J.R. VINAGRO CORPORATION
96-108 PINE STREET LLC CLEAN HARBORS ENVIRONMENTAL SERVICES, INC.
96-108 PINE STREET, LLC
J.R. VINAGRO CORPORATION Third Party Defendant CLEAN HARBORS ENVIRONMENTAL SERVICES, INC.
J.R. VINAGRO CORPORATION AND WESTCHESTER FIRE INSURANCE COMPANY
Vinagro: Michael A. Kelly, Esq.; Erin A. Hockensmith, Esq.;
Jackson C. Parmenter, Esq.
96-108 Pine St: Armando E. Batastini, Esq.; Jeffrey S.
matter was tried upon the merits with the Court sitting
without a jury for over eleven days from August 7, 2017
through September 19, 2017. The claims remaining for
adjudication at trial were:
a. J.R. Vinagro Corporation's (Vinagro) direct claims
against 96-108 Pine Street LLC (Pine Street) for breach of
contract and unjust enrichment in C.A. No. PM 2012-1719;
b. Pine Street's Amended Third Party Complaint against
Vinagro for, inter alia, breach of contract in C.A.
No. PM 2012-1322 and C.A. No. PC 2012-2141; and
c. Vinagro's Third Party Counterclaim for breach of
contract and unjust enrichment also in C.A. No. PM 2012-1322
and C.A. No. PC 2012-2141.
parties were well prepared, the presentations of witnesses
was thorough, and the advocacy was vigorous. Over 200
exhibits consisting of a few thousand pages were submitted.
The parties filed post-trial memoranda and reply memoranda.
The Court heard arguments of counsel on November 20, 2017.
The Court asked for and received from counsel proposed
findings of fact and conclusions of law. 
trial, Vinagro moved pursuant to Super. R. Civ. P. 52(c) for
judgment as a matter of law on the liquidated damage claim of
to Super. R. Civ. P. 52(a), the Court makes the following
findings of fact and conclusions of law.
Street owned the property located at 100 Pine Street,
Providence, RI and, through a manager, conducted a parking
operation in two distinct areas: 1) a six-level parking
garage (the Garage); and 2) a blacktop surface parking lot
abutting the Garage (the Parking Lot Area). Pine Street
received a notice of violation from the City of Providence
concerning the structure of the Garage. To abate the
violation, the City required Pine Street to demolish the
in early 2011, Pine Street engaged the firm of Robinson Green
Beretta (RGB) to prepare plans and specifications for the
demolition of the Garage. Russell Ferland (Mr. Ferland), a
professional engineer and career RGB employee, supervised the
preparation of the drawings and prepared the specifications
for the demolition. While Mr. Ferland met with Anastasia
Contos (Ms. Contos), a principal of Pine Street, most of his
interaction on the project was with Pine Street's
attorneys, Joseph DiStefano (Mr. DiStefano) and Robert
Stolzman (Mr. Stolzman) of Adler Pollock and Sheehan (APS).
and not in connection with the demolition project, Pare
Engineering Corporation (Pare) prepared a Phase I
Investigation Report for Site Evaluation Relative to
Hazardous Waste and Materials at the Pine Street Garage dated
November 18, 1998 (the Phase I Report). (Pl.'s Ex. 105A.)
The Phase I Report was addressed to Mr. DiStefano and was
within APS' files. Pare had also prepared an ASTM Phase I
Environmental Site Assessment Update for the Pine Street
Garage dated September 2002 (the 2002 Update). (Pl.'s Ex.
105D.) The 2002 Update was also addressed to Mr. DiStefano
and was within APS' files (collectively, these reports
are referred to as the Pare Reports).
of the Pare Reports were given to Mr. Ferland or Vinagro
prior to the commencement of the demolition contract.
