Remediation only one concern for landowners beset by contaminants, alligators

September 25, 2013

 alligator

Earlier this year, the Mississippi Court of Appeals took up an unusual case that has been grinding its way through the judicial system for more than five years. At issue is whether ExxonMobil can be held liable for the alleged spread of contamination and alligators from a company-owned property in Mississippi.

According to court documents, Consandra and Tom Christmas purchased about 35 acres of rural land in Wilkinson County between Centreville and Woodville in 2003. At the time, the couple was apparently unaware that an adjacent property—the “Centreville Landfarm”—is a former disposal site for refinery waste.

The Centreville Landfarm has 19 rainwater retention ponds with a total surface area of approximately 85 acres. Concerned about the potential for hazardous contaminants to build up in these pools, the site’s original owner—Rogers Rental and Landfill Company—allegedly introduced its own version of the “canary in the coal mine” to the site as early as 1984. Specifically, the firm relied on “alligators in the disposal pond,” which were imported from Louisiana.

Rogers stopped accepting new shipments of refinery waste in the 1990s and sold the facility to ExxonMobil, with which it already had a close relationship, in 2001. Exxon has maintained the property since then.

Case hinges on when plaintiffs ‘should have’ discovered alligator infestation

The Christmases said they had been occasionally seeing alligators on their property for several years before they determined the source of the reptiles in 2007, when Tom Christmas was given permission to enter the grounds of the disposal site to search for a hunting dog that had disappeared.

Subsequently, Exxon agreed to the Christmases’ request to have the Mississippi Department of Wildlife, Fisheries, and Parks (MDWFP) conduct an alligator census on the company’s property. This yielded a count of 84 alligators, although it was unclear whether all of the reptiles were counted. A trapper employed by the MDWFP culled several alligators from the property, while Exxon reinforced an existing fence bordering the Christmases’ land.

However, this did not resolve the problem, according to the landowners, who filed a lawsuit against ExxonMobil in Wilkinson County Circuit Court in 2008, claiming that their property had been contaminated as a result of runoff from the disposal site and was infested with alligators. They sought damages to compensate them for permanent depreciation of the value of their property.

The court granted summary judgment to Exxon, ruling that the plaintiffs’ claim for damages was barred by the statute of limitations and that injury to their land had occurred before they purchased it, which meant the “prior trespass” doctrine applied.

On appeal, the Christmases argued that because of the rural nature of their property and the fact that it had been unoccupied, it was reasonable that it took them some time to discover the extent of the alligator infestation. Writing for the appellate court, Judge Eugene Love Fair asserted that “alligator infestation is such an unusual injury that a landowner cannot be said to be put on notice by an occasional sighting, particularly in a place like Wilkinson County where there is some naturally occurring alligator habitat.”

“Although it is clear the infestation first arose outside the statute of limitations, we conclude there is a genuine issue of material fact as to when it reasonably should have been discovered,” Fair wrote.

The judge also noted that the basis for the prior trespass doctrine is that buyers pay a lower price for properties with pre-existing problems and there is a triable question as to whether the Christmases “should have” known about the infestation at the time they purchased the property. Accordingly, he ruled that it was improper for the lower court to grant summary judgment to Exxon.

The case was remanded to the Wilkinson County Circuit Court for further proceedings, which means Exxon may still face liabilities. While highly unconventional, this incident offers an illustrative example of why property owners should work with independent consultants to conduct regular environmental site assessments and resolve potential liabilities, rather than relying on ad-hoc pollution control measures or waiting for a problem to sprawl, which can invite legal trouble and necessitate a large-scale remediation project.

Organizations that are unsure of what they need to do to protect their local environment and maintain regulatory compliance should contact a full-cycle environmental services firm to explore proactive solutions that will allow them to mitigate risks and remain focused on their core business.

Interested parties can review the appellate court’s ruling in greater depth.

For more information visit www.ppmco.com or call 1-800-761-8675