ELR Citation: ELR 21385
No(s). 87-1338-T (D. Kan. Mar 6, 1991)

The court holds that plaintiffs' state law claims, which allege contamination of groundwater with trichloroethylene (TCE) by a neighboring manufacturer, are timely under the Kansas statute of limitations by virtue of §309 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and that §309 is a valid enactment under the Commerce Clause. Landowners and their adult children sued an aircraft manufacturer seeking to recover damages for the alleged contamination of the groundwater supply with TCE. Defendant aircraft manufacturer moved for partial summary judgment claiming that plaintiffs' pendent state claims are barred by the Kansas statute of limitations and that the application of a contrary federal commencement statute is an unconstitutional extension of the commerce power and a violation of the Tenth Amendment.

The court first notes that although plaintiffs have not posed their complaint as either seeking recovery for temporary or permanent damages, the facts must support the choice they could have made and the court thus assumes that plaintiffs' action is for recovery of permanent damages. In Kansas, an action for permanent damages to land generally accrues when the fact of a substantial injury becomes reasonably ascertainable, but in no event more than 10 years beyond the time of the act giving rise to the cause of action. Kansas case law further defines the "act" that gives rise to the cause of action as the act of the plaintiff's exposure to the injury inducing element, not the defendant's initial actions in a sequence of events leading to the plaintiff's injury. However, the case law also provides that a cause of action does not accrue until a substantial injury exists or is discoverable. Thus, the court holds that in an action for permanent damages to real property caused by harmful substances, the Kansas 10-year limitation period begins to run only when the plaintiff's property has been exposed to quantities of that substance sufficient to produce a substantial injury, regardless of whether that injury first develops or is discovered after the exposure to the substance.

Applying that holding to this case, the court holds that the facts presented on defendant's motion for summary judgment are inadequate to allow a judicial determination of the date on which the wrongful act first occurred, making summary judgment inappropriate. Because an injury is "substantial" only to the extent that it is sufficient to support the particular cause of action, the amount of TCE in plaintiffs' groundwater must have been in amounts that would have supported an action for permanent and not simply temporary damages. If the jury were to find that the amount of TCE in plaintiffs' groundwater before June 23, 1977, the date 10 years before plaintiffs filed this action, was insufficient to support the causes of action alleged, then plaintiffs' complaint would have been filed within the 10-year limitation period prescribed in Kansas. If the jury made such a finding, the only limitation on plaintiffs' action would be the two-year provision in Kansas, which permits the filing of actions within two years of the date of the discovery of the injury. Because no plaintiffs had knowledge of the contamination until July 14, 1985, at the earliest, plaintiffs' complaint would be timely under Kansas law.

The court next rejects defendant's constitutional challenges to applying the federal commencement date provision in CERCLA to plaintiffs' state claims. The court first notes that CERCLA §309(b)(4) effectively creates a federally mandated discovery rule for the accrual of state law claims involving releases of hazardous substances that cause or contribute to personal injury or property damage. Thus, despite the arguable untimeliness of plaintiffs' state claims under Kansas law, application of the federal commencement date to the Kansas two-year limitations period renders the state claims timely. The court holds that the U.S. Supreme Court made clear in Garcia v. San Antonio Metro. Transit Auth., 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985), that the Tenth Amendment provides no standard by which to determine whether CERCLA §309 deprives states of a "core" or "essential" attribute of state sovereignty. Because defendant has offered nothing to suggest a defect in the political process underlying the enactment of §309, this challenge is rejected. The court further holds that §309 represents a valid exercise of the commerce power of Congress, and absent constitutional infirmity in the statute, federal law requires that the court find plaintiffs' state claims to be timely under the two-year limitation in Kansas, Congress retains the authority under the Commerce Clause to enact legislation regulating activities that result in the release of hazardous substances such as TCE, and §309 is part of a comprehensive regulatory scheme that envisions the continued viability of existing state remedies for environmental injuries, while ensuring that the injured parties do not forfeit these claims to restrictive state limitation statutes. Thus, it will be necessary at trial for plaintiffs to establish the timeliness of their claims under Kansas law.

The court holds that plaintiff children's claims for litigation expenses, to the extent that they are within the meaning of "necessary costs" authorized under CERCLA §107(a)(4)(B), are recoverable at trial. The court notes that it can conceive of no surer method to defeat CERCLA's provision for private party causes of action than to require private parties to shoulder the financial burden of the very litigation that is necessary to recover response costs. The court holds that plaintiff children's claim for groundwater monitoring and investigatory expenses are potentially recoverable under CERCLA, since the court determines that plaintiffs' groundwater testing was a removal action under §101(23). Moreover, these testing costs are recoverable even though taken as additional measures, independent of those taken by the Kansas Department of Health and Environment. In addition, because plaintiffs were not required to encourage defendant to conduct the groundwater testing, the failure to provide defendant with such an opportunity does not defeat the recoverability of this response cost. However, the court further holds that plaintiff children's claim for a pro rata share of the expenses associated with a toxicoligist's assessment of the health risks from the community's exposure to TCE are not recoverable under CERCLA.

The court holds that even assuming the plaintiff children's federal claims are insubstantial—or wholly absent—the court has subject matter jurisdiction over these pendent parties' state claims. Plaintiff children have stated a federal claim under CERCLA for the recovery of costs for groundwater testing. Even if "pendent claim jurisdiction" is lacking, the related doctrine of "pendent party jurisdiction" is applicable. The court notes that only two other courts have ruled on this issue, and both found pendent party jurisdiction to exist under CERCLA.

Finally, the court holds that while plaintiffs have failed to make any showing sufficient to establish the existence of extreme or severe mental distress needed to prevail in a claim for the intentional infliction of emotional distress, that claim is dismissed. However, Kansas allows recovery of damages for the interference with the reasonable and comfortable use and enjoyment of land, irrespective of any physical injury to a plaintiff's person or of any consequential economic injury. Thus, based on the facts the court holds that plaintiffs have stated a cognizable damages claim under Kansas law for impairment of the use and enjoyment of property, and that such damages are recoverable in addition to the alleged permanent diminution in property value. Because the plaintiff children have no legal interest in the subject land, they may not recover damages under a private nuisance theory for any impairment of the use and enjoyment of their parents' land. Moreover, since no plaintiff has shown special damage, no plaintiff may recover in a private action for a public nuisance.

Counsel for Plaintiffs
Randall K. Rathburn
Depew, Gillen & Rathburn
621 First National Bank Bldg., Witchita KS 67202
(316) 265-9621

Counsel for Defendant
Jay F. Fowler, Douglas L. Stanley, Mikel L. Stout
Foulston & Seifkin
700 Fourth Financial Ctr., Broadway [at] Douglas, Witchita KS 67202
(316) 267-6371

Counsel for Intervenor
Lee Thompson, U.S. Attorney
306 U.S. Courthouse, 401 N. Market, Witchita KS 67202
(316) 269-6481