Key Defensive Strategies to Common Law Claims (State Action Levels)

Michael Goldman
Connect with me
An accomplished litigator representing his clients in complex environmental disputes throughout the country.

Even if contamination is present, plaintiffs might still have difficulty in proving causation if the contaminants are not present in concentrations above state action levels.  The state action level is the point at which the concentration of constituents in the native soil or water requires corrective action.[1]  Exceeding an action level warrants further assessment of the site, but does not mandate that site cleanup be undertaken.[2] Action levels are simply levels which signal the need for additional assessment.[3]

Don’t be afraid to give up the good to go for the great.” John D. Rockefeller

In Taco Cabana Inc. v. Exxon Corporation, the purchaser of commercial property sued the former lessee for trespass and negligence claiming that it failed to remediate property it previously operated as a gas station.[4]  The San Antonio Court of Appeals held that the plaintiff failed to establish causation as the evidence did not establish that the soil contained contaminants that exceeded state levels which would have triggered a duty to take corrective action.[5]  The court reasoned that “to the extent that any common law duties regarding removal of contamination existed, such duties ha[d] been displaced by the Texas Water Code . . . because the Legislature had delegated to the TWC the task of determining appropriate cleanup standards.”[6]

This line of reasoning has similarly been applied by other courts and parties with slight variations.[7] For example, in Scoma v. Chesapeake Energy Corp., the defendant moved for summary judgment on plaintiff’s nuisance, trespass and negligence claims because test results were below Texas’s safe drinking water levels.[8] In Harris v. Devon Energy Production Company, L.P., the defendants moved to dismiss because recent test results showed that the drinking water was no longer unsafe for human consumption, even though the test results showed the opposite when the lawsuit was initially filed.[9]

It should be noted that in Z.A.O., Inc. v. Yarbrough Drive Center Joint Venture, the court implicitly held that a No-Further Action letter might not bar a plaintiff’s claims if the use of the property later changes.[10]  In Ronald Holland’s A-Plus Transmission & Automotive, Inc. v. E-Z Mart Stores, Inc., the court held that a No-Further Action letter does not exonerate a neighboring defendant for their liability for contamination, in excess of state action levels, that migrated from their property.[11]  Finally, in Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, the court disagreed that a plaintiff may never prevail against a defendant for contamination without the ongoing the presence of constituents exceeding state action levels.[12]  The court distinguished the Taco Cabana and Yarbrough cases because each did not address whether the plaintiffs could recover in negligence for lost market value due to the stigma resulting from former contamination via constituents exceeding state action levels.[13] The court also distinguished the EZ Mart case, because the contaminants exceeded state action levels at one time on the plaintiff’s property, even though they no longer did so.[14] 

Key Points

  • Plaintiffs might still have difficulty in proving causation if the contaminants are not present in concentrations above state action levels. 
  • The state action level is the point at which the concentration of constituents in the native soil or water requires corrective action.  
  • Exceeding an action level warrants further assessment of the site, but does not mandate that site cleanup be undertaken. 
  • Action levels are simply levels which signal the need for additional assessment.
Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link.  We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.
 

[1] Ronald Holland’s A-Plus Transmission & Automotive, Inc. v. E-Z Mart Stores, Inc., 184 S.W.3d 749, 752 n.3 (Tex. App.—San Antonio 2005, no pet.).

[2] Id.

[3] Id.

[4] Taco Cabana, Inc. v. Exxon Corp., 5 S.W.3d 773, 779–780 (Tex. App.—San Antonio 1999, pet. denied).

[5] Id. at 780.

[6] Id.

[7] See e.g., Abundiz v. Explorer Pipeline Co., 2003 WL 23096018, at *9 (N.D. Tex. 2003); Z.A.O., Inc. v. Yarbrough Drive Center Joint Venture, 50 S.W.3d 531, 543-44 (Tex. App.—El Paso 2001, no writ).

[8] Scoma v. Chesapeake Energy Corp., No. 3:10-cv-01385 (N.D. Tex., July 15, 2010) (Doc. 42, pages 25-26).

[9] Harris v. Devon Energy Production Company, L.P., No. 4:10-cv-00708 (E.D. Tex., Dec. 15, 2010) (Doc. 56).

[10] Z.A.O., Inc., 50 S.W.3d at 537.

[11] Ronald Holland’s A-Plus Transmission & Automotive, Inc., 184 S.W.3d at 756.

[12] Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 389 S.W.3d 583, 591 (Tex. App.—Houston [14th Dist.] 2012, rev’d 443 S.W.3d 820 (Tex. 2014).

[13] Id.

[14] Id. at 591-92.

Be the first to comment!
Post a Comment