Grand Manor Condominium Association v. City of Lowell

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SJC-12294

GRAND MANOR CONDOMINIUM ASSOCIATION & others 1 vs.
CITY OF LOWELL.

Middlesex. October 5, 2017. - January 19, 2018.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.

Hazardous Materials. Massachusetts Oil and Hazardous Material
Release Prevention Act. Real Property, Environmental
damage. Limitations, Statute of. Practice, Civil, Statute
of limitations. Damages, Hazardous waste contamination.

Civil action commenced in the Superior Court Department on
October 10, 2012.

The case was tried before Kathe M. Tuttman, J.

1
Keith Parker; Paul Donoghue; Anthony Delgreco; Wilmer
Gallo Solorzano; Susanna Ritson; Carol Sagro; Judith Copithorne;
Frances Inglis; Susan Elimhingbe; Kathleen Harrison; Derek
Soderquist; Eiddie Katende; Walter Patterson, Jr.; Michael R.
Sherman; Michael Gibbs; Sakhoeurn Van; Ellsworth J. Evans, Jr.;
Paul Weissbach; Amir Tabrizi; Keith L. Bennett, Jr.; Prabhaker
Jani; Jyoti Jani; William R. Zink; Linda A. Zink; Daniel R.
Smith, Sr.; Ashwin Thakkar; Giselia Resendes; Michelle Maher;
Maureen Guerin-Porter; Theodore Leoutsakos; Susan Leoutsakos;
Lawrence Kelleher; Deborah Carkin; George Barry; Nancy Barry;
Brian Andriolo; Helen Bullock; Edward Bullock; Julia Paquin;
Tracy Paquette; and Dolores Lemieux.
 2

The Supreme Judicial Court granted an application for
direct appellate review.

Alan B. Rubenstein (Stacie A. Kosinski also present) for
the plaintiff.
C. Michael Carlson, Assistant City Solicitor (Rachel M.
Brown, Assistant City Solicitor, also present) for city of
Lowell.

KAFKER, J. The owners of condominium units at Grand Manor

and the Grand Manor Condominium Association (collectively,

plaintiffs) filed suit against the city of Lowell (city) on

October 10, 2012, for the release of hazardous materials at the

Grand Manor condominium site. The plaintiffs brought claims for

response costs under G. L. c. 21E, § 4A, and for damage to the

plaintiffs' property under G. L. c. 21E, § 5 (a) (iii). 2 A jury

found that the plaintiffs' claim under § 5 (a) (iii) was barred

by the applicable statute of limitations, G. L. c. 21E,

§ 11A (4). The plaintiffs appealed, and we granted their

application for direct appellate review. On appeal, the

plaintiffs argue that (1) the statute of limitations did not

begin to run until the plaintiffs knew that the property damage

was permanent; and (2) the trial judge erred in instructing the

jury that the plaintiffs had the burden of persuasion to show

that they filed suit within the statute of limitations. The

2
The plaintiffs brought a third claim under G. L. c. 93A,
but the trial court granted summary judgment for the city on
this claim and the plaintiffs do not appeal from that ruling.
 3

city contends that the plaintiffs needed to know only that there

was environmental damage and that the defendant was the source

of the damage, not that the damage was permanent, for the

limitations period to begin to run. The city also contends that

the jury were properly instructed.

We conclude that a plaintiff must be on notice that he or

she has a claim under § 5 (a) (iii) before that claim may be

time barred, and that such notice is separate from a plaintiff's

notice that environmental contamination has occurred. A

plaintiff has notice of a claim under § 5 (a) (iii) once the

plaintiff learns whether or not remediation and response costs

will fully compensate the plaintiff for the harm he or she has

suffered, as well as the identity of the party who caused such

harm. This will not ordinarily occur until the plaintiff learns

that the damage to his or her property is not reasonably curable

by the remediation process. As we conclude as a matter of law

that the plaintiffs could not know that they had a claim under

§ 5 before June 6, 2012, when the city filed its Phase II/Phase

III report pursuant to the Massachusetts Contingency Plan, the

statute of limitations issues should not have been presented to

the jury. We therefore vacate the judgment below and remand

this case for further proceedings consistent with this opinion.

