permit to SolarCity for the construction and operation of a solar energy generating facility on a section of the Property. SolarCity thereafter entered into an agreement with the Town to lease the project site on the Property, and the Drinking Water Program of the Massachusetts Department of Environmental Protection issued an approval for the project. A group of residents of the Town appealed the Planning Board’s site plan approval to the Zoning Board of Appeals (ZBA), which denied the residents’ petition to reverse the Planning Board’s decision. The plaintiffs then appealed to the Land Court, arguing that the Town had acquired the property for purposes protected under Article 97 and that the ZBA had exceeded its authority by authorizing the disposition of the public’s rights in the Property without a vote of two-thirds of both branches of the Massachusetts Legislature, which is required if property is subject to Article 97 protections.

Article 97 protects the public’s rights to “the conservation, development, and utilization of the agricultural, mineral, forest, water, air, and other natural resources” of the state. The plaintiffs argued that the deed language describing the use of the Property “for purposes of protection of water resources and other compatible purposes including conservation and recreation” demonstrated that the Property was acquired by the Town for Article 97 purposes. The defendants countered that the phrase “other compatible purposes” did not restrict the Town’s use of the property to Article 97 purposes.

The Land Court determined that, while protection of water resources was “unquestionably” an Article 97 protected purpose, the allowance in the deed for “other compatible purposes” was not within the scope of Article 97 and that the Town’s Property was therefore not subject to Article 97 protection. Citing Supreme Judicial Court precedent, the Land Court reasoned that the phrase “other compatible purposes” needed to be read within the context of the Town’s Water Protection District zoning bylaw, which allowed, among other things, commercial, industrial, and institutional uses, and even the handling and storage of toxic or hazardous materials, in the Water Protection District. As the bylaw allowed a broad array of uses that were compatible with the water protection purposes for which the Property was acquired, and those uses did not meet the purposes of Article 97, the Court found that the deed language was insufficient to invoke Article 97 protections.

The Smith v. Westfield decision reshaped the landscape for determining when Article 97 protections will apply. This decision of the Land Court shows that the courts will look to external factors in conducting this evaluation, and where extrinsic evidence indicates that property was acquired with an intent to allow for a broad suite of uses beyond those protected by Article 97, they will be reluctant to attach constitutional use restrictions.

Beveridge & Diamond's Municipal and State Governments industry group helps municipalities navigate the various federal and state regulations that govern their operations. We help guide municipalities through complex project development and permitting processes, interactions with the federal government, and environmental and natural resource litigation. For more information, please contact the authors.