Campbell County v. Royal ( 2012 )

Present: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and
Powell JJ., and Lacy, S.J.
CAMPBELL COUNTY
OPINION BY
v. Record No. 101168 CHIEF JUSTICE CYNTHIA D. KINSER
January 13, 2012
CLAUDE M. ROYAL, ET AL.
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Michael Gamble, Judge
In this action, the trial court granted summary judgment
against a locality, holding it liable to landowners under the
State Water Control Law, Code §§ 62.1-44.2 through -44.34:28
(the Water Control Law), in particular Code § 62.1-44.34:18(C)
of the "Discharge of Oil Into Waters" Law, Code §§ 62.1-44.34:14
through -44.34:23 (the Oil Discharge Law), for the contamination
of groundwater by leachate and landfill gas. Because we
conclude that the Oil Discharge Law does not apply to the
passive, gradual seepage of leachate and landfill gas into
groundwater, we will reverse the trial court's judgment.
I. MATERIAL FACTS AND PROCEEDINGS
Claude M. Royal and Virginia H. Royal (the Royals) own,
operate, and reside in "a manufactured home community" known as
"Twin Oaks Park" (the Park), which contains approximately 165
acres situated in Campbell County (the County). 1 In 2005, when
1
Modern Home Construction, Inc., a Virginia corporation
owned by the Royals, owns a small parcel of real estate located
within the Park. Like the Royals, it was a plaintiff in the
proceedings in the trial court and is an appellee in this
the current litigation began, the Park contained 218 residential
lots and had approximately 450 residents. The Park's southern
boundary is adjacent to the "Campbell County Sanitary Landfill,"
an approximately 160-acre "solid waste disposal facility" owned
and operated by the County. 2
The County operates the facility pursuant to a permit
originally issued by the Department of Health in 1979. 3 The
appeal. In this opinion, we will refer to the Royals and Modern
Home Construction, Inc. collectively as "the Royals."
2
The term "'[s]olid waste disposal facility' means a solid
waste management facility at which solid waste will remain after
closure." 9 VAC § 20-81-10. The term "'[s]olid waste
management facility' . . . means a site used for planned
treating, storing, or disposing of solid waste. A facility may
consist of several treatment, storage, or disposal units." Id.
The County's permit describes the facility as a "Sanitary
Landfill." The term
"[s]anitary landfill" means an engineered land
burial facility for the disposal of household
waste that is so located, designed, constructed,
and operated to contain and isolate the waste so
that it does not pose a substantial present or
potential hazard to human health or the
environment. A sanitary landfill also may
receive other types of solid wastes, such as
commercial solid waste, nonhazardous sludge,
hazardous waste from conditionally exempt small
quantity generators, construction demolition
debris, and nonhazardous industrial solid waste.
Id.
3
Such permits are now issued by the Department of
Environmental Quality. See Code § 10.1-1408.1(A). Prior to
1986, the Department of Health regulations controlled the
disposal of solid waste. Those regulations have since been
replaced by the Virginia Solid Waste Management Regulations, 9
VAC § 20-81-10, et seq.
2
facility contains three disposal areas: "the closed capped, and
unlined Phase II Disposal Area," the active "Phase III Disposal
Area," and a "Phase IV Disposal Area to be constructed in the
future." The Phase II Disposal Area was closed in 1995 and is
the area from which the solid waste constituents at issue in
this case seeped. 4
Pursuant to the requirements of the Virginia Solid Waste
5
Management Regulations (SWMR), 9 VAC § 20-81-10, et seq., the
County installed a groundwater monitoring system in the early
1990s with regard to Phase II. 6 See 9 VAC § 20-81-250; see also
Code § 10.1-1410.2. After detecting "statistically significant"
levels of "solid waste constituents in one or more downgradient
monitoring wells" in the Phase II area in 1998, the County filed
Groundwater Protection Standards (GPS) with the Department of
Environmental Quality (DEQ). See 9 VAC § 20-81-250(A)(6). DEQ
approved the GPS for Phase II in 2001.
4
Because the Phase II Disposal Area is the only portion of
the solid waste disposal facility relevant to the issues in this
appeal, we will refer to it in this opinion as "the Landfill" or
"Phase II."
5
In March 2011, the Department of Environmental Quality
amended and renumbered the SWMR. With respect to the
regulations cited in this opinion, the changes were non-
substantive. We will thus refer to the current version of the
SWMR.
6
The County did not install monitoring wells at the
northern boundary of the Landfill until 2002, allegedly because
of incorrect advice from its engineers.
3
In 2002, a sampling from one of the monitoring wells
revealed two constituents (trichloroethene and vinyl chloride)
at concentration levels that exceeded their respective GPS. In
accord with the SWMR's requirement that the owner or operator of
a landfill take corrective action when a GPS "is exceeded at
statistically significant levels," 9 VAC § 20-81-260(A), the
County initiated a Nature and Extent Study (NES) and drilled
additional groundwater monitoring wells "to address concerns
regarding the possibility of groundwater contamination migrating
beyond the facility property." Testing of samples taken from
the additional monitoring wells revealed the presence of several
"volatile organic compounds" (VOCs). 7 Among the VOCs detected,
seven exceeded the GPS: benzene, chloroethane, dichloroethene,
methylene chloride, tetrachloroethene, trichloroethene, and
vinyl chloride. These VOCs were further classified as "either
chlorinated hydrocarbons or aromatic hydrocarbons."
The analytical data collected during the NES revealed "a
two-pronged (northern and eastern) plume composed of chlorinated
and aromatic hydrocarbons present in the uppermost aquifer
beneath" Phase II. The northern prong of the plume extended
7
VOCs are "very volatile. . . . organic chemicals" that may
include "components of gasoline." The VOCs initially detected
were: "benzene; chlorobenzene; chloroethane; 1,2-
dichlorobenzene; 1,4-dichlorobenzene; 1,1-dichloroethane; cis-
1,2-dichloroethene; dichloromethane; tetrachloroethene, toluene;
trichloroethene; vinyl chloride; and xylenes."
4
beyond the Landfill property approximately 2,000 feet onto the
adjacent property owned by the Royals. Data from some "off-site
water supply wells" located on the Park indicated that the
northern prong of the plume had impacted "some of the water
supply wells in the [P]ark." The "distribution and
concentrations present in the northern prong of the plume [were]
the result of a combination of landfill gas and leachate impacts
to groundwater."
According to the NES, the northern prong of the plume
"migrated in a direction that [was] contrary to the expected
groundwater flow direction based on the potentiometric surface
geometry." The engineers conducting the NES developed three
"hydrogeologic models/scenarios" to "explain the distribution
and extent of the northern prong of the plume." The first model
involved "a potentiometric surface that was stressed by the
groundwater withdrawal activities to the point where the
hydraulic gradient along the northern property line of [Phase
II] shifted from the apparent natural easterly gradient to one
that sloped towards the water supply wells that [were]
impacted." The "second hydrogeologic model" pertained to "the
presence of preferential flow pathways in the uppermost
aquifer." The third model provided "for structural control of
the groundwater flow direction in the aquifer relative to the
expected flow direction as suggested by the gradient of the
5
potentiometric surface." In sum, the NES reported "that the
northern prong of the groundwater plume, which [was] anomalous
in terms of groundwater flow direction and velocity in relation
to the eastern prong of the plume, [was] likely to be the result
of a combination of extensive off-site groundwater withdrawal
from the bedrock/saprolite interface, and preferential flow
paths." "Evidence indicate[d] the source of contaminants [was]
both landfill gas and leachate from" Phase II and "that natural
attenuation of the contaminants [was] occurring in the aquifer."
