Morris Manning & Martin, LLP

Private Remedies for Violation of Environmental Laws

The proliferation of environmental catastrophies and the heightened public awareness regarding environmental concerns have engendered a sharp rise in environmental litigation. Almost daily, the media reports an oil spill, a chemical leak, the destruction of wetlands, dumping of medical waste, asbestos contamination, or a controversy regarding the siting of a landfill.

These issues are not of purely academic concern, since the environmental laws impose substantial liability upon potentially responsible parties (known as "PRP's") for clean-up costs. These costs can be staggering, often eclipsing the value of the contaminated property or collateral. Potentially responsible parties include current owners or operators of a facility, past owners or operators who disposed of hazardous substances on the property and generators of hazardous substances. As a result, the environmental laws have a drastic effect on countless business transactions.

In many of the more publicized cases, the United States Environmental Protection Agency (EPA) or the Georgia Environmental Protection Division (GEPD) dons the "white hat" and initiates action against the potentially responsible parties to require clean-up of contaminated sites or to obtain reimbursement for clean-up costs. However, the environmental laws also give private parties the right to compel other responsible parties to conduct clean-ups and to recover clean-up costs from parties who caused or contributed to the contamination.

Under two principal federal statutes, private parties may bring lawsuits against responsible parties for clean-up costs provided the EPA or GEPD are not already pursuing clean-up remedies. The Resource Conservation and Recovery Act of 1976 ("RCRA") regulates all persons and businesses which generate, transport, treat or dispose of hazardous substances. The Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") governs the clean-up of hazardous substances released at abandoned sites. Both statutes authorize private suits against persons or entities responsible for releasing hazardous substances.

These statutes authorize the award of costs of litigation, including attorneys fees. However, recovery under the federal and state environmental laws is limited to costs associated with the clean-up. Damage to real property, personal injury and other consequential damages can only be recovered under state common law, which is discussed below.

Private suits are usually one of two types: suits to compel enforcement of the environmental laws, or suits against other responsible parties to recover clean-up costs incurred by the party bringing suit. While the party initiating the suit may be liable to the EPA or EPD for clean-up costs, he has a right to obtain contribution, and even complete reimbursement, from other responsible parties. For example, under CERCLA, a current property owner may bring suit to force a tenant to clean up hazardous substances disposed of on the property, or may sue the tenant for the clean-up costs.

CERCLA provisions may be particularly important when a third party (such as a tenant or a neighboring property owner) has disposed of small quantities of hazardous substances on one's property. EPA and GEPD may be unaware of the contamination, or because of the small quantity, lack the resources to fully investigate the matter. In these circumstances, CERCLA provides a private party with a means of compelling the clean-up or to obtain reimbursement of costs he has incurred to clean up the property. Courts have held that a private party may invoke CERCLA for any release of hazardous substances which violates any "applicable state or federal standard, no matter how stringent." Amoco Oil Company v. Borden, Inc., 889 F. 2d. 664 (5th Cir., 1989).

Federal and state environmental laws like RCRA and CERCIA are not the only remedies available to private parties confronted by hazardous contamination. Lawsuits against responsible parties may be brought under traditional common law theories, such as waste, negligence, trespass, or nuisance, or breach of contract. All damages caused by the wrongful pollution, such as diminished value of real property, property damage and personal injury, together with attorneys fees and punitive damages may be recovered under these common law theories.

The heightened public awareness of environmental concerns will signal a dramatic increase in the number of private actions as we enter the decade of the 1990’s. Armed with the "lethal weapons" provided by federal, state and common law, private parties now have the wherewithal to force polluters to "clean up their act".