FAQs on Environmental laws & EPA Claims

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What is environmental law?

A. Environmental law is a very broad area of the law consisting of federal and state statutes, regulations, and case law relating to the prevention and cleanup of contamination of the environment--including the ground, water, and air--by chemicals, hazardous wastes, and other pollutants. It is dominated, but not completely controlled, by federal and state governmental agencies. These include the Environmental Protection Agency (EPA), and state agencies, such as the Missouri Department of Natural Resources (MDNR), or Kansas Department of Health and Environment (KDHE), who administer a large body of federal laws and regulations.

Environmental law also includes private actions which can be brought by citizens to force the cleanup of contamination or pollution. Such suits are provided for in a number of federal statutes. Environmental lawsuits can also be brought under the common law for damages to person or property resultin from contamination of water, land, or air, or exposure to harmful substances.

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What kind of actions can be brought by an individual for environmental harm?

A. Under several federal environmental statutes, including the Clean Water Act (CWA), the Clean Air Act (CAA), the Resource Conservation and Recovery Act (RCRA), and the Comprehensive Environmental Response and Liability Act (CERCLA), among others, an individual may bring a "citizen suit" to force the cleanup of environmental contamination. These lawsuits are brought on behalf of the government and are limited to enforcement of either state or federal environmental laws or regulations. For example, a citizen suit may be brought under the Clean Water Act to stop a polluter from illegally discharging hazardous waste into a stream. If the government has already taken action against the polluter, a citizen suit is generally not allowed to proceed.

Private individuals may also file lawsuits to obtain compensation for damage caused by environmental contamination to their property or for personal injury under the state common law. For example, an individual whose private property has been affected by the release or discharge of toxic chemicals from a manufacturing or other business concern may have recourse, not only by a citizen suit under federal law to force a cleanup, but can also under state common law bring a claim to recover for property damage, bodily harm, or personal injury caused by the contamination.

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What kinds of claims can be brought under the common law?

A. Most individual lawsuits for environmental harm caused by a third party are brought pursuant to state common law and include claims seeking recovery for damages to property, for personal injury, or bodily harm. Such lawsuits are often based upon several theories of liability, including nuisance, trespass, negligence and/or strict liability.

Nuisance

Under the common law, a claim for nuisance is based on the unreasonable interference, or the loss of use and enjoyment, of one's property because of the actions or unlawful conduct of a nearby landowner. A simple example of a nuisance case would be a pig farm that moved in next to a residential area. The interference with the homeowner's right to peaceably enjoy their property caused by the odor of a pig farm could be actionable as a nuisance. Damages in a nuisance action may include the diminution of property value associated with contamination, as well as damages for the loss of use of the property and its peaceful and quiet enjoyment, or other environmental complications involved in a cleanup. Nuisance is closely related to the doctrine of trespass, but does not necessarily require a direct physical invasion of the claimant's property. Both nuisance and trespass can provide damages for the difference between the value of an individual's contaminated property and the value of the property were it not contaminated.

Trespass

Trespass is a claim under the common law for direct, physical invasion or contamination of a person's property. A trespass would occur when one neighbor throws their trash into another neighbor's yard without permission to do so. Damages for trespass are generally measured as the cost to repair or clean up the property to its former precontaminated state. Some states limit damages to the value of the property. In other words, where the cost to clean up the property exceeds the market value of the property, the property owner is limited to recovering the fair market value, even if that is less than it would cost to clean up the pollution. Other states have held that in pollution cases this rule should not apply, and the cost to repair should be awarded as damages even if that amount exceeds the market value of the property.

Strict Liability

A lawsuit may be based on the theory of strict liability for environmental harm if the potential defendant used a substance considered so hazardous that the law will award an adjacent property owner damages as a matter of course if the hazardous substance escapes and migrates to someone else's property. If strict liability applies, fault is not an issue, and the reason why the substance was released by its owner does not matter. The defendant will be held liable for damages even if they were not negligent. As in trespass, damages to property are generally measured in terms of the cost to repair the property to its former pre-contaminated state.

Negligence

Under a negligence theory, the person bringing the lawsuit must prove that the defendant acted, or failed to act, in such a manner as to cause the harm complained of. The defendant will be held liable for contamination only if they used the contaminant in question in a manner that falls below the standard of what a reasonably prudent person would have done under the same or similar circumstances. Under a theory of negligence, a defendant will be liable for the damages, or harm, reasonably foreseeable to occur based on their conduct. In environmental actions, that can include damages for cleaning up the property, the diminished property values, or for bodily injury caused by exposure.