In October 2002, DEQ issued a "Notice of Violation" to the
County, stating that the Landfill's "current groundwater
monitoring system for the closed Phase II area [did] not ensure
detection of groundwater contamination in the uppermost aquifer
at the northern waste management unit boundary," i.e., the
boundary between the Landfill and the Royals' property. In a
subsequent "Order by Consent," the County agreed, inter alia, to
"submit a major Permit amendment for a corrective action program
pursuant to [9 VAC § 20-81-260]." 8 The County also agreed to
notify "'all persons who own the land or reside on the land that
directly overlies any part of the plume of contamination' that
[had] migrated beyond the [Landfill's] boundary."
8
The County also prepared an "Assessment of Corrective
Measures" pursuant to 9 VAC § 20-81-260(C)(3), and a "Risk
Assessment" to supplement the Assessment of Corrective Measures.
6
By letter dated September 19, 2003 the County informed Mr.
Royal that "[g]roundwater contamination [had] been detected at
various points under" the Park. 9 In May 2005, the Royals filed a
motion for judgment, alleging that the County's "Landfill
operations have contaminated underground sources of drinking
water at or near the Landfill and on the Park," and have caused
the "discharge[]" of various "harmful and toxic chemicals,
hazardous substances and pollutants from and in the Landfill
waste mass to negatively impact the air, the groundwater, and
the surface water on, within and under the Park." 10
The Royals claimed the contamination constituted a
"discharge of oil," in violation of Code § 62.1-44.34:18 of the
Oil Discharge Law, and also damaged the Royals' property without
just compensation, in violation of Article I, Section 11 of the
Constitution of Virginia. The Royals prayed for an award of
damages against the County. 11
9
The Royals knew, before the September 2003 letter, about
the potential groundwater contamination. They drilled a
monitoring well on their property in the spring of 2002 and
learned that small amounts of some solid waste constituents were
present in a few of the wells situated in the Park.
10
The parties agreed that the groundwater of both the
Landfill and the Park contained benzene, chloroethane, CIS-1, 2-
dichloroethene, methylene chloride, tetrachloroethene,
trichloroethene, and vinyl chloride.
11
The Royals also asserted a claim for breach of contract,
but that claim is not before us in this appeal.
7
The County denied that there had been a "discharge of oil"
and that the Royals' property had been taken/damaged "within the
meaning of Article 1, Section 11 of the Constitution of
Virginia." After the parties engaged in discovery, the Royals
and the County each filed motions for summary judgment. 12
In their motion, the Royals argued, among other things,
that the County was a "person discharging or causing or
permitting a discharge of oil into or upon state waters" and was
therefore liable for damages to their property and the Park
pursuant to Code § 62.1-44.34:18. They also asserted that the
County's operation of the Landfill had damaged their property,
they had not been compensated for such damage, and thus the
County was liable by reason of inverse condemnation.
Conversely, the County contended that the Oil Discharge Law,
when read as a whole, did not apply in the context of the
County's operation of the Landfill. The County also argued that
there were "material facts genuinely in dispute" with regard to
the inverse condemnation claim.
12
The County also filed a plea in bar, arguing that the
Royals' claims were barred by the applicable statute of
limitations for property damage and inverse condemnation claims.
See Code §§ 8.01-243(B) -246(4), respectively. The trial court
denied the plea in bar, holding that, pursuant to 42 U.S.C.
§ 9658(a)(1), the federal commencement date applied and the
Royals' cause of action accrued when they knew or reasonably
should have known of the damage to the Park. Although the
County now challenges the trial court's denial of its plea in
bar, we need not address that issue.
8
At an evidentiary hearing, 13 the County offered the
testimony of Peter Garrett, a geologist, regarding the ways in
which the groundwater could have been contaminated by the
Landfill operations. Garrett explained that the term
"groundwater" means "the water in the ground below our water
table [and] any water that percolates . . . to the water table."
The term "leachate," according to Garrett, means "contaminated
groundwater," whether "in that unsaturated zone percolating down
into the water table" or already at that level and "moving with
[the] groundwater to some other place." 14 In landfills, Garrett
explained, rainwater falling on the underground waste dissolves
the "soluble components in that waste to form leachate."
Garrett testified that the leachate from Phase II contained
"[i]ndustrial solvents that are soluble in water."
In the case of landfill gas, Garrett offered three
explanations as to how the groundwater could have become
contaminated. The gas "moves from areas of high pressure to
13
Initially, the hearing was to resolve disputed facts
relevant to the County's plea in bar. The trial court, however,
used the testimony and documents presented at that hearing,
along with discovery responses, in ruling on the cross-motions
for summary judgment. The court's use of those materials is not
challenged on appeal.
14
In the SWMR, the term " '[l]eachate' means a liquid that
has passed through or emerged from solid waste and contains
soluble, suspended, or miscible materials from such waste.
[L]eachate that has contaminated groundwater is regulated as
contaminated groundwater." 9 VAC § 20-81-10.
9
areas of low pressure . . . in any direction." When that gas
"gets in direct contact with the groundwater," the groundwater
will become contaminated. Landfill gas can also contaminate
groundwater through condensation. Because it is "quite warm,"
landfill gas will condense when it comes into contact with
cooler soil, thus forming a condensate composed of the landfill
gases on the soil. This condensation will then "move downwards
with the percolating [rainwater] toward the water table."
Finally, the rainwater may absorb the landfill gas if it comes
into contact with the gas.
Jeffrey D. Marshall also testified for the County as an
expert in waste management and geology hydrology. Marshall
stated Phase II was a "trench-and-fill sort of landfill," where
waste was placed into trenches. When precipitation comes into
contact with the waste, it migrates through the waste and
"pick[s] up soluble constituents." Without a plastic liner on
the bottom of the Landfill, 15 the rainwater percolates through
the soil and directly into the groundwater. Marshall also
explained contamination through landfill gas, stating that the
organic components of the waste degrade and form gas, which then
migrated carrying the "trace concentrations of those VOCs with
15
At the time the Landfill was built, solid waste disposal
facilities were not required to install an underground plastic
liner.
10
it." Rainwater then percolates down and picks up some of the
trace concentrations, carrying them down to the groundwater.
Marshall stated that the majority of the VOCs detected in
the contaminated groundwater from Phase II were chlorinated
solvents "commonly used in industry at the time" and often found
in leachate in the groundwater around unlined landfills.
Likewise, the other non-chlorinated VOCs, such as benzene, were
"common constituents used in gasoline" and "commonly detected at
all unlined landfills."
