United States District Court, D. New Hampshire
Mareld Company, Inc.
New England Telephone and Telegraph Company n/k/a Verizon New England Inc.
L. Pastori, Esq. Beth A. Deragon, Esq. Jeffrey M. Karp, Esq.
Nathaniel R. Koslof, Esq. Nicholas M. O'Donnell, Esq.
Kyle M. Noonan, Esq. Mark B. Rosen, Esq.
MEMORANDUM AND ORDER
BARBADORO UNITED STATES DISTRICT JUDGE
Company seeks to hold New England Telephone and Telegraph
Company (“NET”) liable for the cleanup of
polychlorinated biphenyl (“PCB”) contamination at
a commercial property that Mareld leased to NET. NET argues
that Mareld's state-law claims for breach of contract and
negligence per se are time-barred. It is undisputed
that this action was filed more than three years after the
lease ended, which is the applicable limitations period.
Accordingly, I must determine whether the discovery rule
tolls the statute of limitations.
1970 until 2011, NET leased a motor vehicle garage facility
located at 100 Tri City Road in Somersworth, New Hampshire
from Mareld and its predecessors. The garage was constructed
around 1970, shortly before NET took possession. The original
lease agreement, executed in 1970, provided for a twenty-year
lease term. A provision in the 1970 lease stated that
“at the expiration of the said term [NET] will quit and
surrender the leased premises in as good state and condition
as reasonable use and wear thereof and alternations therein
will permit.” Doc. No. 34-8 at 1.
the 1970 lease expired in 1990, Mareld and NET signed a new
lease agreement for a five-year period. The parties later
executed four amendments to the 1990 lease, extending the
lease term incrementally through October 2011. At the end of
the term, the 1990 lease required NET to “peaceably
yield up [the] Premises and all additions thereto to
[Mareld], leaving the same clean and in such repair, order
and condition as in the Commencement date.” Doc. No.
34-10 at 4.
vacated the facility in 2008, when it sold its northern New
England landline telephone business to FairPoint
Communications. FairPoint continued to use the facility until
October 2011, paying $37, 541 in monthly rent at the end of
the lease term. Doc. No. 81-3 at 2. I assume, without
deciding, when resolving the statute-of-limitations issue
that NET remained responsible to Mareld under the 1990 lease
during FairPoint's occupancy.
were first detected at the facility in 1990, during a routine
cleaning of garage floor drains. NET's environmental
consultant, Clean Harbors, conducted wipe sampling of four
floor drains and the surrounding garage floor surface and
collected soil samples from the drain discharge area behind
the garage. Testing confirmed PCBs exceeding the regulatory
limit in the garage floor drains and the drain discharge
soil. The contaminated soil was removed, and the floor drains
were decontaminated following the United States Environmental
Protection Agency's cleaning instructions. Another round
of sampling and testing revealed the continued presence of
PCBs above the regulatory limit in the floor drains. Clean
Harbors noted these results in an October 1990 report and
stated that the type of PCB mixture detected, Aroclor 1254,
“was once a common constituent of transformer oil, and
it is possible that PCBs were at some time in the past
released during the handling of transformers in the
garage.” Doc. No. 79-8 at 34.
NET's behest, Clean Harbors conducted another round of
cleaning and follow-up sampling. In a May 1991 report, Clean
Harbors stated that the second remediation reduced the PCB
levels to below the regulatory limit and that no further
action was needed. Doc. No. 79-8 at 39. Mareld received both
reports around the time they were issued. The reports were
submitted to the New Hampshire Department of Environmental
Services (“DES”), which did not require
additional assessment or remediation.
connection with refinancing the property in 1991, Mareld
hired Groundwater Technologies, Inc. (“GTI”) to
prepare an environmental site assessment report. GTI
collected a composite groundwater sample and soil samples
from the floor drain discharge area and three locations where
monitoring wells were installed. Testing confirmed that,
where detected, PCB levels were below the regulatory limit.
Doc. No. 79-8 at 12, 15.
2010, FairPoint retained St. Germain Collins to assess the
utility pole storage yard at the facility for various
contaminants. St. Germain Collins collected soil samples from
the pole storage areas, pole debris pile, and adjacent areas.
Aroclor 1254, the same PCB mixture found in 1990-91, was
detected in the upper six inches of some soil samples. The
contaminated soil was removed in August 2011. Confirmation
sampling showed that any remaining PCBs in the pole yard were
below the regulatory limit. St. Germain Collins submitted a
report dated October 3, 2011 to DES, which summarized its
investigation and remedial actions and noted that the cause
of the PCB contamination was unknown. Doc. No. 79-9 at 7-10.
In December 2011, DES issued a “no further
action” letter and removed the property from its active
project list. Doc. No. 79-10.
kept Mareld apprised of St. Germain Collins's
investigation, and Mareld received a copy of the October 3,
2011 report around the time it was prepared. That same month,
Mareld's consultant, GeoInsight, observed oil stains on
the garage floor during an inspection of the property but did
not test the floor ...