This week, the Supreme Court of the State of Montana took a look at statute of limitations issues in the context of state law claims for trespass and nuisance in contamination cases in the case of Burley v. Burlington Northern & Santa Fe Railway Co., 2012 MT 28 (Feb. 7, 2012).  The issue, which was certified to the Court from the United States District Court for the District of Montana was the following:

With respect to the continuing tort doctrine, does Montana law . . . toll the statute of limitations for property damage claims of nuisance and/or trespass resulting from contamination which has stabilized, continues to migrate, and is not readily or easily abatable?

For anyone who has litigated in the environmental arena, this is a question that is raised time and time again and usually without a clear resolution, and federal and state courts have taken a variety of approaches in addressing limitations defenses in contamination claims, something that the Montana Court acknowledged and recognized from the start of the opinion.

The facts of Burley are rather mundane as environmental cases go.  The Burleys own property near a shuttered BNSF rail yard on which releases of hazardous substances contaminated the soil and groundwater with hydrocarbons and various toxic solvents.  While the rail yard has been closed since 1987 and thus no additional releases are occurring, the groundwater flowing from the property continues to contain contaminants, although at stable levels.  BNSF is remediating through monitored natural attenuation – that is, BNSF is allowing natural processes to clean up the contamination.  Although the Plaintiffs, consisting of Burleys and the other landowners whose water is affected, learned of this contamination in 1992, it was not until 2007 when they and other landowners brought suit against BNSF under a variety of legal theories, including nuisance and trespass.  Because of the 15 year gap between learning of the contamination and the filing of the suit, BNSF moved for summary judgment based upon the statute of limitations, arguing that the statute of limitations began to run in 1992.  The Plaintiffs countered that since the contamination was “continuing,” the limitations period had not yet run.

Here in Pennsylvania where we practice, the trend of the case law is to classify soil and groundwater contamination as a permanent change rather than a continuing trespass, though there may be some room for a plaintiff to argue otherwise depending on the type of damages being sought.  (If the plaintiff seeks damages for diminution of property value, the trespass will almost certainly be classified as permanent.  On the other hand, if the plaintiff seeks damages for separate but recurring injuries, such as the loss of a years’ crops, then there may be an argument that the trespass is a continuing one.)  F.P. Woll & Co. v. Fifth & Mitchell St. Corp., 326 F. App’x 658, 662 (3d Cir. 2009); Dombrowski v. Gould Electronics, Inc., 954 F. Supp. 1006, 1011 (M.D. Pa. 1996); Piccolini v. Simon’s Wrecking, 686 F. Supp. 1063, 1076 (M.D. Pa. 1988).

But, as with many things, it seems that they do it different out west.  The Court saw two potential options. First was the position taken by courts in Texas, Alabama and Kansas that the statute of limitations begins to run when the polluter stops dumping.  In other words, courts in the heartland did not show a lot of love for plaintiffs who delayed filing suit.  The second option, one adopted by courts in Colorado, California and Washington, was, in some respects, just as heartless:  the statute of limitations would be tolled until “every drop of pollution” was removed from the plaintiff’s property.

The Montana Court saw a middle ground and took it.  In a well-reasoned but not overly dense opinion relying on prior Montana decisions, it announced the following rule to be applied in continuing migration cases:

Contamination that has stabilized in terms of quantity or concentration, but continues to migrate will toll the statute of limitations until the harm no longer reasonably can be abated.  The injury should be classified as permanent once a determination has been made that the nuisance no longer reasonably can be abated.  The limitations period begins to run when abatement is not reasonable or complete abatement cannot be achieved, and a permanent injury exists.

What does this mean in practical terms, at least in Montana?  For one thing, it means that the statute does not begin to run if there are continuing releases, or if the extent of the contamination fluctuates in some way such that the potential future damage is unknown.  And it probably means more trials, because the overriding factor in the determination of whether an injury is permanent is whether reasonable abatement activities can prevent or reduce the migration of contaminants onto the plaintiff’s property, and this, the Court held, is an issue for the trial of fact.  The fact-finder must take into consideration the ease with which the harm can be abated, the type of property affected, the severity of the contamination, the length of time necessary to remedy the pollution, the capability of the parties to perform the abatement and the cost of doing so.  Importantly, that the cost to abate might be more than the value of the contaminated property is not dispositive in determining whether the injury is a permanent one, because such a restriction would result in disincentives to remediation, and grant a somewhat perverse “reward” in cases where the pollution was greatest and thus the clean-up most costly.  Indeed, the Court ended its opinion philosophically, emphasizing that “[a] tortfeasor who impairs the property rights of another should not prevail simply because its pollution or interference with another’s property takes a lengthy amount of time or a large amount of money to abate.” 

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