After the evidentiary hearing, the trial court issued a
letter opinion, concluding that no material facts were genuinely
in dispute as to the migration of benzene from the Landfill onto
the Royals' property. 16 The court further stated there was no
dispute that benzene is a liquid hydrocarbon. Thus, the court
held that "on the basis of benzene alone being in the
contaminated groundwater, the County is liable for any damages
to the property of the Royals under the provisions of Code
§ 62.1-44.34:18(C)." Based on the definition of the term "oil"
in Code § 62.1-44.34:14, which includes "all other liquid
hydrocarbons regardless of specific gravity," the court further
concluded that the chlorinated hydrocarbons found in the
16
At a prior hearing on the cross-motions for summary
judgment and the County's plea in bar, the trial court stated
that the Oil Discharge Law, specifically Code § 62.1-
44.34:18(C), applies in this case.
11
groundwater, "just as benzene, come within the provisions of
Code § 62.1-44.32:18(C)."
With regard to the claim for inverse condemnation, the
trial court concluded that "[t]he migration of contaminants from
the [L]andfill into the groundwater on the Royal[s'] property
makes [the] County liable for any damage or diminution of value
for the Royal[s'] property." Thus, the trial court sustained
the Royals' motion and granted summary judgment against the
County, holding it liable on both the Oil Discharge Law and
inverse condemnation claims asserted by the Royals.
Following an eight-day trial on the sole issue of damages,
a jury returned a verdict for the Royals in the amount of $9
million. The trial court overruled the County's post-trial
motion to set aside the verdict and entered judgment in
accordance with the jury's verdict and also awarded the Royals
attorneys' fees and costs in accordance with Code § 62.1-
44.34:18(F). We awarded the County this appeal.
II. ANALYSIS
A. Issues and Standard of Review
On appeal, the County assigns error to the trial court's
judgment on several grounds. The dispositive issue, however, is
whether the trial court, in granting summary judgment, erred by
holding that the contamination of groundwater beneath Phase II
by the passive, gradual seepage of leachate and landfill gas and
12
the subsequent migration of that contaminated groundwater onto
the Royals' property subjected the County to liability under
Code § 62.1-44.34:18(C) of the Oil Discharge Law. See Andrews
v. Ring, 266 Va. 311, 318, 585 S.E.2d 780, 783 (2003)("Summary
judgment upon all or any part of a claim may be granted to a
party entitled to such judgment when no genuine issue of
material fact remains in dispute, and the moving party is
entitled to judgment as a matter of law."). Answering this
question requires an examination of both the Virginia Waste
Management Act, Code §§ 10.1-1400 through -1457 (VWMA), and the
Oil Discharge Law. Because this issue involves the
interpretation of these relevant statutes, it is a pure question
of law this Court reviews de novo. Renkey v. County Board, 272
Va. 369, 373, 634 S.E.2d 352, 355 (2006).
B. Relevant Statutes
1. The VWMA
First passed in 1986, the VWMA requires any person who
wishes to operate a "sanitary landfill or other facility for the
disposal, treatment or storage of nonhazardous solid waste" to
obtain a permit from the DEQ director. 1986 Acts ch. 492; Code
§ 10.1-1408.1(A). The DEQ director can amend or revoke a permit
if the permit holder has violated any regulation that resulted
in a release of harmful substances, maintained or operated a
facility in such a manner as to pose a hazard to human health or
13
the environment, or if leachate from the landfill poses "a
substantial threat of contamination or pollution of the air,
surface waters, or [groundwater]." Code § 10.1-1409(4).
Under the VWMA, the Virginia Waste Management Board (the
Board) is authorized to "[s]upervise and control waste
management activities in the Commonwealth." Code § 10.1-
1402(1). Among other things, the Board is charged with:
requiring maintenance of certain records and reporting systems,
Code § 10.1-1402(7); promulgating and enforcing regulations, -
1402(11); taking "actions to . . . clean up sites . . . where
solid or hazardous waste" has been "improperly managed," -
1402(19); and abating "hazards and nuisances dangerous to public
health, safety, or the environment . . . created by the improper
disposal, treatment, storage, transportation or management of
substances within the jurisdiction of the Board," -1402(21). In
the event that hazardous or solid waste has been "improperly
managed," the Board is authorized "to contain or clean up sites"
and may institute legal proceedings to recover the costs of such
"containment or clean-up activities from the responsible
parties." Code § 10.1-1402(19).
Pursuant to its authority under Code § 10.1-1402(11), the
Board has promulgated extensive regulations governing solid
waste management. The purpose of the SWMR is "to establish
standards and procedures pertaining to the management of solid
14
wastes by providing the requirements for siting, design,
construction, operation, maintenance, closure, and postclosure
care of solid waste management facilities in the Commonwealth in
order to protect the public health, public safety, the
environment, and our natural resources." 9 VAC § 20-81-25(A).
Any person who operates a facility for the disposal, treatment,
or storage of solid waste without a permit, or violates the SWMR
or other laws with respect to the disposal or management of
solid waste, is required to cease such activity and "initiate
such removal, cleanup, or closure in place." 9 VAC § 20-81-
40(D). In addition to obtaining a permit, an owner or operator
of a solid waste management facility is required to provide
"financial assurance" for the "closure, post-closure care and
corrective action at [such facility.]" 9 VAC § 20-81-90(C); 9
VAC § 20-70-30.
Although Phase II was permitted prior to the existence of
the requirement, a solid waste management facility must now
contain a "bottom liner," the specifications for which are
outlined in the SWMR, to protect from and collect the leachate
produced by the facility. See 9 VAC § 20-81-130(J). In
addition, such facility is required to estimate the quality and
quantity of leachate to be produced annually, devise a leachate
collection system, and design and plan for the handling, storage
and treatment of leachate. 9 VAC § 20-81-210(A).
15
"To provide for the protection of public health and safety,
and the environment," the operator of a solid waste management
facility must "ensure that decomposition gases generated at a
landfill are controlled during the periods of operation, closure
and postclosure care." 9 VAC § 20-81-200(A)(1). The operator
must also "implement a gas monitoring program at the landfill,"
and the "monitoring network" must be "designed to ensure
detection of the presence of decomposition gas migrating beyond
the landfill facility boundary and into landfill structures."
9 VAC § 20-81-200(B)(1).
Of particular importance to the present case, "[o]wners and
operators of all existing landfills shall be in compliance with
the groundwater monitoring requirements specified in this
section." 9 VAC § 20-81-250(A)(1)(a). Those requirements
include the specification that such owners or operators "shall
install, operate, and maintain a groundwater monitoring system
that is capable of determining the landfill's impact on the
quality of groundwater in the uppermost aquifer at the disposal
unit boundary during the active life and postclosure care period
of the landfill." 9 VAC § 20-81-250(A)(2)(a). The system must
contain "a sufficient number of monitoring wells" to sample and
analyze groundwater quality, including the groundwater quality
"at the disposal unit boundary." 9 VAC § 20-81-250(A)(3)(a)(2).
