Environmental Law
| Publication year | 2021 |
Environmental Law
Travis M. Trimble
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In 2020,1 the United States Court of Appeals for the Eleventh Circuit held that a provision of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)2 that tolled statutes of limitation in state law claims did not apply to a claim brought under the Price-Anderson Act (PAA),3 providing an exclusive federal cause of action for harm resulting from exposure to radioactive materials, even though the PAA "borrows" all substantive law governing liability, including a relevant statute of limitation, from the law of the state where the harm occurred.4 The United States District Court for the Northern District of Georgia found that an owner of land from which an unpermitted discharge of dredged or fill material had occurred in violation of § 404 of the Clean Water Act (CWA)5 could not be liable under the CWA for the discharge where the owner played no active role in the discharge.6 The court also decided that the diligent prosecution provision of the CWA is a non-jurisdictional limitation on CWA citizen suits that may be raised by a defendant in a motion to dismiss for failure to state a claim.7 Finally, the court granted motions for partial judgment on the pleadings to defendants in two cases challenging the Army Corps of Engineers' updated Master Manual, which governs its operation of its reservoirs in
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the Apalachicola-Chattahoochee-Flint River Basin and which allocates more water from Lake Lanier in North Georgia to the water-supply needs of metro Atlanta.8
In Pinares v. United Technologies Corp.,9 the Eleventh Circuit held that CERCLA's statute of limitations tolling provision10 did not apply to claims brought under the federal PAA for injury resulting from the plaintiffs exposure to nuclear materials.11 CERCLA's tolling provision applies only to claims arising under state law, and therefore, the court held, it did not toll the limitations period for an action under the PAA, even though the PAA by its terms borrows all of its substantive provisions establishing liability, including its statute of limitations, from the law of the state where the injury occurred.12
In 1996, plaintiff Cynthia Santiago moved with her parents to a residential subdivision called the Acreage in Palm Beach County, Florida, when Santiago was four months old.13 The defendant owned a tract of land ten miles away from the Acreage where it conducted research and testing that over time contaminated the soil with radioactive waste.14 Between 1993 and 2000, the defendant excavated thousands of tons of the contaminated soil, which was eventually sold and used as fill material for the construction of the Acreage. In 2009, Santiago was diagnosed with a type of brain cancer. Her doctors discovered the radioactive isotope thorium-230, which the plaintiffs alleged was present in the fill material and in water runoff from the defendant's property, in Santiago's spine at levels hundreds of times above a normal background amount. Santiago and her parents filed suit against the defendant in 2014, just after she turned eighteen. She testified in her deposition that she was unaware of radioactive contamination at the Acreage until 2014. She died from her cancer in 2016.15
Santiago's lawsuit asserted three claims: wrongful death resulting from negligence under Florida law, wrongful death from trespass under
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Florida law, and damages under the PAA.16 An action under the PAA is known as a "public liability action."17
The PAA directs the district courts to "borrow" the substantive rules of decision for a public liability action from the law of the state where the injury occurred.18 The court also determined that this borrowing included the relevant statute of limitation, which in this case the court said was four years from the date the action accrued,19 which was the date of Santiago's cancer diagnosis: November 27, 2009. It was undisputed that Santiago was not aware of radioactive contamination at the Acreage until 2014, and she filed her lawsuit on November 7, 2014.20 However, the district court found that her causes of action accrued on November 27, 2009, the date of her cancer diagnosis, and therefore they were barred by the four-year statute of limitation.21
On appeal, the plaintiffs argued that the four-year limitation period was tolled by § 9658 of CERCLA.22 For claims arising under a state's law for injuries or damage caused by hazardous substances, pollutants, or contaminants, § 9658 mandates a commencement date for the running of the applicable state statute of limitation, that is the date Santiago
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discovered, or should have discovered, that her injury was caused by the hazardous substance, rather than an injury-in-fact date, as was the case in the applicable Florida limitation period.23 Additionally, if the plaintiff was a minor at the time of injury, CERCLA mandates a commencement date for the state-law claim when the plaintiff becomes an adult.24 The plaintiffs argued that under either tolling provision, Santiago's claim was timely.25
