Bad Lands
by Albert M. Cohen

There Are Many Alternatives to CERCLA for the Recovery of Environmental Cleanup Costs.
(Los Angeles Lawyer A two-part series published in January and February, 1995)

A COMPANY DISCOVERS THAT SOIL or groundwater on its property is contaminated with gasoline, diesel fuel, waste oil, or some other hydrocarbon product. The source of the contamination could be an underground storage tank on the property, of which the company was unaware and which apparently was used by a former occupier. Or, the contamination may be migrating onto the property from a neighboring location. A local agency requests that the company landowner investigate and, if necessary, remediate the property. As a result, the owner is subject to considerable potential liability for cleanup costs.

However, although state and local statutes and regulations often provide authorities with the power to require landowners to investigate and remediate, many of these statutes do not provide the owners with the right to seek recovery for cleanup costs from other parties or to seek injunctive relief to force other parties to undertake the remediation.

Moreover; because of the risks associated with environmental contamination, buyers are reluctant to acquire contaminated properties and lenders are similarly wary about lending money for such an investment This can have a significant impact on property values.

Landowners in this predicament probably will not be able to bring claims under the Comprehensive Environmental Response, Compensation and Liability Act of 1980¹ (CERCLA or Superfund), because it contains a "petroleum exclusion." Even if owners could take advantage of CERCLA, it may not offer them all of the relief they seek. As a result, landowners have increasingly turned to common law remedies such as nuisance, trespass, negligence, and strict liability,² as well as actions for breach of contract. Some have tried to use the citizen-suit provisions in the Resource Conservation and Recovery Act.³

Congress passed CERCLA in 1980 to provide federal and state governments with the authority to respond to problems at hazardous waste disposal sites. CERCLA imposes strict, joint and several liability for response costs upon four classes of persons (PRPs):

1. Current owners and operators of facilities. 2. Owners and operators of facilities at the time of the disposal of hazardous substances. 3. Generators of hazardous substances that arranged for the disposal of such substances. 4. Transporters of hazardous substances.⁴

In addition CERCLA provides the United States with the authority to remediate hazardous waste sites, collect its response costs, and order PRPs to remediate contaminated sites. It also provides the federal government, states, and private parties with the right to recover from PRPs the costs incurred in remediating hazardous waste sltes. Thus owners who discover hazardous substances contaminating their property may have a cause of action against other PRPs to recover their response costs. However, CERCLA has several significant limitations that affect a landowner's ability to obtain relief.

First CERCLA only allows recovery for responding to problems caused by releases of "hazardous substances." The term "hazardous substances" specifically excludes "petroleum, including crude oil or any fraction thereof ... " Thus, as a general matter, CERCLA does not apply to petroleum products such as gasoline and diesel fuel-the primary contaminants associated with leaking underground storage tanks.(USTs).⁵

Second, while CERCLA allows recovery of costs of response, removal, and remedial work, it does not permit recovery of other forms of damages such as loss of value⁶ and economic damages.⁷ Therefore, although landowners who purchase contaminated property may incur significant losses in value and rents or other damages as a result of the contamination, CERCLA offers them no basis for recovery of these damages.

Third, while CERCLA permits the federal government to seek injunctive relief to force private parties to remediate, it does not provide private parties with this right.⁸ Thus, even though the government may require noncontaminating landowners to remediate their property, these owners cannot use CERCLA to seek an injunction requiring the other responsible parties to join in that effort. An owner must remediate and then seek relief,⁹ and this can be a significant problem when the remediation costs are extensive.

When owners seeking relief conclude that CERCLA is inadequate, they often look towards common law remedies such as nuisance, trespass, negligence, and strict liability. As tort claims, these remedies arguably offer the opportunity to overcome some of the deficiencies in CERCLA These actions allow recovery for any proximately caused harm.¹⁰ Therefore, a party may attempt to seek reimbursement for 1) costs expended to abate the problem¹¹ and 2) lost profits.¹² A party also may seek punitive damages.¹³

Also, unlike CERCLA, these actions may allow plaintiffs to seek injunctive relief to require the defendant to eliminate the harm.¹⁴ Further, there is no pollution exclusion under these actions. Therefore, there is no bar to seeking relief for contamination caused by petroleum products.