The SWMR includes a "Groundwater Solid Waste Constituent
16
Monitoring List" (Monitoring List), which contains many of the
constituents found in the groundwater at issue in this case,
including benzene. 9 VAC § 20-81-250, tbl. 3.1. If testing
reveals a "statistically significant increase" above background
values, the owner or operator of the facility must propose GPS
"for all detected Table 3.1 Column B constituents." 9 VAC § 20-
81-250(A)(6); see also 9 VAC § 20-81-250(B)(3)(d). If
additional testing again reveals "statistically significant
levels" above the GPS, the owner or operator must notify DEQ
within 14 days and implement a "corrective action program."
9 VAC § 20-81-250(B)(2)(b)(1); see also 9 VAC § 20-81-260(A).
When a corrective action program is required, the owner or
operator of a landfill initially must: install additional
monitoring wells; notify all persons who own or reside on land
that overlies the release of contaminants; "initiate an
assessment of corrective measures or a proposal for presumptive
remedy"; provide an additional $1 million in financial
assurance; and hold a public meeting to discuss the corrective
measures assessment or proposal for presumptive remedy. 9 VAC
§ 20-81-260(C)(1). As part of the assessment of corrective
measures, the owner or operator must select a remedy that, inter
alia, protects "human health and the environment," attains the
GPS, and controls "the sources of releases so as to reduce or
eliminate . . . further releases of solid waste constituents
17
into the environment." 9 VAC § 20-81-260(C)(3)(c). After DEQ
has reviewed the proposed remedy, the owner or operator must
submit to DEQ a corrective action plan. 9 VAC § 20-81-260(D).
Any groundwater monitoring to be employed in the corrective
action plan must determine the "horizontal and vertical extent
of the plume of contamination for constituents at statistically
significant levels exceeding background concentrations." 9 VAC
§ 20-81-260(D)(1)(c). 17
At the time of closing a landfill, the owner or operator
"shall eliminate the post closure escape of uncontrolled
leachate or of waste decomposition products to the groundwater
or surface water to the extent necessary to protect human health
and the environment." 9 VAC § 20-81-160(A); see also 9 VAC
§ 20-70-90(A). Postclosure care requirements include
maintaining the leachate collection system, the groundwater
monitoring system, and the gas monitoring system. 9 VAC § 20-
81-170(A)(1).
17
DEQ required the County to submit a corrective action
plan for the treatment of the on-site and off-site contaminated
groundwater.
18
2. Oil Discharge Law
The Oil Discharge Law, which is found in Article 11 of the
Water Control Law, falls under the purview of the State Water
Control Board. See Code §§ 62.1-44.3; -44.15. And in contrast
to the breadth of the VWMA when first enacted, the original Oil
Discharge Law, enacted in 1973, 18 contained only two sections.
Former Code § 62.1-44.34:1 defined the terms "discharge," "oil,"
"oil refinery," and "vessel," and former Code § 62.1-44.34:2
contained the following liability provision:
Any person, firm or corporation owning or
operating an oil refinery or any vessel while
within State waters, which permits or suffers a
discharge of oil into such waters, shall be
liable to the Commonwealth of Virginia for all
costs of cleanup or property damage incurred by
the State or a political subdivision thereof, and
any person showing damage to his property
resulting from such discharge. In any suit to
enforce the claims under this article, it shall
not be necessary for the State, political
subdivision, or person showing property damage,
to plead or prove negligence in any form or
manner on the part of the oil refinery or vessel.
In 1976, the General Assembly deleted the term "oil
refinery" from that statute and replaced it with the term
"facility," which it defined as "any development or installation
. . . that deals in or handles oil, petroleum or any petroleum
product or by-product." 1976 Acts ch. 51. In 1978, the Oil
Discharge Law was amended, inter alia, to impose a cap on
18
See 1973 Acts ch. 417.
19
damages in the absence of negligence, grant the Water Control
Board the authority to abate and contain a discharge of oil if
the responsible party could not be identified, and require the
"person, firm or corporation owning or operating any facility,
vessel or vehicle from which there is a discharge of oil" to
report such discharge to the Water Control Board. 1978 Acts ch.
816 (enacting former Code § 62.1-44.34:4). In addition, the
General Assembly expanded the liability provision from a
"person, firm or corporation" that owned a facility or vessel,
to "[a]ny person, firm or corporation causing or permitting a
discharge of oil into State waters, or owning or operating any
facility, vessel or vehicle from which there is a discharge of
oil." Id. (amending former Code § 62.1-44.34:2(A)).
In 1990, the General Assembly specifically defined the term
"person" as "any firm, corporation, association or partnership,
one or more individuals, or any governmental unit or agency
thereof." 1990 Acts ch. 917 (enacting Code § 62.1-44.34:14).
At that time, the General Assembly also added provisions
relating to financial responsibility and oil discharge
contingency plans, as well as "Exemptions" and "Exceptions."
Id. (enacting Code §§ 62.1-44.34:16 and -44:34:17, and amending
Code § 62.1-44.34:23). The "Exemptions" provision relieved
facilities and vessels with smaller storage and handling
capacities from the requirements of filing an oil discharge
20
contingency plan and complying with the financial responsibility
requirements. Id. The "Exceptions," meanwhile, precluded the
application of any part of the Oil Discharge Law to several
categories of unintentional discharges:
(i) normal discharges from properly functioning
vehicles and equipment, marine engines, outboard
motors or hydroelectric facilities; (ii)
accidental discharges from farm vehicles or
noncommercial vehicles; (iii) accidental
discharges from the fuel tanks of commercial
vehicles or vessels that have a fuel tank
capacity of 150 gallons or less; (iv) discharges
authorized by a valid permit issued by the Board
. . . ; (v) underground storage tanks regulated
under a state program. . . .
Code § 62.1-44.34:23 (as amended by 1990 Acts ch. 917).
The provision of the Oil Discharge Law under which the
trial court held the County liable currently provides:
Any person discharging or causing or
permitting a discharge of oil into or upon state
waters . . . within the Commonwealth, discharging
or causing or permitting a discharge of oil which
may reasonably be expected to enter state waters
. . . and any operator of any facility, vehicle
or vessel from which there is a discharge of oil
into or upon state waters, . . . shall be liable
to:
. . . .
4. Any person for injury or damage to
person or property, real or personal, loss of
income, loss of the means of producing income, or
loss of the use of the damaged property for
recreational, commercial, industrial,
agricultural or other reasonable uses, caused by
such discharge.
21
Code § 62.1-44.34:18(C). The liability provision also: allows
the recovery of attorneys' fees and costs, Code §§ 62.1-
44.34:18(F); imposes strict liability, -44.34:18(E); and
requires any person or operator to implement "any applicable oil
spill contingency plan" or take other action to contain and
clean up a discharge, -44.34:18(B).