1. Background. a. Overview of G. L. c. 21E. The

Massachusetts Oil and Hazardous Material Release Prevention Act,
 4

G. L. c. 21E, was enacted both "to compel the prompt and

efficient cleanup of hazardous material and to ensure that costs

and damages are borne by the appropriate responsible

parties." Taygeta Corp. v. Varian Assocs., Inc., 436 Mass. 217,

223 (2002). The Department of Environmental Protection

(department) has promulgated a set of regulations known

collectively as the Massachusetts Contingency Plan (MCP) that

detail specific requirements for complying with the G. L. c. 21E

remediation process. See id., citing G. L. c. 21E, § 3, and 310

Code Mass. Regs. §§ 40.0000 (1999).

As we explained in Taygeta Corp., 436 Mass. at 224, once

the department is notified of a release of hazardous materials,

"a property owner or other responsible person is subject to a

five-phase assessment and remediation process set forth in the

MCP." That assessment and remediation process defines how much

cleanup of the property will be required and who will be

responsible for the cleanup. "Phase I consists of preliminary

response actions and risk reduction measures, including a

limited investigation and evaluation of the contaminated site

and a remediation of sudden releases, imminent hazards, and

other time-critical conditions. . . . Preliminary response

actions may be sufficient for complete evaluation or remediation

of localized or uncomplicated releases and threats of release at

some sites. . . . Where that is not the case, the property
 5

owner or other responsible person must proceed with the

subsequent phases of the assessment and remediation process

described in the MCP." (Citations omitted.) Id.

Phase II includes "a characterization of the sources,

nature, and vertical and horizontal extent of contamination at

the disposal site, and the identification and characterization

of all potential human and environmental receptors that could be

affected by hazardous material at or migrating from such

site." Id. at 224-225. Phase III requires the "identification

and selection of comprehensive remedial action

alternatives." Id. at 225 n.12. Phase IV implements the

selected remedial action alternative. Id. If needed, the

property owner or other responsible person will proceed to Phase

V for the continued "operation, maintenance, or monitoring of

the disposal site." Id. See 310 Code Mass. Regs. § 40.0890

(2014).

A site does not need to be remediated to its pre-

contamination state in order to complete the remediation process

specified in the MCP. Rather, there are a number of means by

which a party can finish the remediation process. See 310 Code

Mass. Regs. § 40.1000 (2014). For example, a party may be able,

or even required, to implement an Activity and Use Limitation

(AUL) to reduce contaminants to levels that pose no significant

risk to public health. See 310 Code Mass. Regs. § 40.1012
 6

(2014). An AUL limits the permissible range of future

activities and acceptable uses for the site, in order to prevent

a member of the public from being exposed to contamination that

remains onsite that could not feasibly be remediated. See id.

Thus, a site with an AUL is remediated to the point of no

significant risk to public health, but may still contain

hazardous materials. As is the case when a site utilizes an

AUL, the remediation process under G. L. c. 21E and the MCP do

not necessarily cure all property damage that resulted from the

contamination.

b. Facts. In 1906, the city acquired the land upon which

the Grand Manor condominium was later built. In the early part

of the Twentieth Century, the city operated the site as a quarry

for mining rock and gravel. During the 1940s and 1950s, the

city used the site as a landfill. Solid waste, such as tires,

leather waste products, batteries, bottles, and containers of

liquid were deposited in areas that had been excavated during

the site's prior use as a quarry. The landfill was eventually

covered and sat unused until 1983, when the city conveyed the

property to a real estate developer. The developer constructed

the Grand Manor condominium on the property, and recorded the

master deed for it in 1985. 3

3
The developer who conveyed the land is now deceased.
 7

In November, 2008, the Grand Manor Condominium Association

(association) hired a contractor to excavate part of the site to

install a drainage system. During the excavation, the

contractor discovered discolored soil, as well as debris

including glass, bottles, metal, vehicle parts, and ash. Two

soil samples were collected from separate stockpiles of

excavated soil and submitted for testing. In a letter dated

December 31, 2008, the contractor was informed that one of the

two soil samples indicated that a release of hazardous materials

had occurred. The letter stated that the owner of the site was

required to notify the department of the release and hire a

licensed site professional to comply with its duties under G. L.