The court held that the Santiagos' claims were barred by Florida's four-year statute of limitation.26 The court explained that the CERCLA tolling provision, by its plain terms, applied only to actions brought under state law, and that a public liability action for injury done by radioactive contamination was exclusively a federal claim to which the CERCLA provision did not apply.27 Furthermore, the PAA is the only cause of action available to a plaintiff alleging injury caused by radiation. Therefore, the Plaintiffs' state-law claims alleging that Santiago's cancer was caused by thorium-230 were transformed into a "public liability action" under the PAA, to which the CERCLA tolling provision did not apply.28
In Lambeth v. Three Lakes Corp.,29 the United States District Court for the Northern District of Georgia, in a novel issue for the Eleventh Circuit,30 concluded that the owner of land from which a discharge of dredged or fill material occurred could not be liable under § 404 of the Clean Water Act31 for failure to obtain a permit where the owner played no active part in the work that resulted in the discharge.32
Plaintiffs own land and live adjacent to Lower Lake Forrest (LLF) in Fulton County, Georgia. Defendant Three Lakes Corporation (TLC) is a for-profit corporation that was created to hold title to and maintain three lakes for the benefit of residents, including LLF.33 In that capacity, TLC
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was also a part-owner of the LLF Dam. The City of Atlanta and the City of Sandy Springs (City Defendants)34 were also part-owners of the dam because they owned Lake Forest Drive.35
In 2009, the Georgia Environmental Protection Division determined that the LLF Dam was a "high-hazard" dam because of the risks a breach of the dam posed.36 In 2014, TLC learned that the City Defendants intended to drain LLF in order to repair the LLF Dam. The City Defendants provided TLC with its work plans, and in 2015 contractors working for the City Defendants began work to drain LLF.37 At that point, no defendant had obtained a § 404 permit for the work. TLC "participated in the decisions about what to do" with the LLF Dam but did not have "veto power" over the plans.38 On March 30, 2016, the City Defendants' contractors, using heavy equipment, began excavating the LLF Dam and dredging LLF, breaching the dam and discharging sediment-laden water downstream.39 TLC acknowledged that at this time the City Defendants did not have the right to drain LLF without obtaining a § 404 permit.40
The City Defendants obtained an after-the-fact Nationwide Permit under § 404 from the Army Corps of Engineers for the dam repairs.41 The permit stated that the area around the dam was "stabilized."42 The permit did not include TLC as a permitted party, and TLC never sought to obtain a permit for itself or to become covered by the City Defendants' permit. The dam repair project was never completed and LLF was never restored. The sediment fill produced by the work in 2016 remained in place at the time of the Court's decision.43
In June 2019, the Plaintiffs filed suit against TLC and City Defendants under the citizen-suit provision of the CWA44 for the defendants' failure to obtain a permit under § 404 for the discharge of dredged or fill material into a water of the United States in connection with the LLF Dam work.45
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The court granted TLC's motion for summary judgment.46 The court first concluded that the Plaintiffs' lawsuit alleged "ongoing violations" of the CWA,47 rejecting TLC's argument that there were no ongoing violations because the Corps had determined in 2016 that the area was "stabilized."48 The court explained that TLC did not explain what "stabilized" meant in the context of this case.49 In any event, the court found that the Plaintiffs alleged an ongoing violation of the CWA because they presented evidence that, "the discharged pollutant remains and has not been removed."50
However, the court concluded second that TLC could not be liable for violating the CWA because it was not a "discharger" under the CWA.51 The court noted that the CWA "imposes liability [for failure to obtain the appropriate permit] on both the party who actually performed the work" causing the discharge "and on the party with responsibility for or control over the work."52 The parties agreed that the City Defendants, through their contractors, actually performed the work.53 "As such, the court's sole determination is if Defendant TLC is 'responsible for' or 'controlled' the work."54
The material facts on this question were not disputed:
TLC (1) TLC owns the lake and the portion of the dam where the work and CWA violations occurred; (2) admits that it was aware of and participated in the decision making regarding the work which resulted in violations of the CWA; (3) admits that as a dam owner...
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