Campbell Cnty. v. Royal

• Decision Date: 13 January 2012
• Docket Number: Record No. 101168.
• Citation: 283 Va. 4,720 S.E.2d 90
• Parties: CAMPBELL COUNTY v. Claude M. ROYAL, et al.
• Court: Virginia Supreme Court

283 Va. 4

720 S.E.2d 90

CAMPBELL COUNTY

v.Claude M. ROYAL, et al.

Record No. 101168.

Supreme Court of Virginia.

Jan. 13, 2012.

Lance A. Jackson (Montagna Klein Camden, on brief), Norfolk, for appellant.

Thomas S. Berkley (John M. Ryan; Vanderventer Black, on brief), Norfolk, for appellees.

Present: KINSER, C.J., LEMONS, MILLETTE, MIMS, McCLANAHAN, and POWELL JJ., and LACY, S.J.

OPINION BY Chief Justice CYNTHIA D. KINSER.

In this action, the trial court granted summary judgment against a locality, holding it liable to landowners under the State Water Control Law, Code §§ 62.1–44.2 through –44.34:28 (the Water Control Law), in particular Code § 62.1–44.34:18(C) of the “Discharge of Oil Into Waters” Law, Code §§ 62.1–44.34:14 through –44.34:23 (the Oil Discharge Law), for the contamination of groundwater by leachate and landfill gas. Because we conclude that the Oil Discharge Law does not apply to the passive, gradual seepage of leachate and landfill gas into groundwater, we will reverse the trial court's judgment.

I. MATERIAL FACTS AND PROCEEDINGS

Claude M. Royal and Virginia H. Royal (the Royals) own, operate, and reside in “a manufactured home community” known as “Twin Oaks Park” (the Park), which contains approximately 165 acres situated in Campbell County (the County). ¹ In 2005, when the current litigation began, the Park contained 218 residential lots and had approximately 450 residents. The Park's southern boundary is adjacent to the “Campbell County Sanitary Landfill,” an approximately 160–acre “solid waste disposal facility” owned and operated by the County.²

The County operates the facility pursuant to a permit originally issued by the Department of Health in 1979.³ The facility contains three disposal areas: “the closed capped, and unlined Phase II Disposal Area,” the active “Phase III Disposal Area,” and a “Phase IV Disposal Area to be constructed in the future.” The Phase II Disposal Area was closed in 1995 and is the area from which the solid waste constituents at issue in this case seeped.⁴

Pursuant to the requirements of the Virginia Solid Waste Management Regulations (SWMR), 9 VAC § 20–81–10 et seq.,⁵ the County installed a groundwater monitoring system in the early 1990s with regard to Phase II. ⁶ See 9 VAC § 20–81–250; see also Code § 10.1–1410.2. After detecting “statistically significant” levels of “solid waste constituents in one or more downgradient monitoring wells” in the Phase II area in 1998, the County filed Groundwater Protection Standards (GPS) with the Department of Environmental Quality (DEQ). See 9 VAC § 20–81–250(A)(6). DEQ approved the GPS for Phase II in 2001.

In 2002, a sampling from one of the monitoring wells revealed two constituents (trichloroethene and vinyl chloride) at concentration levels that exceeded their respective GPS. In accord with the SWMR's requirement that the owner or operator of a landfill take corrective action when a GPS “is exceeded at statistically significant levels,” 9 VAC § 20–81–260(A), the County initiated a Nature and Extent Study (NES) and drilled additional groundwater monitoring wells “to address concerns regarding the possibility of groundwater contamination migrating beyond the facility property.” Testing of samples taken from the additional monitoring wells revealed the presence of several “volatile organic compounds” (VOCs).⁷ Among the VOCs detected, seven exceeded the GPS: benzene, chloroethane, dichloroethene, methylene chloride, tetrachloroethene, trichloroethene, and vinyl chloride. These VOCs were further classified as “either chlorinated hydrocarbons or aromatic hydrocarbons.”

The analytical data collected during the NES revealed “a two-pronged (northern and eastern) plume composed of chlorinated and aromatic hydrocarbons present in the uppermost aquifer beneath” Phase II. The northern prong of the plume extended beyond the Landfill property approximately 2,000 feet onto the adjacent property owned by the Royals. Data from some “off-site water supply wells” located on the Park indicated that the northern prong of the plume had impacted “some of the water supply wells in the [P]ark.” The “distribution and concentrations present in the northern prong of the plume [were] the result of a combination of landfill gas and leachate impacts to groundwater.”