c. 21E. 4 See 310 Code Mass. Regs. §§ 40.0169, 40.0315. The

association learned of the soil test results in early 2009. The

site's prior use as a landfill was the source of the hazardous

materials. 5

4
A licensed site professional is an individual licensed by
the State to provide opinions on safely cleaning hazardous waste
sites. See G. L. c. 21A, § 19; 310 Code Mass. Regs. § 40.0006
(2014).
5
The city of Lowell (city) did not concede that the
landfill was the cause of the release prior to trial. However,
in a joint pretrial memorandum containing an agreed statement of
facts, the parties stated that the "source of the hazardous
materials discovered at the Grand Manor site and released into
the environment is the former use of the site as a solid waste
landfill."
 8

In January, 2009, the association hired Joseph Jammallo as

its licensed site professional. In March, 2009, Jammallo

attempted a limited removal action to remediate the

contamination, which would allow the association to avoid the

much lengthier five-phase cleanup process mandated by the MCP. 6

310 Code Mass. Regs. § 40.0318 (2014). Jammallo issued a report

on April 24, 2009, informing the association that the limited

removal action had failed. The association notified its

residents and unit owners of the contamination in a letter dated

the same day. Both the report and the letter indicated that

members of the association had learned through personal research

that the site was once operated as a landfill by the city. The

report stated that the contamination "may likely be associated

with the wastes that were deposited on the [s]ite over the years

of the [c]ity's ownership [and operation of the dump]," but

recommended further investigation to assess the "nature and

approximate extent of the release." The letter similarly stated

that "[t]he extent and nature of materials disposed of is not

yet known."

6
A limited removal action consists of removing up to twenty
cubic yards of contaminated soil from the site. 310 Code Mass.
Regs. § 40.0318(4)(b) (2014). Afterward, if the remaining
concentrations of hazardous material in the soil are below the
contamination levels that require notifying the Department of
Environmental Protection (department), the limited removal
action has been successful. 310 Code Mass. Regs. § 40.0318(9)
(2014).
 9

Four days later, the association notified the department of

the release of hazardous materials, and requested that the

department issue a notice of responsibility to the city. 7 In May

2009, the department sent a notice to both the city and the

association informing them that they were potentially

responsible parties under G. L. c. 21E, § 5, and ordering them

to undertake all response actions necessary to achieve a level

of no significant risk to public safety, in compliance with the

MCP.

On July 16, 2009, the city hired its own licensed site

professional, Christopher McDermott, and Jammallo's work for the

association ceased. 8 On October 13, 2009, the association sent a

letter to the city demanding reimbursement for costs the

association incurred responding to the contamination, pursuant

to G. L. c. 21E, § 4. In April, 2010, McDermott filed a Phase I

Initial Site Investigation report with the department. The

Phase I report stated that the release of hazardous materials

"is likely related to the former use of the [s]ite as a solid

waste landfill." The report indicated that interpreting aerial

7
The department sends notices of responsibility to parties
that may be liable for the release of hazardous materials under
G. L. c. 21E, § 5. See 310 Code Mass. Regs. § 40.0160(1)
(2014).
8
Christopher McDermott was the city's licensed site
professional until January, 2012.
 10

photographs from 1957 "suggest[ed]" where the outer boundaries

of the contamination were located.

On July 7, 2010, the city sent Grand Manor residents and

unit owners a letter assuring them that it was working to

"develop and implement a more permanent solution to protect"

their health and safety. However, the city noted that

"significant additional testing and monitoring in multiple

seasons (to determine if seasonal factors impact contamination

levels, as is often the case) is required by the [department] to

establish and implement a definitive long term remediation

strategy."

In June, 2011, a subcontractor completed a geophysical

report on the extent of the site contamination for the city.

The report calculated that there were over 1.5 million cubic

feet of hazardous material at the site, and that the hazardous

material extended down to the bedrock. The findings from this

report were included in the city's Phase II Comprehensive Site

Assessment, which was filed in June, 2012, along with the city's

Phase III Remedial Action Plan. The Phase II report stated that

the source of the hazardous material was "fill containing soil

and solid waste from the landfill disposal operations in the

[city's former landfill] in the 1940s and 1950s." The Phase III

report indicated that returning the site to its original

condition would cost approximately $11.7 million, and was not
 11

feasible. The report concluded that installing an asphalt or

concrete pavement cap over the hazardous material and

implementing an AUL would be the most practical remedy, and laid

out a tentative schedule for implementing that solution.