research, Mr. Ferland discovered an old plan of the site,
which showed a warehouse building on the portion of the site
which constituted the Parking Lot Area. Mr. Ferland testified
that he was concerned about what happened to the debris from
the demolition of the warehouse. He wanted to know whether it
was placed in a hole or it was a clean site. He testified
that Mr. DiStefano said it was a clean site. Mr. Ferland made
no independent inquiry as to whether Mr. DiStefano was
correct. Mr. Ferland toured the Garage and found that there
was water in the basement, as well as a sump pump and an
Street solicited bids for the demolition of the Garage based
on Mr. Ferland's specifications. Vinagro was the
contractor that Pine Street selected. As of July 7, 2011,
Pine Street and Vinagro executed a Demolition Contract with
the specifications attached for a fixed price of $297, 000
(Pl.'s Ex. 3.) The scope of work for the Demolition
Contract was to demolish the Garage, including the basement
slab, and to remove the asphalt covering the Parking Lot
Area. Also on July 7, 2011, the parties executed Amendment
Number 1 to Demolition Contract which provided for filling
the vault area abutting the Garage for a price not to exceed
$47, 000 and to resurface, at Pine Street's request,
portions of Pine Street for a price not to exceed $25, 650.
(Pl.'s Ex. 5.) (The Demolition Contract and Amendment
Number 1 are referred to throughout as the Contract.)
2 of the Contract required Vinagro to obtain all permits.
Specifically, it stated:
"As promptly as possible following the execution of this
Demolition Contract by both parties, Contractor shall apply
for, obtain and pay for the Demolition Permit and all other
permits and governmental fees, licenses and applications (the
"Approvals") necessary for the proper execution and
completion of the Work. The Contractor acknowledges that the
cost of obtaining such Approvals is included in the Contract
Price (as defined herein). Both parties acknowledge that time
is of the essence in the obtaining of such approvals."
11 provided that time was of the essence and provided for
liquidated damages of $2000 per day after the Completion Date
which was to be eight weeks following the Commencement Date.
D of Subsection 3.1 of Section 315000 of the Contract
addressed the issue of dewatering and provided as follows:
"Provide, construct, and maintain, at
no additional expense to the Owner, all pumps, piping,
drains, well points, or any other facility for the control
and collection of ground water or surface water. Provide
dewatering operations of such a nature so that all
excavations, fillings, and backfills are kept, at all times,
free from water, so that all demolition is performed in a dry
working area, including soil for a minimum distance of
1'-00" below foundations, existing basement slabs,
and footings. Repair any damage resulting from the failure of
the dewatering operations and any damage resulting from the
failure to maintain the area of all structure and work in a
suitably dry condition . . . Perform the pumping and
dewatering operations in such a manner, that no loss of
ground/soils will result from these operations. Take
necessary precautions to protect new and existing work from
flooding during storms and from other causes. Provide
continuous pumping where required to protect the work and/or
to maintain satisfactory progress."
D of Subsection 1.7 of Section 024116 of the Contract
addressed the issue of hazardous waste and provided as
"D. Hazardous Materials: It is not
expected that hazardous materials will be encountered in the
Work, except possibly for the oil/water separator liquid and
"1. If materials suspected of containing hazardous
materials are encountered, do not disturb; immediately notify
Architect and Owner. Hazardous materials will be removed by
Owner under a separate contract."
6(f) of the Contract provided for an Owner's
"(f) The Owner may designate an Owner's
Representative, who shall have the authority to access the
Property at any time in his sole discretion to inspect all
work and materials, and to stop any Work on the Project when
it appears to the Owner's Representative that the
requirements of the Contract are not being met. . . . The
Owner's Representative shall have the authority to decide
questions and make interpretations in regard to issues which
arise under the Contract."
there was no writing which designated an Owner's
Representative, the Vinagro employees who testified at trial
stated that most of their communications concerning the
Contract and the work being performed were with Mr. DiStefano
or Mr. Stolzman.
E. 3 of Subsection 3.5. of Section 024116 required Vinagro to
"Cap the connection to the sewer from the oil/water
separator. All work to conform to the Narragansett Bay
from August 5 through September 26, 2011
commenced on the demolition of the Garage no later than
August 5, 2011. Pine Street engaged Henry Benn (Mr. Benn) to
serve as a field observer. In that capacity, Mr. Benn and his
associates drafted daily Field Observation Reports (the Benn
Reports) detailing the activity on site from the beginning of
demolition. Dana Zewinski (Mr. Zewinski), a senior employee
at Vinagro who had responsibility for overseeing the
Contract, Mr. DiStefano, Mr. Ferland, and Kerry Anderson, the
Providence Building Inspector, were sent copies of his
September 2, 2011, six feet of water was observed in the
basement of the Garage. (Pl.'s Ex. 107.) Vinagro
commenced dewatering operations even though it did not have a
dewatering discharge permit. As of September 8, 2011, Vinagro
was dewatering the project eight hours a day using its own
pumps with the effluent being filtered through a filter bag.