In California, a nuisance is defined in Civil Code Section 3479 as "[a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property…" This provision has been broadly construed "to encompass almost any conceivable type of interference with the enjoyment or use of land or property." As a result, numerous courts have held that environmental contamination can serve as the basis for a nuisance claim.¹⁶

Some of the most common hydrocarbon cases involve claims by current landowners against prior owners who allegedly contaminated the property. Defendants in these cases have argued, however, that nuisance claims can only be brought by one property owner against a neighboring property owner and, therefore, no nuisance claim can be brought against a prior owner or occupier of the property. There is a significant division in authority around the country as to whether a nuisance action can be brought against a property's prior occupant

Until recently, this issue was in considerable doubt under California law. For example, in Longfellow v. County of San Luis Obispo,¹⁷ a California court held that a former owner of land was not liable for injuries sustained by persons while on the land after the property had been transferred. Similarly, in Pinole Point Properties, Inc. v. Bethlehem Steel Corp.,¹⁸ a federal district court, applying California law, held that nuisance claims only arise from the invasion of another's interest and probably cannot be brought against former owners.

However, in 1991 a California court of appeal held that a private nuisance action can be brought against a former tenant. In Mangini v. Aerojet General Corp. (Mangini I), the current property owner sued a defendant who had leased the property from a prior owner and allegedly contaminated the property with hazardous wastes. The plaintiff alleged multiple causes of action, including nuisance and trespass. The defendant argued that nuisance actions were limited to actions against neighboring property owners and could not be brought against a former occupant of the land. The court disagreed, holding that the lessee could be liable for nuisance for contaminating the property and failing to dean it up. The court rejected the defendant's claim that it could not be held liable because it did not currently have a possessory interest in the property and held that any party creating or assisting in the creation of a nuisance is responsible for the ensuing damage.

In Mangini I the defendant argued that consent was a defense to a nuisance claim and that the property owner consented to its activities. The court agreed that consent was a defense but upheld the nuisance claim based on allegations that the defendant had violated its lease without the plaintiff’s consent.

Although Mangini I held that a nuisance action could be brought against a former tenant, it was still unclear whether a landowner could bring a nuisance claim against a former owner. Subsequent court decisions have indicated that such an action may be viable in California. Newhall Land & Farming Go. v. Superior Court¹⁹involved claims by a farming company, Newhall, that had purchased property and subsequently discovered petroleum contamination, heavy metals, and other contaminants in the soil and groundwater on the property. Newhall then brought an action based on continuing nuisance, continuing trespass, and negligence against Mobil Oil and Amerada Hess, the previous owners of the property. The defendants argued that since a nuisance is an invasion of the property rights of the party bringing the action, there could be no nuisance action in this case because, at the time the alleged contamination occurred, the current property owner's rights were not invaded. They argued that contaminating their own property could not be deemed an invasion of their own property rights, and they could not have brought a nuisance claim against themselves. Since Newhall was their successor in interest they argued that it had no cause of action against them for nuisance.

The appellate court disagreed, holding that:

[The defendants'] conduct created a condition on the property which was, and which remains, injurious to health. Once [the defendants] sold their interests without disclosing the contamination, other parties became involved who, upon discovery of the contamination, could bring a claim against [the defendants] in an attempt to force them to accept responsibility for their creation of a nuisance .... [I]n the context of this case, the time of the creation of the nuisance is immaterial with respect to [the defendants'] liability.²⁰

The court rejected the argument that the defendants consented to the activity by noting that the disposal activity was unlawful and therefore could be a basis for a nuisance claim. Other California courts have agreed that nuisance claims can be brought against prior owners.²¹ However, the California Supreme Court has not specifically addressed this issue.

Outside California, several courts have held that an action for private nuisance is only applicable to conflicts between contemporaneous neighbors, and not to conflicts between successive occupants of the same property.²²

It is not clear under California law what standard of care courts will apply to determine liability for nuisance. Some courts have held that Civil Code Sections 3479 and 3483 essentially are strict liability provisions and that parties are liable, regardless of any wrongful conduct simply because a nuisance exists and has not been abated.²³

Other courts, however, have held that a landowner cannot be liable absent some sort of culpable conduct In Lussier v. San Lorenzo Valley Water Dist.,²⁴for example, the plaintiffs suffered damage to their house and the surrounding property as a result of debris, left in an upstream watershed, that flowed downstream during heavy flooding. The plaintiffs argued that nuisance liability could exist despite an absence of wrongful conduct. The court rejected the notion that the defendant was liable simply because it owned the property containing the nuisance.²⁵ The court reasoned that "where liability for the nuisance is predicated on the omission of the owner of the premises to abate it rather than on his having created it then negligence is said to be involved."²⁶ Thus, the court held that the plaintiffs needed to show some wrongful conduct upon which to base the nuisance cause of action.²⁷ The law, therefore, is unclear as to whether any culpable conduct is required to establish a nuisance claim.