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What must be done to bring a lawsuit to force a cleanup or recover for environmental damages?

A. The party, or parties, who are responsible for the contamination must be identified before a lawsuit can be brought for environmental damage. Often the federal or state governmental agency in charge of environmental enforcement will have identified parties potentially responsible for the contamination problem. If the government has not identified those responsible, an independent environmental investigation must be undertaken to identify those responsible. This entails consulting with environmental scientists to locate the source of the contaminant. For example, the source of a chemical, like trichloroethane (TCE), found in drinking water wells, can often be tracked back to its source using geological and hydrological scientific methods. Our firm has retained expert consultants with the scientific expertise needed to determine the source of contamination in environmental litigation involving contaminated drinking water.

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Once a source is isolated, what can be done?

A. Depending on the wrongdoer and their financial resources, the pollutants can often be removed through a remediation program (where the pollutants are removed from soil and groundwater to levels that are considered safe by the governmental environmental agencies). In addition, the landowner can be compensated for the diminution in the value of their property as a result of the contamination. Often the property will continue to have damages based on the "stigma" associated with the fact it was contaminated, or associated with, a contaminated site for which compensation can be awarded.

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If I suspect my groundwater or property may be contaminated, what should I do?

A. You should contact your local governmental agency in charge of handling environmental pollution for assistance. If you are using groundwater as a source of drinking water, that will include the local health department. You should also contact your state environmental agency, and/or the United States Environmental Protection Agency to report the problem. It would be advisable to contact a law firm with experience in environmental law if you feel that your property, or health, have been damaged as a result of the contamination or ingestion of contaminants. Our office would be available for consultation, and we can often recommend whom to contact in terms of state agencies. Once information regarding the nature and extent of environmental contamination is documented, we can assist you in evaluating the source of the contamination and determining whether a lawsuit against those responsible for damages is appropriate.

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What about toxic mold claims?

A. Mold is a naturally occurring growth that we are exposed to throughout our environment. Some molds, such as stachybottrus or aspragillous (among others) are classified as toxic molds because they contain substances that are toxic to humans and/or animals.

Over the last twenty years, construction techniques and concerns over energy efficiency have made homes, offices and other structures more airtight. The increased use of fireboard and other cellulose-based material in construction has provided a medium for mold to grow. When water leaks into a building through a pipe, soffet, windowsill, roof or otherwise, it can create an environment conducive for the growth of stachybottrus and other toxic molds. Documented exposure to toxic mold can cause adverse health consequences. Thus, if present, the mold needs to be removed and the property damage needs to be repaired. In extreme cases, toxic mold has been shown to cause lung damage in infants and those with impaired immune systems.

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How long do I have to bring an environmental claim?

A. All states have statutes of limitation which specify how long a person has to bring a claim for personal injury or property damage before it is time-barred. Given the length of time that can pass from the time a pollutant is put into the environment and when it is discovered, it is often very difficult to determine when a claim for contamination must be filed in order to be within the limitations period. For example, contamination of soil or groundwater by chemical solvents may occur years, or even decades, before it is discovered in someone's well water. In some states, the statute of limitations period is modified in environmental claims to allow for latent "discovery" of contamination beyond the limitations period that would otherwise apply. These "discovery" rules apply to "save" a claim from the expiration of the statute even if the contamination was actually present for longer than the statute of limitations would otherwise allow. Generally, the discovery rules only apply if, prior to the expiration of the statute of limitations, the contamination was unknown or undiscovered by the plaintiff. Other states do not have "discovery" rules and would bar claims based on undiscovered releases of hazardous substances into the environment that occurred years ago, because the ordinary statute of limitations for injury to person or property would have expired.

In 1986, Congress attempted to remedy this situation by including a uniform discovery rule in the CERCLA federal environmental statute relating to cleanup of hazardous substances. The federal "discovery" rule applies to state law claims brought with federal actions for cleanup in federal court. It does not apply to all types of environmental cases. Therefore, if you believe you have an environmental claim, you should contact a law firm with experience in this area immediately to best avoid having the statute of limitations expire.

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How long does it take to prosecute an environmental law action?

A. Environmental law cases often involve complex legal and scientific issues and can take several years to work their way through the courts. Because of the complex nature of contamination problems, expert consultants in environmental science, geology, hydrology, or related fields are often required. The investigations of these experts are often time-consuming.

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