Legal Lode: VOC but SOL

Think again, those of you who believe a tornado is the greatest threat to a mobile home park. If the park sits next to a landfill built without a liner, residents should worry less about the weather and more about the water. Groundwater contamination is silent and gradual, but no less acute.

Previously, this column introduced Claude and Virginia Royal who, after finding pollutants in the wells they had installed to serve residents of their park, sued Campbell County, Va., whose landfill abutted the park and allegedly caused the harm. (“Well To-Do,” Waste Age, March 2012)

At trial, a geologist testified for the County that industrial solvents present in the leachate from an unlined former disposal area (Phase II) could have contaminated the groundwater. He also suggested landfill gas as a likely culprit – through direct contact with groundwater or via condensation. Testimony from a hydrologist confirmed the same scenario, adding that the detected chlorinated solvents were “often found . . . in the groundwater around unlined landfills.”

Following the hearing, the trial judge issued an opinion finding that one or more volatile organic compounds (VOCs), which had seeped from the landfill to the groundwater on the Royals’ property, constituted a “discharge of oil” in violation of the Virginia law making the County liable for any damages to the Royals’ property. As for the claim of inverse condemnation, the judge concluded that “[t]he migration of contaminants from the landfill into the [Royals’] groundwater . . . makes the County liable for any damage or diminution of value . . . .”

After an eight-day trial devoted just to the amount of damages, a jury returned a verdict for the Royals in the amount of $9 million. For good measure, the judge ordered the County to pay the Royals attorneys’ fees and costs, as the state oil discharge law allows.

On appeal, the Virginia Supreme Court, by a 5-2 margin, reversed the trial court’s judgment holding the County liable under the oil discharge law and overturned the jury’s award of damages.

Starting with an explanation of the state waste management regulations and the oil discharge law, the majority opinion then reviewed the expert testimony which plainly established that Phase II “release[d] solid waste constituents [which] impacted the groundwater in the uppermost aquifer beneath the facility.” Unmistakably, the cause was the “natural movement of leachate and landfill gas directly into the groundwater – a phenomenon made “possible because Phase II was not required to have a bottom liner.”

The state waste management rules, not the oil discharge law, “squarely [and] extensively govern the operation of a solid waste disposal facility and impose requirements designed to prevent seepage of leachate and landfill gas into the groundwater,” the opinion stated. “Even though Phase II was closed in 1995, the County was required to install and maintain a ground-water monitoring system that [was] capable of . . . detect[ing] contaminated groundwater in the uppermost aquifer at the northern boundary between the Landfill and the Royals’ property * * * and to maintain both [a] leachate collection system and landfill gas monitoring system . . . during the postclosure period.” By comparison, the oil discharge law has no regulations for solid waste disposal facilities, the court noted.

The high court tossed out the $9 million jury award to the Royals, leaving the County with a final judgment in its favor on all claims and no obligation to the Royals who, as the majority saw it, abandoned their inverse condemnation claim, effectively putting all their eggs in one basket: liability under the oil discharge law with damages calculated accordingly. “[T]he trial court erred in awarding summary judgment to the Royals and finding the County liable under the Oil Discharge Law . . . [leaving no] independent basis for the jury’s award of damages.”

[Campbell County v. Royal, et al., Va. S.Ct., No. 101168, Jan. 13, 2012.]

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].