The term "[o]il" is defined as "oil of any kind and in any
form, including, but not limited to, petroleum and petroleum by-
products, fuel oil, lubricating oils, sludge, oil refuse, oil
mixed with other wastes, crude oils and all other liquid
hydrocarbons regardless of specific gravity." Code § 62.1-
44.34:14. The term "[p]erson," still defined according to the
1990 amendment, includes "one or more individuals, or any
governmental unit or agency thereof." Id. The term
"[d]ischarge" is "any spilling, leaking, pumping, pouring,
emitting, emptying or dumping." Id.
In the event of a discharge of oil, "any [person or]
operator of any facility, vehicle or vessel from which there is
a discharge" is required to immediately notify, among others,
the Water Control Board. Code § 62.1-44.34:19. Upon finding a
violation of the Oil Discharge Law, the Water Control Board may,
inter alia, seek injunctive relief and recover "costs, damages
and civil penalties." Code § 62.1-44.34:20(B). A person who
"negligently" or "knowingly and willfully" discharges oil in
22
violation of the Oil Discharge Law can be convicted of a
misdemeanor or a felony, respectively. Code § 62.1-44.34:20(E).
The remaining provisions of the Oil Discharge Law relate to
facilities, operators, storage tanks, and vessels. In
particular, Code § 62.1-44.34:15.1 authorizes the Water Control
Board to promulgate regulations for aboveground storage tanks,
and includes specific provisions to be included, while Code
§ 62.1-44.34:19.1 requires the registration of aboveground
storage tanks. Pursuant to Code § 62.1-44.34:15(A), "[n]o
operator shall cause or permit the operation of a facility . . .
unless an oil discharge contingency plan applicable to the
facility has been filed." The term "[f]acility" is "any
development or installation within the Commonwealth that deals
in, stores or handles oil, and includes a pipeline." Code
§ 62.1-44.34:14. The provisions of Code § 62.1-44.34:16 require
the operators of facilities and tank vessels to establish and
maintain financial responsibility against a discharge.
Similarly, the Oil Discharge Law's exemptions and
exceptions also apply to certain categories of vessels, storage
tanks, and facilities. The exemptions, listed in Code § 62.1-
44.34:17, relieve facilities, tanks, and vessels with smaller
storage and handling capacities from the oil contingency and
financial responsibility provisions; exclude "nonpetroleum
hydrocarbon-based animal and vegetable oils" from the definition
23
of oil for the purposes of the oil contingency plan and
financial responsibility provisions; and relieve aboveground
storage tanks with smaller storage capacity and facilities that
do not resell oil from their aboveground storage tanks from the
requirements of Code § 62.1-44.34:15.1. The current exceptions,
which exclude all coverage under the Oil Discharge Law, add to
the 1990 amendment an exception for "releases from underground
storage tanks . . . regardless of when the release occurred."
Code § 62.1-44.34:23(A)(vi).
The Virginia Administrative Code reflects a similar focus
on storage tanks, vessels, and facilities. The regulations
governing the Water Control Board contain two chapters dealing
with the Oil Discharge Law: Chapter 91, titled "Facility and
Aboveground Storage Tank (AST) Regulation," 9 VAC § 25-91-10, et
seq.; and Chapter 101, titled "Tank Vessel Oil Discharge
Contingency Plan and Financial Responsibility Regulation," 9 VAC
§ 25-101-10, et seq. As their titles suggest, these regulations
apply only to aboveground storage tanks, facilities, and
vessels. See 9 VAC § 25-91-20; 9 VAC § 25-101-20.
C. Applicability of Oil Discharge Law
According to the record at the summary judgment stage of
this action, Phase II "release[d] solid waste constituents
[which] impacted the groundwater in the uppermost aquifer
beneath the facility." The "single plume of impacted
24
groundwater" contained two prongs, one of which extended onto
the Royals' property and impacted the Park's water supply wells.
According to the NES, the groundwater contamination was caused
by both landfill gas and leachate. Expert testimony established
that leachate is formed when rainwater dissolves the "soluble
components in [the] waste." One of the expert witnesses also
explained that landfill gas can contaminate groundwater through
landfill gas condensation on the soil being carried downward by
rainwater, movement of landfill gas to areas of lower pressure
where it then contacts the groundwater, or rainwater's absorbing
landfill gas when it comes into contact with it. This natural
movement of leachate and landfill gas directly into the
groundwater was possible because Phase II was not required to
have a bottom liner. Additionally, the migration of the
northern prong of the plume was "contrary to the expected
groundwater flow direction based on the potentiometric surface
geometry."
These occurrences fall squarely within the ambit of the
VWMA and SWMR. That is, the VWMA and SWMR extensively govern
the operation of a solid waste disposal facility and impose
requirements designed to protect groundwater and to prevent
seepage of leachate and landfill gas into the groundwater.
Even though Phase II was closed in 1995, the County was
required to install and maintain "a groundwater monitoring
25
system that [was] capable of determining [Phase II's] impact on
the quality of groundwater in the uppermost aquifer at the
[Landfill's] boundary during the . . . postclosure care period."
9 VAC § 20-81-250(A)(2)(a). Indeed, the Notice of Violation
issued by DEQ to the County asserted that the County's
groundwater monitoring system for the closed Phase II did not
ensure detection of contaminated groundwater in the uppermost
aquifer at the northern boundary between the Landfill and the
Royals' property.
In addition to maintaining a groundwater monitoring system
after closure of a solid waste disposal facility, the SWMR also
require the owner or operator of a landfill to maintain both the
leachate collection system and the landfill gas monitoring
system, as applicable, during the postclosure period. That
period is "a minimum of 10 years for sanitary landfills that
ceased to accept wastes before October 9, 1993" and "a minimum
of 30 years" for those that "received wastes on or after October
9, 1993." 9 VAC § 20-81-170(B)(2).
Given the specific and all-embracing coverage under the
VWMA and SWMR of the occurrences at issue in this case, we
conclude that the General Assembly intended such occurrences to
be governed exclusively by the VWMA. Cf. City of Lynchburg v.
Dominion Theatres, Inc., 175 Va. 35, 43, 7 S.E.2d 157, 160
(1940) (legislation manifesting the "intention to occupy the
26
entire field [was] found in the very statutes themselves when
considered as a whole"). We thus disagree with the trial
court's conclusion that the Oil Discharge Law applies to the
specific groundwater contamination in this case. Simply put,
the Oil Discharge Law does not contemplate the passive, gradual
seepage of leachate and landfill gas into groundwater beneath a
solid waste disposal facility.
The Oil Discharge Law falls under the authority of the
Water Control Board, rather than the Waste Management Board, and
contains entirely different procedures in the event of a
discharge of oil. 19 See Code §§ 62.1-44.34:19, -44.34:20. Upon
a discharge of oil, the person or operator responsible must
notify immediately the Water Control Board, implement any
applicable oil spill contingency plan, and take action to
contain and clean up the discharge. Code §§ 62.1-44.34:19, -
44.34:18(B). Unlike many oil discharges, the groundwater
contamination in this case, whenever it initially occurred, was
not immediately known. It became known years after Phase II was
closed as a result of the continued groundwater monitoring
required by the SWMR. Only after testing revealed statistically
significant increases of constituents in the Monitoring List
19
Both the State Water Control Board, see Code § 62.1.44.7,
and the Department of Waste Management, see Code § 10.1-1401,
are within the DEQ. Code § 10.1-1183.