Many landowner cases involve claims by current owners against former owners or lessees of the land. The defendants generally argue that they cannot be held liable because consent is a defense to a nuisance claim. The former owners argue that since the contamination was placed on the land while they owned it they necessarily consented and the current owner, who is their successor in interest cannot bring a claim for nuisance. Similarly; former tenants generally argue that the lessor consented to their activities.

There is scholarly support for the view that consent is not a defense to a nuisance claim.²⁸ Additionally, in Newhall Land,²⁹ the court concluded that consent is only a defense in cases where a lease is involved (distinguishing Mangini I).

There is also support for the opposing view that consent is an element of a nuisance claim. For example, Section 839 of the Restatement (Second) of Torts provides that a nuisance is actionable if "it exists without the consent of those affected by it." The Mangini I court relied on Section 839 and held that a former occupier of the land could defend on the grounds that the use of the property was lawful and undertaken with the consent of the plaintiff.³⁰ In that case, the defendant argued that the lessors had consented to the disposals when they signed the lease, which contained provisions that the lessors were aware that activities on the property were hazardous:

[F]rom time to time activities conducted on the premises may have an element of nuisance about them or resulting from them. In this connection, Lessors hereby covenant that they will acquiesce in any nuisance or hazard caused by Lessee on the premises.³¹

While the court agreed that consent was a defense, it refused to dismiss the complaint because it held that there was a factual dispute with regard to whether consent had been given. The court held that when construed in fight of other lease provisions that prohibited waste, required the lessee to comply with laws and ordinances, and required that the property be surrendered in as good a state and condition as when received, the lease provisions were ambiguous with respect to whether the lease authorized hazardous waste disposal during the term of the lease and whether the lease imposed an obligation to clean up any hazard before termination of the lease.³²

Whenever consent is asserted as a defense, the court will undertake a detailed factual inquiry to determine the nature of that consent. The need to reconcile what was reasonable and permissible at the time the disposals occurred and what is appropriate today complicates the resolution of this issue. For example, the landowner may never have given any express consent but may have acquiesced in the defendants activities because they were permissible or generally accepted at a time predating societal awareness of environmental problems. The landlord is likely to argue that it never consented or, had it known that environmental issues would be of concern, would not have consented.³³ Determining whether such acquiescence constituted consent sufficient to provide the polluter with a defense will be a difficult process.

A statute-of-limitations analysis in this area of remedies requires a first look at the traditional rule: the statute begins to run upon the occurrence of the last element essential to the cause of action, even if the plaintiff is unaware of the cause of action.³⁴ For a permanent nuisance, the statutory limitation period begins to run on the day a permanent nuisance is created.³⁵ Since, in a large percentage of these cases, the disposals occurred many years ago, defendants are likely to assert a statute-of-limitations defense., Plaintiffs have asserted various arguments to rebut this defense, with mixed success.

First, plaintiffs have argued that, although the contamination was placed in the ground many years ago, they did not sustain any injury, and hence the statute did not begin to run until they tried to sell the property without success or incurred costs to abate the nuisance. The Mangini I court, however, rejected this argument and held that the injury had been sustained many years earlier, when the contamination occurred. Similarly, the court in CAMSI IV v. Hunter Technology Corp. rejected this argument and held that the harm was "to the property itself, and thus to any owner of the property once the property has been injured and not necessarily to a particular owner."³⁶

Second, plaintiffs have argued that the discovery rule should apply. Under this rule, a cause of action accrues when " '[the] plaintiff either (1) actually discovered his injury and its negligent cause or (2) could have discovered injury and cause through the exercise of reasonable diligence.'"³⁷ Plaintiffs have argued that the statute of limitations did not begin to run until they discovered the contamination even though discovery took place long after the disposal occurred.³⁸ In Tourist Village Motel, Inc. v. Massachusetts Engineering Co., Inc.³⁹ the plaintiff brought an action against a tank manufacturer nine years after the tank was installed, but only a few years after a leak was detected. The court, applying New Hampshire law, held that the discovery rule applied and "it does not appear beyond doubt that the plaintiff, using due diligence, should have discovered a leak occurring from an underground storage tank." Accordingly, the court refused to dismiss the claim on statute-oflimitations grounds.