According to the NES, the northern prong of the plume “migrated in a direction that [was] contrary to the expected groundwater flow direction based on the potentiometric surface geometry.” The engineers conducting the NES developed three “hydrogeologic models/scenarios” to “explain the distribution and extent of the northern prong of the plume.” The first model involved “a potentiometric surface that was stressed by the groundwater withdrawal activities to the point where the hydraulic gradient along the northern property line of [Phase II] shifted from the apparent natural easterly gradient to one that sloped towards the water supply wells that [were] impacted.” The “second hydrogeologic model” pertained to “the presence of preferential flow pathways in the uppermost aquifer.” The third model provided “for structural control of the groundwater flow direction in the aquifer relative to the expected flow direction as suggested by the gradient of the potentiometric surface.” In sum, the NES reported “that the northern prong of the groundwater plume, which [was] anomalous in terms of groundwater flow direction and velocity in relation to the eastern prong of the plume, [was] likely to be the result of a combination of extensive off-site groundwater withdrawal from the bedrock/saprolite interface, and preferential flow paths.” “Evidence indicate[d] the source of contaminants [was] both landfill gas and leachate from” Phase II and “that natural attenuation of the contaminants [was] occurring in the aquifer.”

In October 2002, DEQ issued a “Notice of Violation” to the County, stating that the Landfill's “current groundwater monitoring system for the closed Phase II area [did] not ensure detection of groundwater contamination in the uppermost aquifer at the northern waste management unit boundary,” i.e., the boundary between the Landfill and the Royals' property. In a subsequent “Order by Consent,” the County agreed, inter alia, to “submit a major Permit amendment for a corrective action program pursuant to [9 VAC § 20–81–260].” ⁸ The County also agreed to notify “ ‘all persons who own the land or reside on the land that directly overlies any part of the plume of contamination’ that [had] migrated beyond the [Landfill's] boundary.”

By letter dated September 19, 2003 the County informed Mr. Royal that “[g]roundwater contamination [had] been detected at various points under” the Park.⁹ In May 2005, the Royals filed a motion for judgment, alleging that the County's “Landfill operations have contaminated underground sources of drinking water at or near the Landfill and on the Park,” and have caused the “discharge[ ]” of various “harmful and toxic chemicals, hazardous substances and pollutants from and in the Landfill waste mass to negatively impact the air, the groundwater, and the surface water on, within and under the Park.” ¹⁰

The Royals claimed the contamination constituted a “discharge of oil,” in violation of Code § 62.1–44.34:18 of the Oil Discharge Law, and also damaged the Royals' property without just compensation, in violation of Article I, Section 11 of the Constitution of Virginia. The Royals prayed for an award of damages against the County.¹¹

The County denied that there had been a “discharge of oil” and that the Royals' property had been taken/damaged “within the meaning of Article 1, Section 11 of the Constitution of Virginia.” After the parties engaged in discovery, the Royals and the County each filed motions for summary judgment. ¹²

In their motion, the Royals argued, among other things, that the County was a “person discharging or causing or permitting a discharge of oil into or upon state waters” and was therefore liable for damages to their property and the Park pursuant to Code § 62.1–44.34:18. They also asserted that the County's operation of the Landfill had damaged their property, they had not been compensated for such damage, and thus the County was liable by reason of inverse condemnation. Conversely, the County contended that the Oil Discharge Law, when read as a whole, did not apply in the context of the County's operation of the Landfill. The County also argued that there were “material facts genuinely in dispute” with regard to the inverse condemnation claim.

At an evidentiary hearing,¹³ the County offered the testimony of Peter Garrett, a geologist, regarding the ways in which the groundwater could have been contaminated by the Landfill operations. Garrett explained that the term “groundwater” means “the water in the ground below our water table [and] any water that percolates ... to the water table.” The term “leachate,” according to Garrett, means “contaminated groundwater,” whether “in that unsaturated zone percolating down into the water table” or already at that level and “moving with [the] groundwater to some other place.” ¹⁴ In landfills, Garrett explained, rainwater falling on the underground waste dissolves the “soluble components in that waste to form leachate.” Garrett testified that the leachate from Phase II contained “ [i]ndustrial solvents that are soluble in water.”

In the case of landfill gas, Garrett offered three explanations as to how the groundwater could have become contaminated. The gas “moves from areas of high pressure to areas of low pressure ... in any direction.” When that gas “gets in direct contact with the groundwater,” the groundwater will become contaminated. Landfill gas can also contaminate groundwater through condensation. Because it is “quite warm,” landfill gas will condense when it comes into contact with cooler soil, thus forming a condensate composed of the landfill gases on the soil. This...