27
above the previously established GPS was the County required to
notify DEQ and implement a corrective action program. 9 VAC
§ 20-81-250(B)(2)(b)(1); see also 9 VAC § 20-81-260(A).
Most striking, however, is the contrast between the
extensive regulations under the VWMA governing a solid waste
disposal facility's groundwater monitoring and leachate control
and the lack of any regulations under the Oil Discharge Law that
are applicable to a such a facility. If the General Assembly
had intended the Oil Discharge Law to apply to occurrences such
as those in this case, regulations governing the seepage of
"liquid hydrocarbons regardless of specific gravity" via
leachate and landfill gas into groundwater would be in place.
Code § 62.1-44.34:14.
The Royals urge this Court to focus only on Code § 62.1-
44.34:18 and can point to no other provision of the Oil
Discharge Law that applies to the County's operation of the
Landfill. Because the meaning of "person" as used in that
statute includes a "governmental unit," they argue, the County
is subject to liability in this case. The Royals are correct
that the County comes within the meaning of the term "person."
See Code § 62.1-44.34:14. But citing the meaning of "person"
does not respond to the question posed by the peculiar facts in
this case: whether the contamination of groundwater by the
passive, gradual seepage of leachate and landfill gas falls
28
within the purview of the Oil Discharge Law or is governed
solely by the VWMA. 20 We must answer that question without
stripping the liability provision, Code § 62.1-44.34:18, from
the larger legislative context in which the General Assembly
placed it. See, e.g., Shivaee v. Commonwealth, 270 Va. 112,
124, 613 S.E.2d 570, 577 (2005) (applicability of statute was
clear when read in context of other provisions in the same act).
Based on the examination of these two statutory schemes, we
conclude that the Oil Discharge Law does not apply to the
contamination of groundwater as it occurred in this case, i.e.,
by the passive, gradual seepage of leachate and landfill gas
from Phase II into the groundwater beneath it. Thus, we will
reverse the judgment of the trial court holding the County
liable under the Oil Discharge Law.
That conclusion, however, does not end our analysis. As
stated above, the trial court granted summary judgment, finding
the County liable under both the Oil Discharge Law and inverse
condemnation claims asserted by the Royals. Citing this, the
Royals contend that based on the County's liability for inverse
condemnation alone, which is not challenged on appeal, they are
entitled to the jury's award of damages even if the trial court
20
Nor is the question answered by the provision in the
County's permit to operate the Landfill, stating that
"[c]ompliance with the terms of this permit does not constitute
a defense to . . . any other law or regulation." See also Code
§ 10.1-1408.1(F).
29
erred by holding the County liable under the Oil Discharge Law.
The County, meanwhile, asserts the Royals failed to proceed on
their inverse condemnation claim at the jury trial on the issue
of damages.
At the commencement of that jury trial, the trial court
instructed the jury that it had granted summary judgment in
favor of the Royals against the County on the issue of liability
under both the inverse condemnation claim and the discharge of
oil claim. Following the presentation of evidence, the Royals
only offered one instruction on damages (Instruction 1). That
instruction read:
In determining the damages to which the
plaintiff is entitled, if any, you should
consider any of the following which you believe
by the greater weight of the evidence was caused
by the defendant:
(1) Any damage to property, real or
personal;
(2) Any loss of income;
(3) Any loss of the means of producing
income; or
(4) Any loss of the use of the damaged
property for recreational, commercial,
industrial, agricultural or other reasonable
uses.
This instruction mirrors almost verbatim the Oil Discharge
Law's damages provision. Code § 62.1-44.34:18(C)(4). That
statute authorizes damages for "injury or damage to person or
property, real or personal, loss of income, loss of the means of
30
producing income, or loss of the use of the damaged property for
recreational, commercial, industrial, agricultural or other
reasonable uses." Id. The similarity of language makes
apparent that Instruction 1 pertained to the Royals' claim under
the Oil Discharge Law, not their inverse condemnation claim.
Furthermore, Instruction 1 does not contain the proper
measure of damages for inverse condemnation. "The correct
measure of damages, in all [cases for damaging or taking without
just compensation], is undoubtedly the diminution in value of
the property by reason of the change, or the difference in value
before and after the change." Town of Galax v. Waugh, 143 Va.
213, 229, 129 S.E. 504, 509 (1925); see Richmeade, L.P. v. City
of Richmond, 267 Va. 598, 603, 594 S.E.2d 606, 609 (2004)
(measurement of damages for inverse condemnation is "based on a
decline in the value of the subject property"). Instruction 1's
phrase "[a]ny damage to property, real or personal" does not
necessarily mean only "diminution in value."
In this case, the former could encompass the replacement
value of the contaminated groundwater, about which one of the
Royals' expert witnesses testified. The witness opined that the
replacement cost of the contaminated groundwater that was the
source of drinking water to the Park residents was $2 million.
Diminution in value of real property is not replacement value.
Given the difference between Instruction 1 and the proper
31
measure of damages for inverse condemnation, the jury's award of
damages was limited to the Royals' claim under the Oil Discharge
Law. Therefore, contrary to the Royals' contention, there is no
independent basis for the jury's damage award to which the
County failed to assign error on appeal. See United Leasing
Corp. v. Thrift Ins. Corp., 247 Va. 299, 308, 440 S.E.2d 902,
907 (1994) (no relief on appeal if appellants fail to assign
error to an independent ground adopted by the trial court for
its ruling).
The Royals' failure to offer a jury instruction addressing
the measure of damages for their inverse condemnation claim is
also evident from a post-trial colloquy between the trial court
and the parties. After trial, the County moved to amend the
final order to reflect that the Royals' inverse condemnation
claim did not go to the jury. The Royals maintained, as they do
here, that Instruction 1 covered inverse condemnation damages.
The trial court disagreed, stating that if it had been an
inverse condemnation case, the court would have instructed the
jury that it could "award the [Royals] damages for the
difference between the value of the property before the taking
and the value after the taking." Instruction 1, the trial court
stated, was not "put in those terms." The trial court
concluded:
32
[T]he [c]ourt gave only the damage instruction
under the [Oil Discharge Law] because that's what
the evidence supported [and] had the instruction
been offered . . . there's probably a good chance
that the [c]ourt would not have sent that issue
to the Jury. I sent the issue to the Jury that
the evidence supported.
This colloquy confirms what is already apparent: the Royals
pursued only their claim under the Oil Discharge Law at the jury
trial on the issue of damages.
In sum, the Royals abandoned their inverse condemnation
claim by offering Instruction 1 as the sole damages instruction.
Although the trial court, in its summary judgment ruling, found
the County liable under inverse condemnation, Instruction 1 did
not encompass the proper measure of damages for that claim. As
the law of this case, Instruction 1 binds both this Court and
the Royals in this appeal. See Wintergreen Partners, Inc. v.
McGuireWoods, LLP, 280 Va. 374, 379, 698 S.E.2d 913, 916 (2010).