The plaintiffs filed suit on October 10, 2012, for response

costs, under G. L. c. 21E, § 4A, and damage to the plaintiffs'

property, under G. L. c. 21E, § 5 (a) (iii). The statute of

limitations period for the claim under § 5 is three years.

G. L. c. 21E, § 11A. Thus, the plaintiffs' claim under § 5

would only be timely if the limitations period began to run on

or after October 10, 2009.

The plaintiffs moved for summary judgment, arguing in

relevant part that a claim under § 5 (a) (iii) requires

permanent damage, and that the statute of limitations did not

begin to run until they learned the damage was permanent. The

trial court rejected the latter argument. Instead, the court

ruled that the city was a liable party as defined in G. L.

c. 21E, § 5 (a) (iii), but that there was a "genuine issue of

material fact as to which date commenced the running of the

three-year limitations period" for the claim under

§ 5 (a) (iii). The court listed several potential dates that

could have triggered the limitations period: (1) March, 2009,

the date Jammallo conducted the limited removal action; (2)

April 24, 2009, the date Jammallo issued a report indicating the
 12

limited removal action had failed; (3) May 21, 2009, the date

the department notified the city it was a potentially

responsible party; or (4) October 13, 2009, the date the

plaintiffs sent a letter to the city demanding reimbursement for

response costs under § 4A.

At trial, the jury were instructed that the plaintiffs

"must first persuade you by a fair preponderance of the evidence

that their claim did not arise until on or after October 10,

2009." The jury awarded the plaintiffs response costs pursuant

to G. L. c. 21E, § 4, but found that the plaintiffs had failed

to prove that their claim under § 5 (a) (iii) was brought within

the statute of limitations. 9

2. Discussion. The statute of limitations for claims

under § 5 (a) (iii) provides as follows:

"Actions by persons other than the [C]ommonwealth to
recover for damage to real or personal property shall be
commenced within three years after the date that the person
seeking recovery first suffers the damage or within three
years after the date the person seeking recovery of such
damage discovers or reasonably should have discovered that
the person against whom the action is being brought is a
person liable pursuant to this chapter for the release or
threat of release that caused the damage, whichever is
later."

G. L. c. 21E, § 11A (4). See Taygeta Corp., 436 Mass. at 226

(individual who brings claim under § 5 [a] [iii] must do so

9
The city has not appealed from the judgment awarding
response costs to the plaintiffs under § 4.
 13

within three years of when plaintiff "discovers or reasonably

should have discovered [1] the damage, and [2] the cause of the

damage"). 10 The plaintiffs argue that the word "damage" in

§ 11A (4) refers specifically to damage under § 5 (a) (iii),

which the plaintiffs contend is limited to damage not reasonably

curable by repair. Accordingly, they argue that the limitations

period should not begin to run until a plaintiff discovers or

reasonably should have discovered that the damage is not

reasonably curable by repair. 11 The city disagrees, arguing that

10
By contrast, claims for response costs pursuant to G. L.
c. 21E, § 4 or 4A, have a statute of limitations that provides:

"Actions brought by persons other than the
[C]ommonwealth pursuant to [§§ 4 or 4A] to recover
reimbursement, contribution or equitable share shall be
commenced within three years after the date the person
seeking such recovery discovers or reasonably should have
discovered that the person against whom the action is being
brought is a person liable pursuant to the provisions of
this chapter for the release or threat of release for which
such costs or liability were incurred, or within three
years of the time when the person bringing the action first
learns of a material violation of an agreement entered into
pursuant to [§ 4A], or within three years after the person
bringing the action incurs all response costs, or within
three years after payment by the person seeking
contribution, reimbursement, or an equitable share for
liability pursuant to the provisions of this chapter, or
within three years after sending notice pursuant to the
[§ 4A, first par.], whichever is later."

