Colorado Common Law Actions to Abate the Mishandling of Hazardous Materials
| Publication year | 1987 |
| Pages | 2191 |
| Citation | Vol. 15 No. 9 Pg. 2191 |
1987, December, Pg. 2191. Colorado Common Law Actions to Abate The Mishandling of Hazardous Materials
In this age of Superfund(fn1) and its many statutory cousins, lawyers and clients faced with environmental problems are often surprised to find that federal and state regulatory enforcement programs can be slow to generate results. This is an increasingly common problem for a landowner whose property is adjacent to a facility or cleanup site which is not a high priority for enforcement action. For a variety of reasons, state and federal regulatory programs may not provide such a landowner the desired relief for many months or even years. In the interim, the landowner is exposed to the risks of further mishaps on the neighboring property, resulting in the continued contamination or threat of contamination of the landowner's own property.
The hazardous materials handling activities of a neighboring landowner or lessee can result in a variety of invasions of the innocent neighbor's rights. A spill of liquids on neighboring ground can migrate to a neighbor's property, causing soil and groundwater contamination. Noxious fumes from volatile substances can contaminate the air above a neighbor's property, exposing the neighbor and its employees, family or business invitees to unknown hazards. A continued lack of proper management of hazardous substances on neighboring property may pose an unacceptable risk of harm. Each of these types of harm or threat of harm may form the basis for a common law action in Colorado to abate the conditions of concern.
While statutory claims should not be ignored simply because relief is sometimes slow in coming, a number of causes of action under Colorado common law may provide a basis for obtaining injunctive relief more quickly. If possible, the common law actions reviewed in this article should be brought in conjunction with statutory causes of action. It should be noted that federal environmental statutes have generally been held not to preempt state common law causes of action.(fn2) Indeed, the existence of a statutory claim for injunctive relief can actually ease the plaintiffs burden of proof in pursuing a common law action simultaneously.(fn3)
Liability for private nuisance in Colorado is based on conduct constituting an intentional or negligent invasion of a person's interest, or conduct that is so dangerous to life or property or so abnormal or out of place in its surroundings as to fall within the principle of strict liability.(fn4) A repetitious course of conduct in the operation of a business or facility which results in such an invasion of another's interest is a private nuisance in Colorado.(fn5)
In a private nuisance action, the relative rights of the parties control the outcome. The question presented to the court is whether the defendant's use of property in the manner complained of is reasonable, in accordance with the relative rights of the plaintiff. The defendant's liability for private nuisance rests on the duty the defendant owes as an occupier of land to prevent conditions on the land, particularly those created by the defendant, from injuring others.(fn6) In order to support liability for private nuisance, the plaintiff must demonstrate to the court that the defendant's interference with the plaintiffs use and enjoyment of the property is both substantial(fn7) and unreasonable.(fn8)
The specific facts of any given instance of the mishandling of hazardous materials will dictate whether a cause of action in private nuisance will lie. The early Colorado private nuisance cases often involved the pollution of streams.(fn9) Noxious odors have also supported claims of private nuisance in Colorado.(fn10) The Colorado courts in these early cases had little difficulty enjoining pollution which constituted a nuisance.
Colorado courts have been reluctant to enjoin an activity that merely threatened to invade another's interests.(fn11) This reluctance has not been shared by all other states. Some...
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