Water Servs. Ltd. v. Texaco, Inc. (In re Tutu Wells Contamination Litig. Rhoda J. Harthman), Master Docket File No. 1989-107
| Decision Date | 13 August 1993 |
| Docket Number | Civil No. 89-220,Master Docket File No. 1989-107,Civil No. 89-224 |
| Citation | 29 V.I. 41 |
| Parties | IN RE: TUTU WELLS CONTAMINATION LITIGATION RHODA J. HARTHMAN, CHARLOTTE A. LA BARRE, ALBERT E. HARTHMAN, ARTHUR E. HARTHMAN, AUSTIN E. HARTHMAN, EDGAR A. HARTHMAN, SAMMY E. HARTHMAN and P.I.D, INC. WATER SERVICES LIMITED, and TUTU SERVICES, LIMITED, Plaintiffs v. TEXACO, INC., TEXACO CARIBBEAN, INC. VERNON MORGAN, ESSO STANDARD OIL, S.A., LTD., DANIEL BAYARD, EXXON CORPORATION, ESSO VIRGIN ISLANDS, INC., ESSO STANDARD OIL COMPANY (PUERTO RICO), THE DUPLAN CORPORATION, LAGA INDUSTRIES, LTD. PANEX CO., PAUL LAZARE and ANDREAS GAL, Defendants ESSO STANDARD OIL, S.A., LTD., TEXACO CARIBBEAN, INC., VERNON MORGAN, Third-Party Plaintiffs v. LAGA INDUSTRIES, LTD., DUPLAN CORPORATION, PANEX COMPANY, PAUL LAZARE and ANDREAS GAL, L'HENRI, INC., RAMSAY MOTORS, INC., Third Party Defendants FOUR WINDS PARTNERSHIP, Plaintiff v. TEXACO CARIBBEAN, INC., VERNON MORGAN, ESSO STANDARD OIL, S.A., LTD., DANIEL BAYARD, EXXON CORPORATION, ESSO VIRGIN ISLANDS, INC., THE DUPLAN CORPORATION, LAGA INDUSTRIES, LTD., PANEX INDUSTRIES, INC., PANEX CO., PAUL LAZARE, and ANDREAS GAL, Defendants ESSO STANDARD OIL, S.A., LTD., Counter-claimant and Third-Party Plaintiff v. LAGA INDUSTRIES, LTD., DUPLAN CORPORATION, PANEX COMPANY, PAUL LAZARE and ANDREAS GAL, L'HENRI, INC., RAMSAY MOTORS, INC., Third-Party Defendants |
| Court | U.S. District Court — Virgin Islands |
Actions for negligence, trespass, strict liability, and nuisance arising from contamination of water wells. The District Court, Brotman, J., held that the claims for nuisance, negligence, and strict liability were governed by two-year limitations period, the claims were not time-barred, oil companies were potentially liable, and no private right of action would be implied under the Virgin Islands Solid and Hazardous Waste Management Act.
[Headnotes Classified to Virgin Islands Digest]
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RICHARD R. KNOEPFEL, ESQ. (BRIGGS, KNOEPFEL & RONCA), Charlotte Amalie, St. Thomas, V.I., and THOMAS H. HART, III, ESQ. (ALKON, RHEA & HART), Christiansted, St. Croix, V.I., for PID-Harthmans
JOHN K. DEMA, ESQ., CAREY-ANNE MOODY, ESQ. (LAW OFFICES OF JOHN K. DEMA, P.C.), Christiansted, St. Croix, V.I., and DARREN DEFOE, ESQ., Waterford, Maine, for Four Winds Plaza Partnership
ADDISON J. MEYERS, ESQ., MARY HOERBER, ESQ. (LAW OFFICES OF O'CONNOR & LEMOS), Coral Gables, Florida and EDGAR CHRIS-TENSEN, ESQ. (LAW OFFICES OF R. ERIC MOORE), Christiansted, St. Croix, V.I., for Texaco, Inc., Texaco Caribbean, Inc.
