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“Fear of Contamination” From Neighboring Property Not A Nuisance: Eighth Circuit Overturns Class Certification

This week, in the case of Smith v. ConocoPhillips Pipe Line Co., No. 14-2191 (8th Cir.  Sept. 15, 2015), the Eighth Circuit overturned a district court’s grant of a certification to a class comprised of property owners who alleged that the contamination of a neighboring property, and their fear of its spread, was a nuisance.  The Eighth Circuit held that the plaintiffs did not provide evidence that their own properties were contaminated and thus denied class certification based on the plaintiffs’ failure to demonstrate a common injury.

The case arose out of the leakage of approximately 100 gallons of leaded gasoline from an underground pipeline in the 1960s.  A predecessor to the defendant Phillips 66 Pipeline, LLC was the owner of the pipeline at the time of the leak.  In 2002, Phillips discovered that a small number of residential properties on and nearby the property where the leak occurred were contaminated.  Phillips purchased the contaminated properties from the homeowners, demolished the homes, excavated impacted soils, and installed a network of on- and off-site wells to monitor the potential spread of the contamination.  Still, in 2011, the plaintiffs, a group of neighboring property owners, brought a putative class action alleging negligence and nuisance claims against Phillips and sought monetary damages for diminution of property values and injunctive relief compelling the full remediation of the contaminated property.  A second proposed class sought recovery for medical monitoring. 

Groundwater analysis demonstrated that, while the levels of the relevant contaminants, BTEX and lead, in on-site wells were high, the levels of the same substances in off-site wells were all below protection standards. Testing of drinking water in 2011 on 11 properties, including those of the named plaintiffs, showed either no detectable levels of contamination or contamination in concentrations below laboratory reporting limits.  Nevertheless, the plaintiffs’ expert, a geologist, opined that the off-site plume of contamination could have been considerably larger in the past, although he did not opine on which properties may have been affected by the once-larger plume or which property owners were presently in specific danger of exposure to the subject contaminants. 

The district court granted certification to a class of property owners within .25 miles of the site on the negligence claim for damages and injunctive relief, on the theory that "pockets of contamination" might exist within that geographic radius.  Certification of the medical monitoring class was denied on the basis that there was no evidence of actual exposure to the spill contaminants. 

However, drawing on consistent decisions from the Fourth Circuit, Fifth Circuit, and the appellate courts of Michigan, Kansas, Utah, and Ohio, the Eighth Circuit overturned the district court's certification order, concluding that a nuisance claim involving a sub-surface spill must be supported by some evidence of “physical invasion” or actual contamination and that it could not rest solely on the plaintiffs’ alleged fear of contamination or alleged property devaluation.  In so holding, the court stated that “the putative class fear of contamination spreading from the … leak site to harm their property is not a sufficient injury to support a claim for common law nuisance in the absence of proof.”

The Eighth Circuit’s decision stands as an important analysis of common law nuisance doctrine and sets a reasonable bar for future putative classes by requiring evidence of actual injury or actual contamination.