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Cavallo v. Star Enter.

ELR Citation: 27 ELR 20428
Nos. 95-2540, -2541, 100 F.3d 1150/(4th Cir., 11/20/1996)

The court holds that claims that individuals who reside near a petroleum tank farm brought against its owner for damages resulting from releases of petroleum and petroleum vapors may not be preempted by U.S. Environmental Protection Agency (EPA) remedial orders under the Resource Conservation and Recovery Act. The court first holds that the district court improperly dismissed the individuals' claim for loss and enjoyment of the use of their property resulting from the escape of petroleum vapors onto their property. Virginia law allows recovery if the condition complained of is "physically perceptible" from the plaintiff's property. Although the individuals do not allege that they smelled the vapors, the physical symptoms that one of the individuals suffered might suffice. The court next holds that the district court properly dismissed that individual's trespass claim for personal injuries resulting from exposure to the petroleum vapors. Virginia law requires that the discomfort and annoyance complained of be of a kind that would be suffered by a normal person in the community. The individual, however, is not such a person; in fact, she alleges that she is "highly susceptible" to petroleum vapors. The court next holds that the fact that some of the owner's allegedly tortious conduct occurred within the temporal and subject-matter scope of EPA remedial orders does not necessarily compel preemption of a damages claim based on that conduct. Incidents of improper operation, supervision, management, design, installation, repair, and updating of the tank farm may be actionable if they were not compelled by EPA orders. Further, the orders do not preempt the individuals' claims for damages caused by a fuel spill that was not contemplated by the orders, or by the owner's failure to notify the individuals of the spill during the period before it notified EPA. But because the court cannot determine from the face of the complaint and the text of the orders whether or not the orders compelled all of the owner's allegedly improper activities, it cannot determine whether damages based on those activities would conflict with EPA authority or, in turn, whether the preemption doctrine applies. The court next holds that the district court properly applied federal law in determining whether to admit the individuals' expert testimony. Finally, the court holds that the district court properly exercised its discretion in excluding the expert testimony as unsupported by appropriate validation.

Counsel for Plaintiff
Richard E. Wallace Jr.
Howrey & Simon
1299 Pennsylvania Ave. NW, Washington DC 20004
(202) 783-0800

Counsel for Defendants
Allen H. Sachsel
Law Offices of Donnell R. Fullerton
11781 Lee Jackson Hwy., Ste. 310, Fairfax VA 22033
(703) 273-0226

Before ERVIN, Circuit Judge, LAY, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation, and TRAXLER, United States District Judge for the District of South Carolina, sitting by designation.