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Burlington N. & Santa Fe Ry. Co. v. Grant

ELR Citation: 37 ELR 20258
Nos. Nos. 04-5182 et al., (10th Cir., 09/24/2007)

The Tenth Circuit reversed in part and affirmed in part a lower court decision dismissing a property owner's Resource Conservation and Recovery Act (RCRA) and state-law claims concerning the purported migration of tar-like material from adjacent property. Both properties are located on a former oil refinery that operated from 1917 until 1932. Tar-like material was a waste byproduct of the refinery's operation. The lower court erred in dismissing the owner's RCRA, public nuisance, and abatement claims at the summary judgment stage. Issues of material fact remain as to whether the migration of tar-like material presented an imminent and substantial endangerment to health or the environment. Likewise, the question of whether the adjacent property owner knew of the tar-like material when he took title to the property was for a jury to decide. The lower court also erred in entering judgment as a matter of law as to the property owner's private nuisance and unjust enrichment claims. The court, therefore, vacated the lower court's order awarding attorneys fees to the neighbor. The lower court, however, properly denied the neighbor's motion for spoliation sanctions.