Although the discovery rule appears to be a way to overcome the statute-of-limitations problem, most California courts that have addressed the issue have found that the plaintiffs failed to establish that they filed their claims within the statutory period even if the discovery rule applied. For example, in Mangini I, the court held that the plaintiffs had sufficient notice of the claims more than three years before the initial complaint had been filed.⁴⁰

Third, plaintiffs may be able to avoid statute of-limitations problems by bringing contribution or equitable indemnity claims, since it is generally recognized that the statute of limitations on such claims does not begin to run until the party seeking indemnity or contribution has suffered loss or damages--i.e., paid the claim.⁴¹

Fourth, plaintiffs have attempted to avoid the statute of limitations by pleading the existence of a "continuing" nuisance, in which case the statute of limitations cannot have run because the injury is ongoing. A permanent nuisance is one that is of such a character that it will presumably continue indefinitely. In such a case, the limitations period runs from the time the nuisance is created.⁴² However, a continuing nuisance is one that may be discontinued at any time and "persons harmed by it may bring successive actions for damages until the nuisance is abated."⁴³

Thus, the Mangini I court held that since the plaintiff pled that the chemical pollution on its property was abatable, it could amend its complaint to allege a continuing nuisance. The court noted that the plaintiff's land could be subject to a continuing nuisance even though the defendant's offensive conduct ended years ago, because the " 'continuing' nature of the nuisance refers to the continuing damage caused by the offensive condition, not to the acts causing the offensive condition to occur."⁴⁴ court concluded that the "plaintiffs should be allowed to amend their complaint to state their proposed facts so as to aver a theory of continuing nuisance and to seek damages caused them within three years of the date of filing the complaint.''⁴⁵

Numerous other courts have allowed continuing nuisance claims under similar circumstances.⁴⁶ Thus, plaintiffs may be able to overcome the statute-of-limitations problem by alleging a continuing nuisance or trespass.⁴⁷

A continuing nuisance must be abatable. In Capogeannis v. Superior Court,⁴⁸ the defendants argued that a nuisance caused by leaching hazardous waste was permanent because it could never be remediated completely. The court rejected this argument and noted that although the contamination could never be removed completely, public agencies had established cleanup levels for the site. It reasoned that "cleanup standards set by responsible public agencies sufficiently reflect expert appraisal of the best that can be done to abate contamination in particular cases."⁴⁹ The court held that the plaintiff could prevail on a claim for continuing nuisance even if the contamination could not be eliminated completely.⁵⁰

Nevertheless, proving that the nuisance is continuing, rather than permanent, may be difficult After the court ruled in Mangini I, the plaintiff amended the complaint to allege a continuing nuisance and, at trial, the jury ruled in favor of the plaintiff. However, the defendant appealed, arguing that the plaintiff had failed to show substantial evidence of a continuing nuisance. The appellate court agreed. In Mangini v. Aerojet-General Corporation (Mangini 11),⁵¹ the court held that it was the plaintiffs burden to establish that the nuisance was continuing--i.e., abatable.

The court held that " 'abatable' means reasonably abatable," and among the factors that must be considered in determining whether a nuisance is reasonably abatable is cost. Thus, the court held that "'abatable' means that the nuisance can be remedied at a reasonable cost by reasonable means." Since the plaintiff admitted that there was insufficient evidence to show the extent of contamination and there was no evidence to show how much abatement would cost, the court held that the plaintiff failed to establish that the nuisance was abatable.

The "reasonably abatable" standard set out by the court creates a significant obstacle for plaintiffs. Determining the nature and extent of contamination at a site can take years of investigation and study, and it can take even longer to decide on an appropriate remedy. Thus, plaintiffs may not have enough information to decide if a nuisance is continuing or permanent and many plaintiffs may lack the resources to hire the experts needed to meet this burden. Moreover, requiring plaintiffs to prove that a nuisance is abatable could put plaintiffs in an untenable position. If they claim a continuing nuisance, they may not be able to meet the difficult burden of proof. However, if they claim a permanent nuisance, they may be unable to obtain injunctive relief and, in some cases, may be barred by the statute of limitations. The California Supreme Court recently granted review of this decision.