G. L. c. 21E, § 11A (2).
11
The plaintiffs rely on this court's holding in Hill v.
Metropolitan Dist. Comm'n, 439 Mass. 266 (2003), for their
contention that damages under § 5 (a) (iii) are those that are
not reasonably curable by repair. In Hill, the trial court
 14

notice of environmental contamination and the identity of the

responsible party is sufficient to trigger the limitations

period.

We must consider the statute of limitations for claims

under § 5 (a) (iii) "in the context of the over-all statutory

scheme and the regulations set forth in the MCP." Taygeta

Corp., 436 Mass. at 226. As we have explained, "G. L. c. 21E

was drafted in a comprehensive fashion to compel the prompt and

efficient cleanup of hazardous material and to ensure that costs

and damages are borne by the appropriate responsible

parties." Id. at 223. Its statutory and regulatory scheme sets

out separate phases of assessment and remediation, which

eventually lead to a decision about the appropriate level of

remediation, beyond which further cleanup would be cost

prohibitive. See 310 Code Mass. Regs. § 40.0860 (2014). More

specifically, in Phase III of this process, the responsible

parties determine whether the contamination can be feasibly

remediated to precontamination levels, and select a feasible

remediation plan. See 310 Code Mass. Regs. § 40.0852 (2014).

Recognizing the different phases of assessment and remediation

instructed the jury that the plaintiff is entitled only to
remediation costs, not damages, unless he or she demonstrates
that there was damage that was not reasonably curable by repair.
Id. at 273. We note, however, that our decision in Hill did not
address the accuracy of the jury instructions, because the
unobjected-to jury instructions became the law of the case. Id.
at 275.
 15

and the different possible levels of cleanup required, G. L.

c. 21E provides for separate and distinct recovery for response

costs under § 4 and property damages under § 5, and sets out two

different statutes of limitations depending on whether the cause

of action arises under § 4 or § 5. See G. L. c. 21E,

§ 11A; Guaranty-First Trust Co. v. Textron, Inc., 416 Mass. 332,

338 (1993). We examine these causes of action, and their

particular purposes, to inform our understanding of the statute

of limitations under § 11A.

a. Private causes of action under G. L. c. 21E. The

primary purpose of G. L. c. 21E is to clean up environmental

contamination, and to pay for the costs associated with that

cleanup. See Taygeta Corp., 436 Mass. at 223. Accordingly, the

statutory and regulatory scheme prioritizes the performance and

financing of cleanup efforts, and then considers the calculation

of property damage that cannot be cured by remediation and

remediation cost recovery. See id. (remediating environmental

contamination is primary purpose of G. L. c. 21E, while

compensating owners for property damage is secondary purpose).

Sections 4 and 4A and their corresponding statutes of

limitations address the former objective; statutes of

limitations under § 5 address the latter.

In order to perform and pay for effective and efficient

remediation, G. L. c. 21E not only mandates that responsible
 16

parties engage in the MCP remediation process, but also provides

for private causes of action pursuant to §§ 4 and 4A to recover

cleanup costs from other responsible parties. See Taygeta

Corp., 436 Mass. at 223. Section 4 allows private individuals

to sue for reimbursement of response costs they have already

incurred. Section 4A allows private individuals to sue for

contribution or equitable share of response costs they have not

yet incurred. Thus, whenever a plaintiff's property is

contaminated, G. L. c. 21E not only prioritizes environmental

cleanup, but also empowers the plaintiff to pursue

reimbursement, contribution, or equitable share of the response

costs necessary to perform that remediation. Sections 4 and 4A,

and not § 5, govern cost recovery for these remediation efforts.

Full remediation of the environmental contamination is a

desirable outcome. See 310 Code Mass. Regs. § 40.1020 (2014).

If the cleanup and cost recovery process fully remediates the

plaintiff's property damage, the plaintiff has suffered

environmental contamination without incurring damages under § 5.

However, cleanup in accordance with G. L. c. 21E and the MCP may

not remediate all of the physical damage to a site, particularly

in cases of significant environmental contamination, as full

remediation may be cost prohibitive. See 310 Code Mass. Regs.

§ 40.0860(7)(a) (2014). See also Department of Environmental

Protection, Conducting Feasibility Assessments under the MCP,
 17

Policy No. WSC-04-160, at 17 (July 16, 2004) (remediation

necessary to reach background levels not feasible if it costs

more than twenty per cent of cost of remediation necessary to

reach level of "No Significant Risk"). Cf. Guaranty-First Trust

Co., 416 Mass. at 338. In those instances, remediation and the

recovery of response costs pursuant to §§ 4 and 4A may not fully

compensate plaintiffs for the harm they have suffered.

