In an environmental dispute between innocents involving a Church
and a downgradient property owner, a federal court recently
found the Church, although without original sin, was less innocent
and should bear all the costs of the cleanup, even the costs of
cleaning up an independent source of contamination on the
downgradient property. In Alprof Realty LLC v. Corporation of the Presiding
Bishop of the Church of Jesus Christ of Latter-Day Saints, the
Church had bought a property with knowledge that it was
contaminated. The Church cleaned up the source on its
property and was investigating groundwater contamination on the
downgradient properties when it discovered what it believed was an
independent and additional source of contamination that allegedly
was contributing to groundwater contamination at the downgradient
While acknowledging that the downgradient property owner might
be "incidentally benefitted" by the cleanup of the
contamination coming from the independent source, the Court took a
surprisingly uncharitable view of the Church's various claims
seeking to get some form of contribution from the downgradient
owner. According to the Court, the Church was not entitled to
have the downgradient property owner contribute since the Church
would have conducted the same groundwater investigation and cleanup
whether or not there was an independent source, However, assuming
the downgradient property owner would have had to pay to address
the contamination from the independent source had the Church not
done so, the Court's decision seems too harsh.
The Court goes to great length to establish that this case did
not involve a single CERCLA site with multiple PRPs who all caused
the contamination or shared in the liability. Instead,
the Court finds that this is a case involving two CERCLA sites
- the Church property and the downgradient property.
While the Court fairly notes that the Church should not be able
to require the downgradient property owner to contribute to
the cleanup of the contamination that has migrated from the Church
property, the Court never explains why the downgradient property
owner should get the windfall of having the Church pay 100% of the
costs to remediate the groundwater contamination from the
independent source. Fairness would seem to dictate that the
downgradient property owner should contribute something to reflect
the costs they avoided in not having to undertake cleanup of
contamination from that independent source.
In the absence of contamination from the Church property, the
downgradient owner would presumably have had to pay for the cleanup
of contamination from the independent source. Therefore,
putting the entire burden on the Church results in an "unjust
enrichment" of the downgradient owner. Cleaning up one
source cleans up the other. Both property owners benefit;
both should share in the costs.
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