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Smith v. ConocoPhilips Pipe Line Co.

ELR Citation: 45 ELR 20179
Nos. 14-2191, (8th Cir., 09/15/2015)

The Eighth Circuit reversed a lower court decision certifying as a class a group of homeowners alleging nuisance claims against an oil company that owns a nearby contaminated site. A pipeline leak was discovered under the site in the 1960s, and while the leak was repaired, the contamination was never remediated. In the 2000s, the company purchased and demolished nearby homes that tested positive for contaminants and provided precautionary bottled water to other households near the site. The company continues to provide bottled water to approximately 25 homes, opting to continue its bottled water program in lieu of well testing. In 2011, a group of residents alleged that the company had undertaken unreasonable uses of its land by storing contaminants on site where they had leaked, fencing in that area with posted warning signs, and distributing drinking water instead of regularly testing neighboring wells and remediating the contamination. A lower court certified the group as a class, relying on evidence that contaminants had been shown in the monitoring wells, that the pollution was continually shifting, and that MTBE had been discovered at one residence located roughly 0.25 miles away from the epicenter of the contamination. It also ruled that it could not "rule out the possibility that pockets of contamination exist." But the appellate court reversed. While the residents are concerned about the possibility of contamination reaching their properties and harming them, the discovery and testing that has been conducted in the class area has not shown those fears to be substantiated. The mere fear of contamination spreading from the leak site to harm their property is not a sufficient injury to support a claim for common-law nuisance. The lower court, therefore, abused its discretion by certifying the class in the absence of evidence showing class members were commonly affected by contamination on their property.