The measure of damages for injury to real property is the amount that will compensate the injured party for the detriment caused by the harm. This amount is often the difference between the market value of the property before and after an injury.⁵² When the property can be restored to its original condition, the measure of damages generally is the cost of repairs or restoration plus the value of loss of use of the property.

As a general rule, however, damages are limited to the lesser of the cost of restoration or the diminution in property value.⁵³ This rule can pose a difficult problem for plaintiffs in environmental contamination cases. First, the cost to remediate may exceed the value of the property. In that case, the injured party may be required to expend the cost to remediate, but may only be able to recover the diminution in value. Second, if the cost to remediate is less than the diminution in property value, the injured party only may be able to recover the cost to remediate. However, the property may be worth less because the remediation may not remove all of the contamination or because of the stigma associated with the property as a result of the contamination.

Plaintiffs have raised several arguments in attempts to counter this general rulestarting with the assertion that the rule is not exclusive. Several courts have held that in appropriate instances, an injured party may recover the costs of restoration even if the costs are greater than the diminution in value. For example, in Baker v. Ramirez,⁵⁴ the court upheld the plaintiffs right to recover the costs of the restoration of destroyed orange trees, even though the costs exceeded the diminution in market value. Similarly, in Pacific Gas & Elec. Co.⁵⁵ an inverse condemnation case, the court held that the proper measure of damages where a party was required to relocate a gas pipeline was the cost of relocation rather than the diminution in value. The court held that diminution in value was not a proper measure of damages particularly when "[i]n the interests of safety as well as the prevention of a stoppage of the flow of gas in its main, plaintiff as a public utility, is required to take precautions designed to prevent any break in its mains."⁵⁶

There is also case law supporting the view that "[r]estoration costs may be awarded even though they exceed the decrease in market value... 'where there is reason to believe that the plaintiff will, in fact make the repairs'."⁵⁷ Since, in the hazardous waste context plaintiffs are often required to remediate to protect the public or because it is required by law, they have argued that they should be entitled to recover remedial costs even if those costs exceed the decrease in market value.⁵⁸ Plaintiffs have also argued that even if the cost to remediate is less than the diminution in value, they are entitled to damages in addition to remediation costs because the restored property has been reduced in value. In Bixby Ranch Company v. Spectrol Electronics Co.,⁵⁹ the jury awarded the plaintiff $826,500 in post-cleanup "stigma" damages for the increased risk associated with remediated property and the effect of remediated contamination on its marketability and prospects for financing.⁶⁰

As the court noted in Spaulding v. Cameron, if the plaintiffs recovered damages for diminution in value in a continuing nuisance case, they would be unjustly enriched because they " 'could recover for the depreciation in value of [their] property and at the same time remove the depreciation by abating the cause of it.'"⁶¹ Nevertheless, plaintiffs have argued that even if the nuisance is abatable, they should be entitled to recover damages because the property is viewed as tainted due to its former contaminated condition.

However, defendants may be able to argue successfully that such damages are speculative and therefore are not recoverable.⁶² For example, because of the decline in property values in recent years, some plaintiffs have attempted to recover loss of property value by alleging that they were unable to 'sell when prices were higher because of the contamination. At least one court has held, in a nonenvironmental setting, that a party cannot recover for loss of property value when the time needed to repair coincides with a general decline in the market for such properties.⁶³

In addition, in a continuing nuisance case, the damages generally are limited to those damages sustained within the three years prior to the commencement of the action.⁶⁴ Therefore, a plaintiff cannot recover for any damages sustained before the commencement of the statutory period. In many instances, there are likely to be strong disagreements between plaintiffs and defendants regarding what damages were sustained before that period and what damages were sustained during that period.

