The plaintiff brought an action under G. L. c. 21E (1992 ed.), the Massachusetts Oil and Hazardous Material Release Prevention Act, to recover expenses it incurred remedying gasoline contamination on its property. It alleged that the defendant, along with five other companies, was responsible for causing the contamination and, therefore, was liable for reimbursement of the response costs, pursuant
There was evidence from which the jury could have found the following relevant facts. The plaintiff purchased the subject property, a gasoline service station located at 225 Main Street in Rockport, in 1978. In early 1988, gasoline vapors were detected coming from the sewer on Main Street near the service station. On March 1, 1988, a claim was filed by the Department of Environmental Protection (department) requiring the plaintiff to investigate the fumes and, if necessary, to take remedial action. In February, 1989, the department issued a notice of responsibility to the plaintiff ordering it to take response action to remedy the situation. Subsequent investigation confirmed that releases of gasoline had occurred at the site. Since that discovery, remedial activities, including an emergency short-term measure, a hydrogeological study, and a long-term remediation involving the recovery and treatment of groundwater, have been performed.
There has been a history of gasoline spills and leaks at the site dating back to 1969. In September, 1969, an underground storage tank ruptured causing a release of approximately 300 gallons of gasoline. Again, in 1975, there was a release of gasoline from one or more of the underground storage tanks on the premises. In 1981, gasoline fumes were detected on the adjoining property, and a storage tank on the property adjacent to the site was found to be leaking. After this discovery, the plaintiff’s tanks were eventually tested. The testing revealed that the tanks were leaking and water had seeped into the tanks. In November, 1987, a new gasoline dispensing system was installed on the site. Gasoline was released into the ground from the new system continuously at a rate of at least several gallons each time the tank was
At the close of the evidence the judge submitted the case to the jury on the form of a special verdict. Mass. R. Civ. P. 49 (a),
The plaintiff argues that the judge’s instruction placed an unreasonable burden on the plaintiff to pinpoint which particular response costs were attributable to the defendant’s re
General Laws c. 21E, § 4 (1992 ed.), provides in part: “Any person who undertakes a necessary and appropriate response action regarding the release or threat of release of oil or hazardous material shall be entitled to reimbursement from any other person liable for such release or threat of release for the reasonable costs of such response action.” The statute further defines the persons who are liable for releases. Section 5 (a) (5) (iii) states: “[A]ny person who otherwise caused or is legally responsible for a release or threat of release of oil or hazardous material from a vessel or site, shall be liable, without regard to fault . . . (iii) to any person for damage to his real or personal property incurred or suffered as a result of such release . . .” (emphasis supplied). We have held that a defendant can be held liable under § 5 (a) (5) if it is found to have “caused” a release of oil at the site. Griffith v. New England Tel. & Tel. Co.,
After being properly instructed by the judge, the jury found that the defendant’s release did not cause the plaintiff to incur any response costs and therefore, it follows that the defendant was not liable under G. L. c. 2IE, § 4. Because there was no error in the jury instructions, there is no reason to question the validity of the jury’s verdict.
Judgment affirmed.
Notes
The plaintiff also named as defendants the other five companies which it claimed were responsible for contaminating its property. Three of the defendants settled prior to trial. Default judgments were entered against the other two defendants. None of those parties is involved in this appeal.
The plaintiff argues that we should follow the Federal courts in their interpretation of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 et seq. (1988) and adopt a “diminished causation” standard in multi-release cases. It is not necessary for us to go beyond the language of G. L. c. 21E (1992 ed.) to determine whether the jury were adequately instructed. It should be noted that CERCLA has no provision equivalent to G. L. c. 21E, § 5 (a) (5).
General Laws c. 21E, § 5 (b), provides: “Any person otherwise liable for any costs or damages . . . who establishes by a preponderance of the evidence that only a portion of such costs or damages is attributable to a release or threat of release of such oil or hazardous material . . . shall be required to pay only for such portion.”
