Source: http://www.lexology.com, September 27, 2012
By: Robert S. Sanoff, Foley Hoag LLP
In an environmental dispute between innocents involving a Church and a downgradient property owner, a federal court recently found the Church, although without original sin, was less innocent and should bear all the costs of the cleanup, even the costs of cleaning up an independent source of contamination on the downgradient property. In Alprof Realty LLC v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, the Church had bought a property with knowledge that it was contaminated. The Church cleaned up the source on its property and was investigating groundwater contamination on the downgradient properties when it discovered what it believed was an independent and additional source of contamination that allegedly was contributing to groundwater contamination at the downgradient property.
While acknowledging that the downgradient property owner might be “incidentally benefitted” by the cleanup of the contamination coming from the independent source, the Court took a surprisingly uncharitable view of the Church’s various claims seeking to get some form of contribution from the downgradient owner. According to the Court, the Church was not entitled to have the downgradient property owner contribute since the Church would have conducted the same groundwater investigation and cleanup whether or not there was an independent source, However, assuming the downgradient property owner would have had to pay to address the contamination from the independent source had the Church not done so, the Court’s decision seems too harsh.
The Court goes to great length to establish that this case did not involve a single CERCLA site with multiple PRPs who all caused the contamination or shared in the liability. Instead, the Court finds that this is a case involving two CERCLA sites – the Church property and the downgradient property. While the Court fairly notes that the Church should not be able to require the downgradient property owner to contribute to the cleanup of the contamination that has migrated from the Church property, the Court never explains why the downgradient property owner should get the windfall of having the Church pay 100% of the costs to remediate the groundwater contamination from the independent source. Fairness would seem to dictate that the downgradient property owner should contribute something to reflect the costs they avoided in not having to undertake cleanup of contamination from that independent source.
In the absence of contamination from the Church property, the downgradient owner would presumably have had to pay for the cleanup of contamination from the independent source. Therefore, putting the entire burden on the Church results in an “unjust enrichment” of the downgradient owner. Cleaning up one source cleans up the other. Both property owners benefit; both should share in the costs.