September 7, 2011, Vinagro was approximately seventy or
eighty percent complete with its base Contract scope of work
at the Garage. At that time, the remaining work to be
completed by Vinagro included the removal of the remaining
slab foundations of the Garage, backfilling the Garage area,
the removal of the oil/water separator, and the removal of
the asphalt on the Parking Lot Area of the site. Those
activities were expected to take approximately two to three
weeks to complete.
September 8, 2011, as Vinagro's foreman was excavating
the foundation slabs in the center of the Garage along the
foundation wall that was adjacent to the Parking Lot Area, he
encountered petroleum in the groundwater that appeared to be
coming from the Parking Lot Area. (Pl.'s Ex. 107,
JRV01587.) Mr. Benn viewed the black liquid encountered by
Vinagro on September 8, 2011 and testified that it was
obviously oil-it looked and smelled like oil. Ms. Tracy
Loftus (Ms. Loftus), Vinagro's project manager at the
time, observed and smelled the petroleum and contacted Mr.
Zewinski and Mr. Stolzman.
Zewinski contacted Vinagro's environmental consultant,
Marshall Environmental (Marshall). Marshall came to the site
on September 8, 2011 and worked with Vinagro to create an
earthen berm and used booms, oil socks and absorbent pads to
contain the petroleum. Mr. Stolzman also came to the site on
September 8, 2011 and directed Ms. Loftus to contact the
Department of Environmental Management (DEM). While at the
site, Mr. Stolzman recommended that Vinagro contact Clean
Harbors because of Clean Harbors' relationship with DEM.
Ms. Loftus then contacted DEM. A DEM official came to the
site and advised Vinagro to find the source of the petroleum
receiving a phone call from Mr. Benn, Mr. Ferland also went
to the site on September 8, 2011 and observed that oil was
leaking from an old bulkhead and from below the foundation.
Mr. Ferland confirmed that the oil appeared to be moving from
the direction of the Parking Lot Area of the site where a
building/warehouse had previously been demolished.
September 9, 2011, Vinagro drilled three exploratory holes
along the foundation wall of the Garage and outside of the
earthen berm area to try to determine the source of the oil.
However, these exploratory holes did not reveal the source.
On September 12, 2011, Ms. Loftus, Mr. Stolzman, and Ms.
Kristen Sherman (Ms. Sherman), an environmental attorney at
APS, met with Kenneth McDermott (Mr. McDermott), a Senior
Project Manager for Clean Harbors, at the site to discuss the
petroleum contamination. At that September 12, 2011 meeting,
Mr. McDermott smelled oil in the excavation and observed that
the oil was coming from the Parking Lot Area.
September 13, 2011, Mr. McDermott provided Ms. Loftus with a
Clean Harbors' proposal that included those items
discussed at their September 12, 2011 meeting, including, but
not limited to, performing historic research and test borings
to determine the source of the contamination, obtaining a DEM
RIPDES dewatering permit, a frac tank to treat the petroleum
impacted water "to allow for impacted soil, floor and
footing removal, " and the services of an environmental
specialist at the site. Ms. Loftus provided a copy of Clean
Harbors' September 13, 2011 proposal to Mr. Stolzman when
he was at the site. (Pl.'s Ex. 17.) The items included in
Clean Harbors' proposal, and the associated costs to
address the petroleum impacted water at the site, greatly
differed from Vinagro's original work plan-one that
included the use of filter bags and silt sacks at a minimal
total cost of $2000.
addition, in or around September 13, 2011, in order to keep
the work moving forward as much as possible, Vinagro began
demolishing the foundation wall along Pine Street-the only
area within the Garage that Vinagro could continue to perform
its work under the Contract as a result of the petroleum
email dated September 15, 2011, Mr. Stolzman advised Ms.