Section 5 provides for recovery of this type of residual

damage that cannot be cured or compensated by remediation or the

recovery of response costs. Damage may be residual, in that the

property, even after undergoing the cleanup mandated by the MCP

process, may still contain pollutants diminishing the fair

market value of the property. Bisson v. Eck, 40 Mass. App. Ct.

942, 942 (1996) (jury could find "residual levels of hazardous

materials persisted on the property despite the plaintiff's

cleanup efforts" for purposes of claim under § 5). The

plaintiff may have also suffered temporary loss of use and

resulting economic damage, such as lost rent, that again cannot

be cured or compensated by remediation and response

costs. Guaranty-First Trust Co., 416 Mass. at 336-337. 12 In

12
Although the phrase "not reasonably curable by repair" is
often synonymous with "permanent" at common law, see Belkus v.
Brockton, 282 Mass. 285, 287-288 (1933) (measure of damages at
common law depends on whether injury is permanent or reasonably
curable by repairs), the terms are not interchangeable to
describe damages under G. L. c. 21E, § 5. In Guaranty-First
 18

both instances, the plaintiff's recovery under § 5 is limited to

those residual damages that are not cured by the remediation

process and cleanup cost recovery available under §§ 4 and 4A.

Prior cases have highlighted the importance of the residual

nature of the relationship between damages under § 5 and

response costs under §§ 4 and 4A. Hill v. Metropolitan Dist.

Comm'n, 439 Mass. 266, 273 (2003) (jury instruction that "if the

damage to the plaintiff's property can reasonably be cured, can

reasonably be repaired, remediated, then the plaintiff, instead

[of getting damages under § 5], gets the expense of doing those

repairs, of doing that remediation"); Black v. Coastal Oil New

England, Inc., 45 Mass. App. Ct. 461, 466 (1998) ("to the extent

that the expense of cleanup was recoverable at the time of this

action [because contamination was reasonably curable and there

were no loss of use damages], that recovery could be pursued

only under § 4"); Bisson, 40 Mass. App. Ct. at 943 ("if remedial

measures did not completely cure the problem and the fair market

value of the property was less or diminished due to this prior

Trust Co. v. Textron, Inc., 416 Mass. 332, 337 (1993), we held
that § 5 provides for recovery of damages due to loss of rent
during the period reasonably needed to repair the property.
Thus, the environmental damage to the property was not
permanent, but recovery was still permissible under § 5 because
the damages were not curable or compensable through remediation
and repair costs alone. The Massachusetts Contingency Plan
(MCP) also uses the terms "permanent" and "temporary" to
classify response action outcomes, and those terms have specific
meanings in the MCP entirely separate from our discussion here.
See 310 Code Mass. Regs. §§ 40.1000 (2014).
 19

existing contamination, then the plaintiff would be entitled [to

recover for the property's] diminution in value" [quotation

omitted]). The statute thus prioritizes cleanup and response

costs while still ensuring full recovery. This approach also

guards against double recovery for environmental contamination.

See Guaranty-First Trust Co., 416 Mass. at 338. See

also Mailman's Steam Carpet Cleaning Corp. v. Lizotte, 415 Mass.

865, 870 (1993) ("Recovery of duplicative damages under multiple

counts of a complaint is not allowed"). 13

b. The statutes of limitations of §§ 4, 4A, and 5. The

statute of limitations for a private cause of action under G. L.

c. 21E is governed by G. L. c. 21E, § 11A. Prior to 1992, G. L.

c. 21E did not include a statute of limitations, and

Massachusetts courts were left to determine which existing

statutes of limitations applied to G. L. c. 21E claims.