In recent years, increased regulatory activity has forced many landowners who did not contaminate their properties to remediate contamination on their land caused by prior owners or occupiers or by neighboring landowners. While in some cases these landowners have been able to use CERCLA to obtain relief, in many instances CERCLA has not been viable: 1) it contains a petroleum exclusion; 2) CERCLA does not allow recovery for economic losses; and 3) CERCLA does not allow the plaintiff to seek injunctive relief to require the other responsible parties to remediate. In recent years, courts have been increasingly willing to entertain private nuisance claims, including claims against prior owners or occupiers of land. Nevertheless, this area of the law is continuing to develop, and many significant legal issues have not been resolved.

Footnotes:

¹ 42 U.S.C.A. §§9601, et seq, (1988).

² In some states, such as California, some or all of these actions have been codified.

³ 42 U.S.C.A. §§6901, et seq. (RCRA) (1988).

⁴ 42 U.S.C.A. §9607(a).

⁵ See, eg, Wilshire Westwood Assoc. v. Atlantic Richfield Corp., 881 F. 2d 801 (9th Cir. 1989) and Niecko v. Emro Marketing Co,, 769 F. Supp. 973,981,982 (E.D. Mich. 1991), aff'd 973 F. 2d. 1296 (6th Cir. 1992). Note, however, that the exclusion probably does not apply to oil that has become contaminated with hazardous substances not naturally found in the petroleum product See, e.g., Mid Valley Bank v. North Valley Bank, 764 F. Supp. 1377,1384 (E.D. Cal. 1991) (waste oil containing CERCLA hazardous substance does not fall under the petroleum exclusion); and State of Wash. v. Time Oil Co., 687 F. Supp. 529,532 (W.D. Wash. 1988) (tank-bottom sludge containing contaminants not indigenous to crude off not subject to exclusion).

⁶ See, e.g., Regan v. Cherry Corp., 706 F. Supp. 145,151 (D.R.I. 1989).

⁷ See, e.g., Artesian Water Co. v. Gov. of New Castle County, 659 F. Supp. 12691 128W 0). Del. 1987), affd, 851 F. 2d 643 (3d Cir. 1988).

⁸ Cadillac Fairview/California, Inc v. Dow Chemical Co., 840 F. 2d 691 (9th Cir. 1988).

⁹ In many cases, a party in this position can seek declaratory relief.  Even so, it may still be required to expend the funds to remediate and then collect the money from the other responsible parties.

¹⁰ See Civ. CODE §3333.

¹¹ See Civ. CODE §§3491,3501.

¹² See French v. Merrill Lynch, Pierce, Fenner & Smith, Inc,, 784 F. 2d 902 (9th Cir. 1986) (applying California law and holding that a plaintiff was entitled to recover lost profits).

¹³ See Sturges V. Charles L. Harney, Inc., 165 Cal App. 2d 306 (1958). In California, punitive damages are awarded only where the defendant has been proven guilty by clear and convincing evidence of malice, oppression, or fraud. CIV. CODE §3294. In Dec. 1993, a jury in California found Shell Oil Co. liable for fraud, breach of contract, and trespass resulting from the company's failure to disclose the existence of environmental contamination to a buyer. The jury awarded close to $144 million in punitive damages. Dominguez Energy L.P. v. Shell Oil Co., C736891.

¹⁴ See CODE Civ. Proc. §731. Note, however, that in cases where the EPA is requiring remediation, claims for injunctive relief brought under state common law theories may be preempted. See Feikema v. Texaco, Inc., 16 F. 3d 1408 (4th Cir. 1994).

¹⁵ Stoiber v. Honeychuck, 101 Cal. App. 3d 903, 919 (1980); People v. Stafford Packing Co., 193 Cal. 719,72526 (1924); Mangini v. Aerojet-General Corp. [hereinafter Mangini 11, 230 Cal. App. 3d 1125,1136 (1991).

¹⁶ See, e.g., Mangini I 230 Cal. App. 3d at 1125; Lincoln Properties v. Higgins, 36 Envtl. Rep. Cas. (BNA) 1228,23 Envtl. L. Rep. (Envtl. L. Inst.) 20,665 (E.D. Cal. 1993).

¹⁷ Longfellow v, County of San Luis Obispo, 144 Cal. App. 3d 379 (1983).

¹⁸ Pinole Point Properties, Inc. v. Bethlehem Steel Corp., 596 F. Supp. 283,292 (N.D. Cal. 1984).

¹⁹ Newhall I-and & Farming Co. v. Superior Court, 19 Cal, App. 4th 334 (1993).

