Punitives May Come to Those Who Wait
| Publication year | 2021 |
| Author | Written by Bryan Barnhart |
Written by Bryan Barnhart1
This article was previously published by the California Water Law Journal, an online water blog associated with University of the Pacific, McGeorge School of Law, and is reprinted with permission. The original article is available at waterlawjournal.com
California's courts routinely impose punitive damages awards against polluters that knowingly release hazardous substances which contaminate groundwater. But California has been slow to follow the nationwide trend favoring punitive damages awards against polluters that knowingly fail to remediate their past hazardous releases before those releases spread and cause greater harm.
While California's punitive damages jurisprudence has helped to deter potential polluters from releasing hazardous substances in the first place, therefore, it has not deterred the culpable misconduct which actually causes the most harm to groundwater contamination plaintiffs—i.e., it has not punished polluters that sit idly by as their discrete hazardous substance releases balloon into groundwater contamination plumes which migrate offsite and pollute neighboring properties and drinking water wells.
On May 28, 2021, however, California's courts took a big step towards creating a punitive damages jurisprudence that can deter contamination of the State's groundwater by punishing polluters that unjustifiably delay their cleanups. The State's influential TCP Cases Coordination Proceeding Court issued an Order authorizing a claim for punitive damages against a polluter that failed to take "steps to investigate or remediate" hazardous substance releases before those releases reached groundwater and migrated offsite to contaminate a nearby municipal drinking water well.
The TCP Cases Court issued its May 28th Order in City of Fresno v. Shell Oil Company, et al.2, one of dozens of lawsuits which have been coordinated for pre-trial proceedings in San Bernardino County's Superior Court. The TCP Cases plaintiffs are public agencies seeking remedies for contamination of groundwater and drinking water wells caused by 1,2,3-trichloropropame ("TCP"), a hazardous impurity in certain pesticides. Plaintiff City of Fresno asserts punitive damages claims against the nation's largest manufacturers and distributors of TCP-containing pesticides, including Occidental Chemical Corporation and Occidental Petroleum Corporation (collectively, "Occidental").
[Page 38]
Fresno's punitive damages claim against Occidental is based on harm to the City's drinking water supplies caused by Occidental's failure to investigate and clean up groundwater contamination caused by Occidental's releases of a TCP-containing pesticide, Telone II, at Occidental's retail outlet in Fresno, OxyChem Fresno. From 1975 through 1982, Occidental regularly spilled Telone 11 onto soil at its OxyChem Fresno facility. By 1987, Occidental had learned that its Telone II spills had percolated to groundwater underlying its OxyChem Fresno facility and migrated offsite, forming a groundwater-contamination plume which already had contaminated one neighbor's well.
Yet Occidental did nothing to clean up its Telone II contamination at OxyChem Fresno. Nor did Occidental attempt to contain or remediate the ever-growing groundwater contamination plume that continued to migrate beyond OxyChem Fresno's boundaries and extend toward downgradient wells. Eventually, TCP from OxyChem Fresno's Telone II-contamination plume reached one of Fresno's municipal drinking water wells, rendering the well's water unsafe for human consumption, and forcing the City to shut down the well to protect the public.
In its May 28th Order, the TCP Cases Court joined the nationwide trend favoring the use of punitive damages to deter polluters from delaying cleanups, and held that a reasonable jury could find that Occidental's knowing failure to timely "investigate and remediate" its groundwater contamination plume warrants an award of punitive damages.
The purpose of punitive damages is to deter culpable misconduct which causes harm.3 Courts have explained, "[w]hile punitive damages are generally found to apply only in cases of intentional harm," they also may be imposed "for unintentional conduct evidencing a "'conscious disregard of the rights and safety of others.'"4 For example, "a man wildly fires a gun into a crowd. By sheer chance, no one is injured and the only damage is to a $10 pair of glasses. A jury reasonably could find only $10 in compensatory damages, but thousands of dollars in punitive damages to teach a duty of care. We would allow a jury to impose substantial punitive damages in order to discourage future bad acts."5
In environmental contamination cases, "punitive damages may be imposed for business activities, harmful to others, carried out in disregard of the corporation's societal obligations. In brief, the issue is whether the defendant has damaged the [person or] property of plaintiff by conduct evidencing an 'I don't give a damn' attitude."6
It is well and widely established that punitive damages may be awarded to deter culpable misconduct which causes hazardous substances to contaminate groundwater.7
The question is: which contamination-causing misconduct should courts use punitive damages to deter? Should courts only award punitive damages to deter potential polluters from releasing hazardous substances in the first place? Or should polluters also be punished for failing to take responsibility for investigating and cleaning up known pollution caused by past releases before those releases spread and cause additional harm?
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