Therefore, having reversed the trial court's judgment holding
the County liable under the Oil Discharge Law, there is no basis
on which the Royals can pursue their inverse condemnation claim
or retain the jury's award of damages.
33
III. CONCLUSION
Because we conclude that the trial court erred in awarding
summary judgment to the Royals and finding the County liable
under the Oil Discharge Law, we will reverse the trial court's
judgment. Further, because there is no unchallenged,
independent basis for the jury's award of damages, we will enter
final judgment for the County.
Reversed and final judgment.
JUSTICE POWELL, with whom JUSTICE LEMONS joins, dissenting.
I respectfully disagree with the majority's conclusion that
the State Water Control Law, Code §§ 62.1-44.2 through -44.34:28
(the Water Control Law), specifically Code § 62.1-44.34:18(C) of
the "Discharge of Oil into Waters" Law, Code §§ 62.1-44.34:14
through -44.34:23 (the Oil Discharge Law), does not apply to the
leachate contamination at issue in this case.
Here, the circuit court found that the County admitted that
benzene is a "pure liquid hydrocarbon." 1 The circuit court
1
Although it does not appear from the parties' admissions
that the County specifically admitted that benzene was a "pure
liquid hydrocarbon," the County did not assign error to this
finding and as such, we cannot disturb that finding on appeal.
Rule 5:17(c)(1)(i). The County further admitted that benzene is
a hydrocarbon and an aromatic hydrocarbon. Moreover, benzene is
a "colorless, liquid, inflammable, aromatic hydrocarbon . . . ."
2 Charles K. Bradsher, Benzene, McGraw-Hill Encyclopedia of
Science & Technology 695 (10th ed. 2007)(emphasis added); see
also Webster's Third New International Dictionary 205
34
stated in its letter opinion, "on the basis of benzene alone
being in the contaminated groundwater, the County is liable for
any damages to the property of the Royals under the provisions
of Code § 62.1-44.34:18(C)." Therefore, I would affirm the
ruling for the following reasons: 1) the Oil Discharge Law by
its terms demonstrates its broad scope through its stated
purpose and exceptions, 2) the plain reading of the Code
captures the facts at issue here, 3) the County's "CERCLA
petroleum exception" argument is not preserved, and 4) if the
admission of Dr. Vittorio Bonomo's testimony as to “the damages
. . . that the Royals have suffered as a result of the
contamination” was error, it most certainly was harmless.
SCOPE OF THE OIL DISCHARGE LAW
Although Virginia has not addressed the issue of whether
the Water Control Law applies to landfills that are also
governed by the VWMA and the SWMR, there is nothing in the
statutory scheme of the Water Control Law, or the Oil Discharge
Law specifically, that precludes the application of these laws
to the facts presented here. Indeed, the contrary is true. The
expressed purpose of the Water Control Law is to
(1) protect existing high quality state waters
and restore all other state waters to such
condition of quality that any such waters will
(1993)(defining "benzene" as "a colorless volatile flammable
toxic liquid aromatic hydrocarbon . . . .")
35
permit all reasonable public uses and will
support the propagation and growth of all aquatic
life, including game fish, which might reasonably
be expected to inhabit them; (2) safeguard the
clean waters of the Commonwealth from pollution;
(3) prevent any increase in pollution; (4) reduce
existing pollution; (5) promote and encourage the
reclamation and reuse of wastewater in a manner
protective of the environment and public health;
and (6) promote water resource conservation,
management and distribution, and encourage water
consumption reduction in order to provide for the
health, safety, and welfare of the present and
future citizens of the Commonwealth.
Code § 62.1-44.2. The statutory scheme specifically states that
"[t]his Chapter is intended to supplement existing laws and no
part thereof shall be construed to repeal any existing laws
specifically enacted for the protection of health . . . ." Code
§ 62.1-44.6 (emphasis added).
The scope of the Act is broad. This Court has previously
considered the scope of the Water Control Law. Commonwealth ex
rel. State Water Control Board v. County Utilities Corp., 223
Va. 534, 539, 290 S.E.2d 867, 870 (1982). There, in the context
of a sewage treatment plant, we stated:
The powers and duties of the Board are to be
found in the State Water Control Law, c. 3.1 of
Title 62.1 of the Code, (§ 62.1-44.2, et seq.).
The Board's declared purposes are to reduce
existing pollution, prevent increased pollution,
and safeguard the clean waters of the State from
pollution. § 62.1-44.2. It is required to make
appropriate studies of water quality and, after
due notice and hearing, to establish and enforce
standards of water quality. § 62.1-44.15. The
discharge of wastes into the State waters is to
be limited by certificates issued by the Board,
36
and subject to the conditions contained therein.
Such certificates may be modified, amended, or
revoked by the Board from time to time, after due
notice and hearing. § 62.1-44.5 and § 62.1-
44.15(5). Sewage treatment is regulated by
Article 4 (§ 62.1-44.18, et seq.), which provides
that such treatment plants shall be under the
joint supervision of the Board and the State
Department of Health. The Board has the power to
amend, revoke, and modify discharge certificates
to assure compliance with its established water
control standards. § 62.1-44.19.
Id.
While not binding on this Court, I find a subsequent
decision from the United States District Court for the Eastern
District of Virginia that considered these code sections in
deciding whether strict liability extended to the discharge of
oil onto private lands, Gollobin v. Air Distributing Co., 838
F. Supp. 255 (E.D. Va. 1993), persuasive as to the expansive
reach of the Oil Discharge Law. There, the District Court
looked at the history of this legislation and noted that
[u]ntil 1990, liability for the discharge of oil
was found in Virginia Code §§ 62.1-44.34:2 & :3,
which only prohibited "a discharge of oil into
state waters . . ." and "the discharge of oil
into or upon the waters of the Commonwealth."
Then, in 1990, the General Assembly enacted
§ 62.1-44.34:14, et. seq., to amend and replace
§§ 62.1-44.34:2 & :3, which were repealed. The
amended version of the statute expands the reach
of the existing legislation beyond state waters
to include lands and storm drain systems.
Specifically, the amended statute declares that
"the discharge of oil into or upon state waters,
lands, or storm drain systems within the
Commonwealth is prohibited." Virginia Code
§ 62.1-44.34:18.
37
Id. at 256-57 (emphasis added). The Court concluded that "the
statute's purpose is to provide the Commonwealth of Virginia or
any political subdivision thereof or any person with a remedy
when a discharge of oil causes harm to human health or welfare,
harm to the environment, or damage to personal or real
property." Id. at 258.
As further evidence of the broad scope of the law, the
General Assembly chose to exempt several categories of
unintentional discharges of oil and did not include landfills
among these exemptions. Code § 62.1-44.34:23(A). To conclude
that this law does not apply would add landfills to the
exemptions delineated by the General Assembly. "Courts cannot
'add language to the statute the General Assembly has not seen
fit to include.' " Jackson v. Fid. & Deposit Co., 269 Va. 303,
313, 608 S.E.2d 901, 906 (2005) (quoting Holsapple v.
Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003)).
The maxim expressio unius est exclusio alterius
applies when mention of a specific item in a
statute implies that omitted items were not
intended to be included. Turner v. Wexler, 244
Va. 124, 127, 418 S.E.2d 886, 887 (1992). "The
question here is not what the legislature
intended to enact, but what is the meaning of
that which it did enact. We must determine the
legislative intent by what the statute says and
not by what we think it should have said." Id.
(quoting Carter v. Nelms, 204 Va. 338, 346, 131
S.E.2d 401, 406-07 (1963)).
38
Virginian-Pilot Media Cos. v. Dow Jones & Co., 280 Va. 464, 468-
69, 698 S.E.2d 900, 902 (2010).
Moreover, I note that the State Water Control Board
("SWCB") has a regulation that covers landfills. 9 VAC § 25-
151-190. This regulation defines "leachate" as a "liquid that
has passed through or emerged from solid waste and contains
soluble, suspended, or miscible materials removed from such
waste[,]" 9 VAC § 25-151-190(C), and specifically requires
inspections of inactive landfill sites, such as the one at issue
here. 9 VAC § 25-151-190(D)(2)(c)(2). Although this regulation
does not specifically relate to the situation presented by this
case, it is instructive in demonstrating that monitoring
landfills is within the purview of the SWCB.
APPLICATION OF THE OIL DISCHARGE LAW TO THIS CASE
Given that I would conclude that the Oil Discharge Law does
apply to the situation presented in this case, I now turn to
whether Campbell County is liable to the Royals under the Oil
Discharge Law. Code § 62.1-44.34:18(C)(4) prohibits
[a]ny person discharging or causing or
permitting a discharge of oil into or upon state
waters, lands, or storm drain systems within the
Commonwealth, discharging or causing or
permitting a discharge of oil which may
reasonably be expected to enter state waters,
lands, or storm drain systems, or causing or
permitting a substantial threat of such discharge
and any operator of any facility, vehicle or
vessel from which there is a discharge of oil
into or upon state waters, lands, or storm drain
39
systems within the Commonwealth, or from which
there is a discharge of oil which may reasonably
be expected to enter state waters, lands, or
storm drain systems, or from which there is a
substantial threat of such discharge, shall be
liable to: . . . . [a]ny person for injury or
damage to person or property, real or personal,
loss of income, loss of the means of producing
income, or loss of the use of the damaged
property for recreational, commercial,
industrial, agricultural or other reasonable
uses, caused by such discharge.
Under the Oil Discharge Law,
"Discharge" means any spilling, leaking, pumping,
pouring, emitting, emptying or dumping.
"Facility" means any development or installation
within the Commonwealth that deals in, stores or
handles oil, and includes a pipeline.
"Oil" means oil of any kind and in any form,
including, but not limited to, petroleum and
petroleum by-products, fuel oil, lubricating
oils, sludge, oil refuse, oil mixed with other
wastes, crude oils and all other liquid
hydrocarbons regardless of specific gravity.
. . . .
"Person" means any firm, corporation, association
or partnership, one or more individuals, or any
governmental unit or agency thereof.
Code § 62.1-44.34:14.
Based on the circuit court's factual finding that benzene
was a “liquid hydrocarbon[,]” I believe that reversal is
improper. Under the clear definitions of the Oil Discharge Law,
the County clearly qualifies as a "person." Code § 62.1-
44.34:14. A "discharge" includes both "leaking" and "emitting".
40
Id. The circuit court's factual finding that the parties agreed
that benzene was liquid hydrocarbon places the substance found
to have been emitted from the Campbell County landfill within
the Oil Discharge Law's definition of "oil." The County argues
that the landfill is not a "facility" within the meaning of the
Act. Because the statute is written in the disjunctive, I think
that this argument is without merit. The "operator" of a
"facility" is merely one type of violator, in addition to
"person" under this Code section. Thus, I would hold that the
County is liable under the Oil Discharge Law.
CAMPBELL COUNTY'S REMAINING ASSIGNMENTS OF ERROR
Because I would affirm the circuit court's application of
the Oil Discharge Law to the Campbell County landfill, I must
now address Campbell County's remaining assignments of error: 1)
the CERCLA petroleum exclusion contained in 42 U.S.C. § 9658
applies, 2) the circuit court erred in overruling the County's
motion to strike Dr. Vittorio Bonomo's testimony as speculative
and 3) the circuit court erred in denying the County's motion to
set aside the verdict based on "speculative testimony" that the
park was worthless.
Campbell County argues that the "CERCLA petroleum
exclusion" specifically bars the contaminants at issue here from
being covered by CERCLA, which would otherwise preempt state law
by delaying the commencement of a state statute of limitations
41
until the plaintiff knows, or reasonably should have known, of
the contamination damage. The County acknowledges that this
argument was not specifically raised in the circuit court.
However, the County argues that because both the County and the
Royals cited First United Methodist Church v. United States
Gypsum Co., 882 F.2d 862, 866-69 (4th Cir. 1989), in their
briefs to the circuit court, this preserves the issue for our
consideration. As the issue in First United Methodist Church
dealt with CERCLA's applicability to asbestos-removal actions,
see 882 F.2d at 866-69, it has no applicability to the CERCLA
petroleum exclusion. Moreover, beyond citing to the case, the
parties made no argument as to how it applied to the facts in
this case. For that reason, the County's petroleum exclusion
argument is not preserved. Accordingly, I would conclude that
Rule 5:25 bars our consideration of this issue.
Turning to the County's evidentiary arguments, even if
portions of Dr. Bonomo’s testimony were speculative and not
based on specific, articulable facts, I believe that any error
in allowing the testimony was harmless. 2
In Clay v. Commonwealth, 262 Va. 253, 546 S.E.2d
728 (2001), this Court adopted the following test
2
The County also argues before this Court that the
testimony from Dr. Bonomo was prejudicial. The County never
argued below that the testimony was prejudicial and, therefore,
I would also hold that under Rule 5:25, we may not consider that
argument.
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for non-constitutional harmless error: "If, when
all is said and done, the conviction is sure that
the error did not influence the jury, or had but
slight effect, the verdict and the judgment
should stand . . . . But if one cannot say, with
fair assurance, after pondering all that happened
without stripping the erroneous action from the
whole, that the judgment was not substantially
swayed by the error, it is impossible to conclude
that substantial rights were not affected . . . .
If so, or if one is left in grave doubt, the
conviction cannot stand." Id. at 260, 546 S.E.2d
at 731-32 (quoting Kotteakos v. United States,
328 U.S. 750, 764-65 (1946)).
Atkins v. Commonwealth, 272 Va. 144, 154, 631 S.E.2d 93, 98
(2006). Dr. Bonomo’s testimony did not add to the numerical
calculation of damages that was firmly established by other
experts testimony, and the testimony of another plaintiffs’
expert, Andrew Flynn, was substantially similar to Dr. Bonomo’s.
Therefore, I do not believe that the admission of such testimony
was reversible error. For the foregoing reasons, I would
affirm.
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