²⁰ Id.

²¹ See Capogeannis v. Superior Court, 12 Cal. App. 4th 668, 673 (1993); KFC Western, Inc. v. Meghrig, 23 Cal. App. 4th 1167 (1994).

²² See Philadelphia Elec. Co. v. Hercules, Inc., 762 F. 2d 303,314 (3d Cir. 1985), cert. denied, 474 U.S. 980,106 S. Ct. 384, 88 L. Ed. 2d 337 (1985); Wilson Auto Enterprises, Inc. v. Mobil Oil Corp., 778 F. Supp. 101 (D.R.I. 1991); Amland Properties Corp. v. Aluminum Co. of America, 711 F. Supp. 784 (D.N.J. 1989).

²³ See Shields v. Wondries, 154 Cal. App. 2d 249, 255 (1957) (defendant could be liable for nuisance despite the fact that its conduct was neither intentional, negligent or subject to traditional strict liability concepts); Portman v. Clementina. Co., 147 Cal. App. 2d 651 (1957).

²⁴ Lussier v. San Lorenzo Valley Water Dist, 206 Cal. App. 3d 92 (1988).

²⁵ Id. at 106.

²⁶ Id. at 105 (quotation omitted).

²⁷ See also Stoiber, 101 Cal. App. 3d 903,162 Cal. Rptr. 194 (1980); Dufour v. Henry J. Kaiser Co., 215 Cal. App. 2d 26,29 (1963). Mangini I and Newhall I-and arguably require culpable conduct since the Mangini I court relied upon the allegation that the lessee failed to comply with the lease, while the Newhall land court relied upon the allegation that the former owner failed to disclose the existence of the contamination.

²⁸ Witkin, Summary of Cal. Law, Equity, §150, at 830 (9th ed. 1990).

²⁹ Newhall Land, 19 Cal. App. 4th 334 (1993).

³⁰ Mangini 1, 230 Cal. App. 3d at 1138.

³¹ Id. at 1140.

³² Consent is not, however, a defense to a public nui sance claim for an injunction to abate a nuisance. Mangini 1, 230 Cal. App, 3d at 1139.

³³ For example, in Mortkowitz v. Texaco, Inc., 842 F. Supp. 1232 (N.D. Cal. 1994), the defendant operated a gas station on the property and argued that the landlord had consented to the activity. The court, however, held that while the landlord may have consented to the use of the property as a gas station, it did not consent to allowing a leaking pipeline. Similarly, in Lincoln Properties, the defendants argued that they were carrying out business activities authorized by the lease. The court held that the lease provisions did not establish consent to the specific disposals that were at issue and that the disposals were inconsistent with the lease provision requiring compliance with laws and regulations.

³⁴ Leaf v. City of San Mateo, 104 Cal. App. 3d 398 (1980).

³⁵ Wilshire Westwood Assoc., 20 Cal App. 4th 732 (1993).

³⁶ CAMSI IV v. Hunter Technology Corp., 230 Cal App. 3d 1525,1534 (1991).

³⁷ Leaf, 104 Cal. App. 3d at 407 (emphasis omitted), quoting Sanchez v. South Hoover Hospital, 18 Cal 3d 93,96-97 (1976).

³⁸ CERCLA effectively mandates application of the discovery rule in cases involving hazardous substances, pollutants, or contaminants. See 42 U.S.C.A. §9658 and American Glue & Resin, Inc. v. Air Products & Chemicals, Inc., 835 F. Supp. 36 (D. Mass. 1993).

³⁹ Tourist Village Motel, Inc., v. Massachusetts Engineering Co., Inc., 801 F. Supp. 903,905 (D.N.H. 1992).

⁴⁰ See also CAMSI IV, 230 Cal. App. 3d 1525; Mortkowitz, 842 F. Supp. 1232 (N.D.Cal. 1994).

⁴¹ See, e.g., People ex rel Dept of Transportation v. Superior Court, 26 Cal. 3d 744 (1980).

⁴² Phillips v. City of Pasadena, 27 Cal. 2d 104, 107 (1945).

⁴³ Baker v. Burbank-Glendale-Pasadena Airport Authority, 39 Cal. 3d 862,869 (1985), cert. denied, 475 U.S. 1017 (1986).