See Oliveira v. Pereira, 414 Mass. 66, 72-73 (1992) (pre-1992

action brought under G. L. c. 21E, § 4, fell under statute of

limitations for torts, G. L. c. 260, § 2A). In 1992, G. L.

c. 21E underwent significant reform, including the enactment of

13
As explained above, the statute prioritizes cleanup over
calculating the property damage that will remain after such
cleanup has been completed. The statute therefore disallows the
conversion of future cost recovery expenses under §§ 4 and 4A
into claims for present property damages under § 5. Black v.
Coastal Oil New England, Inc., 45 Mass. App. Ct. 461, 465-466
(1998) ("diminution in value analysis generally has no place in
assessing the cost of remediation for temporary injury"
[footnote omitted]).
 20

§ 11A. See St. 1992, c. 133, §§ 271-313. According to the

department, § 11A was added as part of this reform to "more

comprehensively establish statutes of limitations for actions

filed under [G. L. c.] 21E." See Department of Environmental

Protection, The Massachusetts Oil & Hazardous Materials Release,

Prevention & Response Act, 1992 Amendments to Chapter 21E (July

22, 1992).

As discussed, § 11A must be analyzed within the context of

G. L. c. 21E and the MCP. Taygeta Corp., 436 Mass. at 226.

Chapter 21E provides multiple causes of action, and § 11A sets

out different statutes of limitations for each one. Because

G. L. c. 21E prioritizes cleanup, and cleanup under the MCP can

take many years, the statute of limitations for causes of action

that support such cleanup is generous. Specifically, for claims

brought under § 4 or 4A, the suit need only be filed within

three years of the latest of four events, one of which is the

date when the plaintiff has "incur[red] all response costs."

G. L. c. 21E, § 11A (2). Thus, a plaintiff who has conducted

remediation activities can bring suit up to three years after he

or she finishes remediating the property.

Individuals who intend to bring a claim under § 5 (a) (iii)

must do so within three years of when they discover or

reasonably should have discovered the damage and the party

liable under G. L. c. 21E for such damage. Taygeta Corp., 436
 21

Mass. at 226. Here, the relevant question is whether the word

"damage" in § 11A (4) refers specifically to damage under § 5,

that is, damages that cannot be cured and compensated by the

cleanup and cleanup cost recovery processes defined by the MCP

and §§ 4 and 4A, such that the limitations period does not begin

to run until the plaintiff knows there is residual damage not

subject to such remediation and compensation. We conclude that

the reference to damages in both provisions refers to the same

residual claim. 14

As discussed, a plaintiff suffers damage within the meaning

of § 5 (a) (iii) if there is damage that is not curable through

the cleanup and cleanup cost recovery process defined by the MCP

and §§ 4 and 4A. Thus, if a plaintiff is to have notice of a

claim under § 5 for statute of limitations purposes, the

plaintiff must have knowledge that he or she suffered damage

that is not curable by the MCP remediation process. See Olsen

v. Bell Tel. Labs., Inc., 388 Mass. 171, 175 (1983) ("[T]he

court has been guided by the principle that a plaintiff should

be put on notice before his or her claim is barred by the

passage of time"). Such notice is generally not provided until

14
We note that the MCP provides no express guidance on the
meaning of § 11A (4), as the MCP does not address suits
initiated by private individuals. 310 Code Mass. Regs.
§ 40.1201(3) (2014). Nor does the MCP address suits initiated
by the Commonwealth for damage to property. See 310 Code Mass.
Regs. §§ 40.0002(5), 40.1201(1) (2014).
 22

the MCP process is sufficiently advanced to identify residual

property damage.

This understanding of the statute also comports with the

over-all statutory scheme, which imposes deadlines for assessing

the extent of a site's damage. See Taygeta Corp., 436 Mass. at

227 ("An interpretation of the statute of limitations that

imposes on plaintiffs an obligation to investigate their

property in advance of a defendant's completion of the requisite

assessment would be contrary to the statutory and regulatory

scheme"). The liable party is required to determine the full

extent of the damage in its Phase II report, and analyze and

choose from among the available remedies in its Phase III

report. 310 Code Mass. Regs. §§ 40.0835(4)(b), 40.0853 (2014).