ROBERT T. LEHMAN, ESQ., DEBRA ROSEN, ESQ., WILLIAM J. O'KANE, ESQ., CHRISTOPHER GIBSON, ESQ. (ARCHER & GREINER), Haddon-field, New Jersey, and DOUGLAS L. CAPDEVILLE, ESQ., Christiansted, St. Croix, V.I., for Esso Standard Oil, S.A., Ltd., Esso Virgin Islands, Inc., Esso Standard Oil Company (Puerto Rico)
RICHARD E. DALEY, ESQ. (LAW OFFICES OF PATTIE & DALEY), Christiansted, St. Croix, V.I., and E. BARCLAY CALE, JR., Co-Counsel, THOMAS A. DYE, ESQ. (MORGAN, LEWIS & BOCKIUS), Miami, Florida, for Exxon Corporation
JOHN A. ZEBEDEE, ESQ. (LAW OFFICES OF JAMES L. HYMES), Charlotte Amalie, St. Thomas, V.I., for Vernon Morgan
FRANCIS E. JACKSON, JR., ESQ., Charlotte Amalie, St. Thomas, V.I., for Daniel Bayard
CAROL ANN RICH, ESQ. (CAMPBELL, ARELLANO & RICH), Charlotte Amalie, St. Thomas, V.I., for Ramsay Motors, Inc.
NANCY D'ANNA, ESQ., Cruz Bay, St. John, V.I., and PATRICIO MARTINEZ LORENZO, ESQ., Hato Rey, Puerto Rico, for L'Henri, Inc.RICHARD G. LELAND, ESQ., CO-COUNSEL, DAVID SLOSSBERG, ESQ. (LAW OFFICES OF ROSENMAN & COLIN), New York, New York and KEVIN A. RAMES, ESQ., Christiansted, St. Croix, V.I., for Paul La-zare, Andreas Gal, The Duplan Corporation, Laga Industries, Ltd., Panex Industries, Inc., and Panex Co.
JOHN R. COON, ESQ., Gallows Bay, St. Croix, V.I., for Western Auto Supply Company
RALDA V. SLMMONDS, ESQ., Charlotte Amalie, St. Thomas, V.I., for Virgin Islands Housing Authority
GEORGE MARSHALL MILLER, ESQ., Charlotte Amalie, St. Thomas, V.I., for Thomas A. Gassett G.S. Industries, Inc.
ROSALIE SLMMONDS BALLANTINE, ESQ., Attorney General for the Virgin Islands, henry THOMAS, Assistant Attorney General, Charlotte Amalie, St. Thomas, V.I., for V.I. Department of Education
KATHERINE E. HARSCH, ESQ. (BORNN, BORNN, HANDY & RASHID), Charlotte Amalie, St. Thomas, V.I., for Siegfried Torinus and Waltrad Torinus
BROTMAN, Judge (Sitting by Designation):
Because of the large number of litigants and the numerous motions pending in this case, the Court will set forth in some detail the case's factual background and procedural history in order to place in perspective the parties' positions.
These actions arose when, on July 8, 1987, a Mr. Eric Tillet detected odors of gasoline emanating from a well located on No. 186 Estate Anna's Retreat, Tutu, St. Thomas. Tillet contacted the Department of Planning and Natural Resources of the Territory of the Virgin Islands ["DPNR"], which contacted and conferred with the United States Environmental Protection Agency ["EPA"].
On or about August 7, 1987, the DPNR ordered the closure of the wells of the Four Winds Plaza Partnership located at No. 392 Estate Anna's Retreat and of the wells of PID, Inc. and members of the Harthman family. See EPA Administrative Order of Consent, IndexNo. 11-RCRA-Proceeding 7003 & 9003-92-0401, dated February 19, 1992 ¶ 6 [hereinafter Consent Order]; see also PID Compl. ¶¶ 15-16; Four Winds Compl. ¶¶ 13-14. As a result of the DPNR Orders, eighteen wells were closed between July 31 and September 2, 1987, and they remain closed to date.
