Section 5(a)(iii) of the Massachusetts Oil and Hazardous Material Release Prevention and Response Act (“Chapter 21E”) makes persons liable to clean up releases of oil or hazardous material also liable to any other person for property damage caused by the release. The Supreme Judicial Court decided a case on January 19 restating clearly that that private liability for property damage is residual to the claim for a cleanup or cleanup costs. Grand Manor Condominium Ass’n v. City of Lowell, No. SJC-12294 (Ma. Jan. 19, 2018). That is, a plaintiff can not recover for damage that a cleanup will fix.

Often a cleanup under the Chapter 21E regulations — the Massachusetts Contingency Plan or “MCP,” 310 CMR 40.0000 — results in hazardous constituents remaining in soil or groundwater at a site. Containment — from a sophisticated landfill cap to pavement — can be used to cut off exposure and therefore to achieve an acceptable risk. But that condition may diminish the value of the property, even though the property is “cleaned up.” Section 5(a)(iii) allows claims for that diminution and similar kinds of situations.

Grand Manor decides that the three year limitations period for a section 5(a)(iii) claim begins to run only when the plaintiff learns that the damage is permanent and not going to be remedied by the cleanup. In that case, waste deposited in an old quarry by the City of Lowell allegedly impaired the value of the condominiums built over it. The plaintiffs knew of the problem fir years before the City’s MCP reports made clear that a complete cleanup would be infeasible. Only then did their three years begin to run.

Notice that while this holding reinforces the defendant-friendly rule on the measure of damages, it grants a rather extended time to sue.