⁴⁴ Mangini 1, 230 Cal. App. 3d at 1147. The court also noted that another court recently had held that "[t]he salient feature of a continuing trespass or nuisance is that its impact may vary over time. Field-Escandon v. DeMann, 204 Cal. App. 3d 228, 234 (1988)." The Mangini I court held that if this were a correct statement of the law, the plaintiffs should be prepared to allege that "the contaimination has migrated or spread on the property continuously since it was initially dumped, and that, therefore, its impact has varied over time." Mangini 1, 230 Cal. App. 3d at 1147.

^{45 Id.}

46 See KFC Western, Inc. v. Meghrig, 23 Cal. App. 4th 1167 (1994); Morthowitz, 842 F. Supp. 1232 (N.D. Cal. 1994); Arcade Water Dist. v. United States, 940 F. 2d 1265 (9th Cir. 1991); Wilshire Westwood Assoc-, 20 Cal. App. 4th 732 (1993).

⁴⁷ But see Pinole Point Properties, 596 F. Supp. 283,292 (N.D. Cal. 1984) (under California law, the mere existence of an abatable nuisance does not toll the statute indefinitely; and, where the defendant had last disposed of wastes years before, the statute of limitations had run). However, this case was decided well before Mangini I and its progeny and may no longer be viable law in California.

⁴⁸ Capogeannis v. Superior Court, 12 Cal. App. 4th 668,682 (1993).

⁴⁹ Id. at 683.

⁵⁰ See also Mangini v. Aeroget-General Corporation [hereinafter Mangini Ill, 26 Cal. App. 4th 760 (1994).

⁵¹ Id.

⁵² Menzies v. Geophysical Services, Inc., 116 Cal. App. 2d 416; Natural Soda Products v. LA, 23 Cal. 2d 193 (1943).

⁵³ Heninger v. Dunn, 101 Cal. App. 3d 858 (1980).

⁵⁴ Baker v. Ramirez, 190 Cal. App. 3d 1123,1137 (1987).

⁵⁵ Pacific Gas & Elec. Co., 233 Cal. App. 2d 268,274 (1965).

⁵⁶ Id. at 274.

⁵⁷ Heninger, 101 Cal. App. 3d at 863, quoting 22 Am. Jur. 2d, Damages, §132, at 192.

⁵⁸ See Mailman's Steam Carpet Cleaning Corp. v. Lizotte, 616 N.E. 2d 85 (Mass. 1993); Davey Compressor Co. v. City of Delray Beach, 639 So. 2d 595 (Fla. 1994).

⁵⁹ Bixby Ranch Co. v. Spectrol Technologies, Los Angeles County Superior Court Case No. 052566. See also In re Paoli Railroad Ward PCB Litigation, 35 F. 3d 717 (3d Cir. 1994) (allowing stigma damages).

⁶⁰ The plaintiff in that case relied upon several cases, including Basin Oil Co. v. Baash-Ross Tool Co., 125 Cal. App. 2d 578,606 (1954) (court should apply damage formula most appropriate to compensate injured party for loss sustained) and Reed v. King, 145 Cal. App. 3d 361 (1983) (seller potentially le for in to disclose stigma attached to property that had been site of multiple murders).

⁶¹ Spaulding v. Cameron, 38 Cal. 2d 265, 270 (1952), quoting Meek v. DeLatour, 2 Cal. App. 261, 265. See also Alexander v. McKnight, 7 Cal. App. 4th 973 (1992) (no damages for lost property value related to excessive noise where compliance with an injunction would remedy the nuisance); Frustruck v. City of Fairfax, 212 Cal. App. 2d 345,367-68 (1963).

⁶² In Vander Laan v. Marathon Oil, Case No. 1:89-CV867 (W.D. Mich., Aug. 18,1993), the court held that quantifying the impact of potential contamination on property values would be 'pure speculation" based on the facts of the case.

⁶³ Safeco Insurance Company of America v. J&D Painting, 17 Cal. App. 4th 1199 (1993), Note, however, that it does not appear that the plaintiff had made any attempt to sell the property. The result could be different if a sale did not go forward because of the contamination.

⁶⁴ Mortkowitz, 842 F. Supp. 1232 (N.D. Cal. 1994); Mangini 1, 230 Cal. App. 3d at 1144; Mangini 11, 26 Cal. App. 4th at 777.