ELR Citation: ELR 20941
No(s). s. 86-2229 et al (E.D. Pa. Nov 13, 1992)

The court holds that property owners located near a rail yard contaminated by polychlorinated biphenyls (PCBs) are not entitled to damages for temporary and remediable harm to their property which the Environmental Protection Agency (EPA) has agreed to remediate without any cost to the property owners. Under Pennsylvania law, the cost of remediating harm to property is the exclusive measure of damages where the harm is temporary and remediable. The court holds that property owners may not proceed with property damage claims based on mere speculation that EPA's remedies would not be effective, nor is speculative loss due to the stigma of being located near a contaminated site, without more legal support, compensable. Under Pennsylvania law, there is a presumption of temporary harm and the plaintiffs must present evidence of a de facto taking or unequivocal evidence of damage beyond repair in order to show permanent unremediable harm. The court holds that the plaintiffs have failed to meet this burden.

Counsel for Plaintiff
Christopher S. Vaden
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Roger F. Cox, Gary Wynkoop, Benjamin G. Stonelake Jr.
Blank, Rome, Comisky & McCauley
Four Penn Ctr. Plaza, 10th - 13th Fls., Philadelphia PA 19103
(215) 569-5500