By late July 1987, the EPA had begun its investigation of the suspected pollution of the Tutu Water Wells under the provisions of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9615 ["CERCLA"] and the Resource Conservation and Recovery Act, 48 U.S.C. § 6991 et seq. ["RCRA"]. On August 10 and 11, 1987, the EPA collected water samples from twenty-four wells located in the Tutu section of Anna's Retreat within the Turpentine Run Aquifer. An analysis of the samples revealed the presence of 1, 2-Trans-Dichloroethylene ["DCE"], Trichloroethylene ["TCE"], Tetrachloroethylene ["PCE"], Toluene ["TOL"], benzene, and Terbutylmethylether ["TBME"]. In October 1987, the EPA collected additional samples from twenty-four wells. The analysis of these samples revealed that DCE, TCE, PCE, and TBME are the major contaminants of the water. See Consent Order ¶ 11. In January 1988, after taking additional samples from 123 cisterns serviced by water haulers in the area, EPA initiated a limited CERCLA Removal Action, which included cleaning some cisterns, providing a temporary alternative water supply, and monitoring the well water. See id. ¶¶ 8-12. A photovac sampling in 1989 showed high levels of benzene, TCE, and PCE. See id. ¶ 13. Benzene, DCE, PCE, TCE, TOL, and TBME are gasoline additives, petroleum derivatives, or components of cleaning solvents used by service stations. PCE is also a common component of dry cleaning fluids.
In 1987 and 1988, the EPA issued a series of unilateral orders to Esso Standard Oil, S.A. ["ESSOSA"]; Daniel Bayard; Texaco, Inc., Texaco Caribbean, Inc., and Vernon Morgan ["Texaco Defendants"]; and L'Henri Dry Cleaners ["L'Henri"], requiring them to supply information about the underground storage tanks in which they kept their gasoline and about their use or handling of PCE. The orders also required them to conduct soil vapor surveys. See id. ¶¶ 14-33. The surveys confirmed the presence of TCE, PCE, DCE, and benzene at the Esso facility and at the Four Winds Parking Lot. See id. ¶¶ 20-22. Texaco submitted information confirming that gasoline had leaked from its underground storage tanks. Seeid. ¶¶ 25-26. Soil samples at the L'Henri facility contained PCE in concentrations of 440 parts per million. See id. ¶ 33.
In March 1989, the EPA completed preliminary assessments of potentially responsible parties ["PRP's"] in the area. The parties included Ramsay Motors, Inc.; the old LAGA clothing manufacturing facility, which is now occupied by the Virgin Islands Department of Education ["VIDE"]; and others. Pursuant to the provisions of RCRA and CERCLA, the EPA on March 22, 1990 issued an unilateral Consent Order against ESSOSA, Texaco, and L'Henri, requiring them to take over the well monitoring program. See id. ¶ 4; EPA Administrative Order, Index No. 11-CERCLA-00401, RCRA-90-UST-9003-0401, dated March 22, 1990, Section VII, at 11-13 [hereinafter Unilateral Order).
The first complaint in this action was filed on July 6, 1989 by Plaintiff PID, Inc. against the Texaco Defendants, ESSOSA, and Bayard.1 Four Winds filed an action, District Court Civil No. 1989-224, against the same Defendants on July 7, 1989. The cases were consolidated on November 8, 1989. On June 20, 1990, PID amended its complaint to add seven members of the Harthman family as additional Plaintiffs.
PID, the Harthmans, and Four Winds have all alleged similar common law tort claims for negligence, trespass, nuisance, and strict liability against the Defendants. All the claims arise out of DPNR's closure of the commercial and private wells which draw water from the underground water system known as the Turpentine Run Aquifer ["Tutu Water Wells"]. See Complaints dated July 6, 1989 and June 20, 1990, PID v. Texaco, No. 89-220; Complaint dated July 7, 1989, Four Winds v. Texaco, No. 89-224. Plaintiffs allege that the aquifer that supplied the Tutu Water Wells is the source of potable water to some 20,000 residents. Plaintiffs seek compensatory and punitive damages for lost profits and lost business opportunities allegedly caused by their inability to use or sell the water formerly produced by the wells.
In March 1992, the PID / Harthmans Plainti...
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MRL Dev. I, LLC v. Whitecap Inv. Corp.
...and strict liability claims sound in tort, and are subject to a two year statute of limitations. In re Tutu Wells Contamination Litig., 846 F. Supp. 1243, 1258, 29 V.I. 41 (D.V.I. 1993). This time period is subject to tolling under the discovery rule. Id. The discovery rule provides that a ......