In order to prove causation, the plaintiff oftentimes needs to show that the contaminants are 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.
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. 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.
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.” This line of reasoning has similarly been applied by other courts and parties with slight variations.
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