Montana Supreme Ct Allows Lawsuit To Proceed For 25 Year Old Plume

In what may be one of the more important common law pollution cases of the past few years, the Montana Supreme Court ruled that property owners may proceed with lawsuit alleging damages from contamination that has migrated from a railyard that had operated by Burlington Northern & Santa Fe Railway Company and its predecessors from the late 19th century until 1987. Burley v BNSF, 2012 Mont. LEXIS 31 (Mont. 2/7/12).

The state of Montana filed a lawsuit against BNSF in 1988 which was resolved by the entry of a partial consent decree in 1990 requiring BNSF to implement remedial actions. The state DEQ discussed sampling results with residents in 1992. Sometime thereafter, BNSF decided to implement a remedy consisting of monitored natural attenuation. Residents near the former railyard filed separate lawsuits in 2007 and 2008 seeking damages for the groundwater contamination that had migrated to their properties. Some residences also had vapor intrusion concerns.

BNSF filed a motion for summary judgment in federal district court arguing the claims were barred by statute of limitations. The magistrate judge concluded that the contamination had reached the plaintiffs’ properties in the 1990s and that the plaintiffs had been aware of the contamination. She recommended that the district court grant BNSF’s motion.

The plaintiffs objected to the magistrate’s recommendation, claiming she had improperly declined to apply the continuing tort exception. The court district court declined to adopt the magistrate’s recommendation, based on the reasoning of a state court that had dismissed a statute of limitations claim on similar facts. The district court then asked the Montana Supreme Court to determine if the continuing torts doctrine should apply to the plaintiffs’ claims.

In a well-written opinion, the Supreme Court reviewed the leading caselaw on this issue. The court explained that the cases fell into two camps. The first group holds that the continuing tort stops and the applicable statute of limitations begins to run when the polluting activities ceased. The second line of cases focuses on whether the continuing migration of the contamination. Under this analysis, the tort will continue until the pollution is abated. In nuisance actions, a temporary and continuing nuisance will be one that is reasonably abatable whereas contamination that cannot be reasonably abatable will be considered a permanent nuisance at which time the statute of limitations will be deemed to have begun.

Adopting the reasoning of the Restatement (Second) of Torts, the court then said an abatable condition is one that could be accomplished without unreasonable hardship or expense. The court acknowledged that there was a tension between economic interest and environmental protection that courts had to carefully navigate. Finding a condition was a permanent nuisance would discourage tortfeasors from remediating contamination, thereby undercutting the philosophy of tort law to put an injured person as closely as possible to its pre-injury condition. The court said that a tortfeasor who impairs the property rights of another should not avoid liability for its contamination because the remediation takes a long time to complete or is costly. On the other hand, the court said, tort law does not necessarily require complete removal of the contamination. Thus, the court said judges should evaluate all factors such as ease of abating the harm, the abatement cost, the type of property, the severity of the contamination and the length of time necessary to remediate the contamination when determining if a particular harm was reasonably abatable standard.

In this case, the plume had stabilized and the contaminant concentrations had begun to decline. One has to wonder if this case reflects the potential downside of natural attenuation remedies that are rarely considered when a responsible party is selecting a remedy. While natural attenuation was less costly, did it prove more expensive in the long-run? In other words, would BNSF have been subject to toxic tort liability if it had used a more aggressive active groundwater treatment system than might have gained hydraulic control over the plume and prevent migration onto the plaintiffs’ property or reduced concentration levels more quickly and undercut the basis for the court to find that there was continuing tort? The district court will now have to apply the doctrine to the facts of this case.

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