Agenda - Council - 09/13/1982 - Special

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I I I I I I I I ,'l 27 As mentioned earier, the landowner must prove that the landfill operator's actions or inaction caused the damage to the well. Proving that could be costly and, perhaps, impossible. Th6 landowner must show that the pollution was unquestionably caused by the operation of-the landfill, not merely because 'of the landfill's presence. Finally, the owner must establish the dollar amount of his damages, genenally expenses incurred to repair the damage, or replace the water source. In a nuisance suit, the landowner need only show that the operator's actions constituted a nuisance that interfered with the owner's right to use and enjoy his property, including his well. The courts do not presume that landfills are always nuisances. Liability will be imposed only where there is proof that a substance that is unnatural to the land and has a tendency to cause harm if it escapes has in fact harmed another's land. Negligent or careless operation need not be proved, nor does proof of nonnegligent operation excuse the defendant. The measure of damages in a nuisance suit is the depreciation in the market value of the owner's property because of the pollution. Either a public or private landfill operator could be held liable for damages in a negligence or nuisance suit. In a suit, it may be difficult to locate private defendants or attach their assets. In addition, the assets may not be sufficient to satisfy the judgment. The negligence liability of a political subdivision has a dollar limit established by statute. This limitation may or may not apply to nuisance suits. The liability probably persists even after the land has been transferred to another person or entity. If a landowner could show substantial damage being caused by an-operating landfill, a court might temporarily enjoin its continued operation, pending a liability determination or permanently enjoin its operation unless the operator complies with the terms of the injunction. Such an injunction suit could be brought pursuant to the common law, or to the Environmental Rights Act (Minn. Stat., ch. 116B, 1978). In case of the latter, a citizen's suit could be maintained even though no damages are claimed. Minnesota law also provides for the imposition of criminal and civil penalties for violating the state's Water Pollution Control Act and legislation establishing the PCA. However, not yet addressed are questions of how long after a landfill is closed an operator remains liable, and who is liable if a landfill is sold or used for different purposes. As the law now stands, if the private defendant is found liable but cannot be located, or if the defendant has no assets, the plaintiff'is essentially left without compensation or recourse. If the pollution problem is severe or widespread, and a threat to public health, the taxpayers will likely bear the burden of the cleanup by default. If a city's water supply has been polluted, and no financially solvent defendant can be found, the taxpayer again will have to bear the financial burden of the cleanup. Clearly, there is a need for leg- islation to ensure that operators of solid waste facilities will be responsible for closure and postclosure care of landfill sites. Proposed environmental response and liability legislation, which failed to pass in the 1982 legislative session, would have provided for strict liability for any person responsible for a release of a hazardous substance from a waste disposal facility and for the resulting costs and damages occurring from that