It would make little sense to require a plaintiff to

independently determine whether residual property damage exists

prior to the completion of those reports. See Taygeta Corp.,

436 Mass. at 227 ("There is nothing unreasonable in a

plaintiff's decision not to go forward with an assessment

duplicating the work that the defendant is already obligated to

perform"). 15

15
As claims of loss of use are tied to the "period of time
reasonably necessary to repair the damage," these claims are
also dependent on the remediation process. Guaranty-First Trust
Co., 416 Mass. at 333, 339. The Phase II and Phase III reports
required pursuant to the MCP therefore lend necessary clarity to
such claims as well. For this reason, and to avoid splitting
 23

Adopting this understanding of the statute of limitations

for claims under § 5 (a) (iii) also provides a "prescribed and

predictable period of time" within which such claims would be

time barred. Olsen, 388 Mass. at 175. A Phase III report must

be submitted within four years of the site's tier

classification. 16 310 Code Mass. Regs. § 40.0560(2)(c) (2014).

Accordingly, a plaintiff will typically know whether he or she

has a cognizable claim under § 5 (a) (iii) within five years of

notifying the department of the contamination.

Requiring claims under § 5 to be filed before it is clear

whether there is any residual damage not curable pursuant to the

MCP cleanup process would also make little sense. If the

limitations period for § 5 begins as soon as a plaintiff learns

of contamination, he or she could be forced to bring suit before

knowing whether there is a cognizable claim under § 5 (a) (iii).

Plaintiffs would be put in the difficult position of choosing

between whether to sue immediately, and potentially recover

nothing, or to wait for more information, and potentially find

their claim under § 5 time barred. This makes even less sense

claims under § 5, the statute of limitations for claims under
§ 5 should be uniformly defined.
16
A site must undergo a tier classification within one year
of notifying the department of the release of hazardous
materials or one year of the department issuing a notice of
responsibility, whichever is earlier. 310 Code Mass. Regs.
§ 40.0404(3) (2014).
 24

when plaintiffs may also have a claim under § 4 or 4A that could

be brought years later, including after the remediation process

is completed. Requiring plaintiffs to bring a claim under § 5

(a) (iii) early in the assessment and remediation process,

before clarification of whether there is residual property

damage, and certainly any realistic understanding of the extent

of that damage, would therefore be wasteful for both the parties

and the court system.

The city contends that this case is "functionally

identical" to the facts in Taygeta Corp., and that Taygeta Corp.

subverts this interpretation of § 11A (4). We disagree. In

that case, hazardous materials migrated from the defendant's

property to the plaintiff's property by way of subsurface

groundwater contamination. Taygeta Corp., 436 Mass. at 219-220,

228. We held that the statute of limitations did not begin to

run until the plaintiff had received test results indicating

that its groundwater was contaminated and resembled groundwater

samples taken from the defendant's property. Id. at 228.

However, the record in Taygeta Corp. indicates that both parties

stipulated prior to trial that the plaintiff's property suffered

permanent damage. Thus, the central issue was not whether the

damage was not reasonably curable by repair, but whether a

plaintiff's suspicions about possible contamination created a

duty to investigate that could trigger the limitations period.
 25

Additionally, our decision in Taygeta Corp. stressed the

importance of the MCP process for identifying the appropriate

trigger for the statute of limitations, a principle we reaffirm

today. See id. at 225-227.

In the instant case, no one had knowledge of whether the

damage was reasonably curable more than three years before the

plaintiffs filed suit. The initial soil test results that

notified the plaintiffs of the contamination found hazardous

materials only in one of the two soil samples, indicating the

contamination may have been limited to that stockpile location.

Even after attempting a limited removal action, the

association's licensed site professional indicated that the

extent of the contamination was unknown. At best, the city

learned of the scope of the contamination, and that such

contamination could not be fully remediated, when the

geophysical report was completed, sixteen months before the

plaintiffs filed suit. That information was not available to

the plaintiffs until the city submitted its Phase II and Phase

III reports, four months before the plaintiffs filed suit.

Accordingly, the plaintiffs' suit was timely as a matter of

law. 17

17
Because we conclude that the plaintiffs' § 5 (a) (iii)
claim was timely as a matter of law, we need not address the
plaintiffs' argument that the jury instructions on the burden of
persuasion were in error.
 26

3. Conclusion. For the reasons discussed, we hold that as

a matter of law the plaintiffs' claim under § 5 (a) (iii) was

not time barred. The judgment is vacated, and the case is

remanded to the Superior Court for further proceedings

consistent with this opinion.

So ordered.