Neighbor can sue in tort at common law after contamination
When cleaning up a contaminated property, often the cleanup asks a neighbor to authorize certain measures to deal with the contamination that migrates to that neighbor’s property. A Fourth Circuit Court of Appeals case decided earlier this month reminds us that even if the cleanup meets all of the regulators’ requirements, the neighbor may still have claims for more.
West Virginia State University Board of Governors v Dow Chemical Co.No. 20-1712 (4and Cir. January 10, 2022), involved remedial action under the Resource Conservation and Recovery Act (RCRA) on “Institute facilities” adjacent to, but not related to, the University campus. Groundwater flows from the Institute facility below the campus. This groundwater contains solvents at low concentrations.
The RCRA requires a Remedial Action Permit to address releases of hazardous components from former solid waste management units at a facility that had “provisional status” or a conventional permit to store, process, or dispose of hazardous waste. The RCRA traditionally adopts risk-based corrective measures. Therefore, eliminating exposure pathways through institutional controls can be a useful way to address issues that are not currently a threat, but could be if a pathway were opened. Contamination by low concentration solvents circulating under the University provided an opportunity for this type of remedial action. The corrective measures permit provided for the imposition on campus of a restrictive covenant prohibiting the use of groundwater and requiring the installation of a vapor barrier in the construction of any new building, but did not include measures to capture the plume.
The University has refused to consent to the imposition of a covenant on its property unless the parties responsible for cleaning the Institute’s facilities agree to active measures to prevent contaminated groundwater from reaching the campus. , as well as compensation. The industrial parties declined.
The University then sued in state court on a variety of common law theories. WVSU sought both an injunction to demand additional cleanup and damages. The industrial defendants returned the case to federal court under the Federal Agents Revocation Act. The district court remanded the case at the request of the University and the defendants appealed.
The appeals court’s decision, therefore, focused primarily on whether an RCRA corrective action permittee is a “federal officer” for the purposes of the revocation law, holding that the permittee is not. . But the court also considered whether the University’s effort to obtain an order requiring the defendants to mitigate the contamination and pay damages for the impact on campus property constituted impermissible interference with a federal action.
The court held that the RCRA did not bar suits for additional relief. Although this was a remedy under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the appeals court held that a claim for damages in state court, at least, would not constitute an inadmissible challenge to an appeal.
Often, an overwhelmed neighbor will be happy that regulators have declared sufficient cleaning and granted protection against further sanitization requests. But sometimes that’s not good enough for the neighbor, and the neighbor may be able to pursue common law tort claims. In our experience, the decline in value of a property subject to even a successful clean-up can be surprising. Prudent repairers may want to consider this exposure when developing an overall strategy.
©2022 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XII, Number 19