Loftus that Mr. DiStefano and he "were looking for any
old environmental reports, . . . we did locate an excerpt
from a document that indicates there was a boiler room with a
tank on the northeast corner [the Parking Lot Area] of the
'warehouse.'" (Pl.'s Ex. 20.) Prior to the
receipt of Mr. Stolzman's email, Vinagro had no knowledge
that there was a boiler room with an underground storage tank
on the Parking Lot Area of the site.
September 16, 2011, Mr. Stolzman, after receiving unit costs
for extra work, questioned the proposed dewatering charges.
(Pl.'s Ex. 23.) Ms. Loftus further explained to Mr.
Stolzman by a reply email how the planned dewatering
activities were impacted by the petroleum:
"We had basic dewatering for the project: one pump which
ran during the course of the day. Because of the oil found,
we have to run an additional pump and both are running 24 hrs
to keep the water levels as low as possible to keep the
material from being contaminated. Also, because we can't
backfill the hole as per our work plan, we have to keep the
pumps running for longer than expected. . . . [W]e have had
to monitor and replace the booms and pads around the sump to
absorb the oil . . .
"Once we start to remove contaminated material, we may
need to increase the dewatering plan beyond the approved
scope to include environmental devices (such as a defrac
tank) and a potential permit to DEM." Id.
email dated September 19, 2011, Mr. Stolzman provided Ms.
Loftus with Pare Site Plans dated November 1998 from the
Phase I Report that Mr. DiStefano found in his office that
"indicate the location of the abandoned in place UST
adjacent (immediately northeast) to the demolished warehouse
boiler room." (Pl.'s Ex. 24.) The Pare Site Plans
indicated the presence of a 25, 000 gallon UST abandoned in
place, a pipe chase, drums, abandoned boilers, a hot water
tank, monitoring wells, and a previously demolished one-story
"warehouse concrete block" on the Parking Lot Area
of the site. (Pl.'s Ex. 24, JRV00126-00127.) On September
23, 2011, Clean Harbors provided Ms. Loftus with a revised
proposal which tasked Clean Harbors with performing the
following scopes of work:
a. Determining the source and extent of oil encountered on
the site. (Pl.'s Ex. 31.)
b. Determining what governmental agency had jurisdiction over
the discharge of the water that needed to be pumped from the
site and obtaining the requisite permit for the discharge.
c. Observation and testing of excavated material from the
Parking Lot Area of the site to determine the necessary
extent of excavation to remediate to residential standards.
(Pl.'s Ex. 31.)
began excavating the underground storage tank on September
21, 2011. (Pl.'s Ex. 106, JRV01599; Pl.'s Ex. 30,
JRV00142.) Per instructions from DEM, work on site stopped on
September 26, 2011 due to the lack of a dewatering discharge
the Dewatering Permit
work stopped on September 26, 2011, Vinagro asked Clean
Harbors to obtain a dewatering permit. Clean Harbors
struggled with determining from what jurisdiction it should
obtain the permit. In downtown Providence, the City
Department of Public Works (DPW), DEM, and the Narragansett
Bay Commission (NBC) have ownership and/or jurisdiction over
McDermott, the site supervisor for Clean Harbors, believed
that DEM had jurisdiction based on his experience with the
Route 195 relocation project that involved multiple treatment
systems. "Some fell under NBC but the majority of those
were under DEM jurisdiction." (Tr. 64:11-12, Aug. 10,
2017.) Consequently, Mr. McDermott focused his efforts on DEM
and, in accordance with his September 13 proposal, prepared
and then submitted the RIPDES application to DEM on October
18, 2011. Simultaneously, Mr. McDermott was inquiring of DPW
if they had jurisdiction over the lines, and, since DPW maps
had conflicting information, he was referred to NBC.
Eventually, Mr. McDermott approached NBC where he discovered
the NBC lines are on a GIS platform. On October 14, 2011, NBC
"indicated that there were lines in the streets that
terminate at their facility, however[, ] the catch basins
were not on their maps." (Pl.'s Ex. 41, JRV00270.)
Mr. McDermott asked NBC to double check all lines and on
October 20, 2011 NBC reconfirmed ...