Liability Theories in Contaminated Groundwater Litigation

Disputes regarding contaminated sites have given rise to an explosion of federal and state court litigation. Congress enacted the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §§6901 et seq. , as a contemplated "cradle to grave" regulatory scheme for solid waste, and passed the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§9601 et seq. , to address the investigation and remediation of contaminated sites. RCRA and CERCLA each contemplate a strict, joint and several regulatory liability scheme to address sites that have required billions of dollars to investigate and remediate, and which will require additional billions in order to complete the job. Federal and state law cases involving groundwater contamination cases have presented special challenges to litigants and the Courts. Determining the source of groundwater contamination is often a matter of technical dispute, particularly in the case of commingled plumes or older plumes where original point source locations can no longer be located or where there has been a significant amount of contaminant degradation over time. Contaminated plumes derived in whole or in part from potential continuing sources can present difficult remedy selection issues and uncertainty regarding future cost obligations. While a variety of federal and state law theories of liability are available to address groundwater contamination, each presents certain benefits and limitations. For example, CERCLA claims can cover a wide spectrum of potentially responsible parties and are based on strict liability; however, CERCLA excludes petroleum from the scope of its liability scheme and limits recovery to necessary response costs consistent with the National Contingency Plan. RCRA claims can include petroleum contamination, but cannot seek recovery of past costs. Common law theories such as nuisance, trespass and negligence can permit recovery of a broader scope of potential damages and provide for joint and several liability, but they are not based on notions of strict liability and sometimes present difficult statute of limitations problems. This article identifies federal and California state law liability theories addressing responsibility for groundwater contamination, and reviews the elements of liability, potential limitations on available relief, and recent case law developments under these theories.