Prepared by:
Theodore A. Feitshans
North Carolina State University
Published by: North Carolina Cooperative Extension Service
Publication Number: AG-441-1
Last Electronic Revision: April 1996 (JWM)
While agricultural activities may contaminate groundwater, other sources of contamination have historically been the focus of most regulation and litigation concerning groundwater. Recently, however, attention has begun to shift to agriculture. While incidents in which agricultural activities resulted in liability are not yet common, these incidents can be expected to increase as agriculture becomes more regulated and people become more aware of groundwater issues.
Persons responsible for groundwater contamination may be held liable - and responsible persons frequently are a much larger group than just those whose agricultural activities directly caused the contamination. Anyone providing goods or services to those engaged in agriculture is potentially liable, even someone who unknowingly purchases contaminated land. Furthermore, even creating the potential for groundwater contamination may result in liability, even if actual contamination does not occur.
Liability may be imposed through the action of a private party or a federal or state agency:
Liability takes many forms. Private lawsuits usually ask for money damages, an injunction (a court order that requires some modification of the defendant's behavior), or both. Courts have broad injunctive powers to prohibit planned or present activities and to require remedial action.
Federal and state agencies generally may seek all remedies available to private parties and, in addition, they can seek civil or criminal penalties. They may also take administrative (nonjudicial) action. Such actions give agencies broad latitude to impose civil monetary penalties and to require changes in the activities of those regulated.
Administrative actions are the route that governments most commonly use to impose liability. Such actions range from informal warnings for minor, first-time violations to formal administrative proceedings that resemble court actions.
Enforcement of groundwater quality protection laws continues to be primarily a state and local responsibility. Nonetheless, federal regulation of groundwater has become increasingly important over the past two decades. As a result, interactions, overlaps and even conflicts between federal and state regulation of groundwater have become increasingly important.
As a matter of policy, federal environmental legislation generally has favored a major state role. The U.S. Environmental Protection Agency (EPA) promotes this policy by delegating many responsibilities to states. Congress also has assigned some responsibilities directly to the states.
Among the many federal statutes that regulate groundwater, there are five major ones that relate to the determination of liability.
States are also encouraged to develop wellhead protection programs designed to protect groundwater supplying public water systems. Agricultural activities within wellhead protection zones may be affected by wellhead protection programs.
The CERCLA definition of responsible parties is broad. It includes not only those who produced and handled hazardous waste but also subsequent landowners who may not even be aware that their land is contaminated. Subsequent landowners may avoid liability only if they took adequate steps, such as an environmental site assessment, to detect hazardous waste on the land prior to purchase. The CERCLA definition of responsible parties includes individuals, such as farmers and landowners; private organizations, such as banks; units of state and local government; and even other units of federal government.
The application, handling and storage of pesticides registered under FIFRA are exempted from CERCLA coverage. Nonetheless, CERCLA cleanup liability may exist where unused portions of pesticides have been discarded improperly.
RCRA provides no exception for agricultural pesticide use. EPA has provided a limited exception, by regulation, for disposal of empty containers that held FIFRA-registered pesticides. Such containers must be triple rinsed and disposed of on the farmer's own land in a manner consistent with the pesticide label. Otherwise the exception does not apply. State law may further restrict farmers' disposal options.
Farmers who have underground fuel tanks with capacities of 1100 gallons or less are exempt from RCRA registration and financial responsibility requirements. The exemption, however, does not relieve farmers from cleanup liability. A farmer may be forced to pay for cleanup of soil and groundwater contaminated by a leaking tank. So long as the tank is on property owned by the farmer, these costs may be imposed without regard to whether the farmer caused the leak. Even an abandoned leaking tank, unknown to the farmer who currently owns the land, may be a source of liability.
Citizen suit provisions of federal environmental statutes provide opportunities for private parties to bring lawsuits against polluters. The creation of such provisions has been based on the policy judgement of Congress that private parties should have the right to require enforcement of environmental laws where regulatory agencies have failed to provide it. Citizen suit provisions generally allow both monetary awards and injunctive relief. SDWA, CERCLA and RCRA all contain citizen Suit provisions.
RCRA and CERCLA also contain criminal provisions that may apply to cases of groundwater contamination. To obtain a conviction the government needs only to show that prohibited acts were committed knowingly, or at least that they were not committed by mistake or through inadvertance.
Businesses or others who store or use hazardous chemicals must provide a material safety data sheet on each such chemical to both the local emergency planning committee and the fire department with jurisdiction over the area in which the facility is located, as well as to the state emergency response committee. Releases of any hazardous chemicals must be reported according to procedures established by regulation. The regulations provide for numerous exceptions to the Act's reporting requirements, including a limited exemption for agriculture. EPA has published guidance specifically for farmers.
Federal law creating liability for groundwater contamination is not unified and therefore is often ambiguous and confusing. Nonetheless, the federal government has brought suit against owners of hazardous waste sites, and litigation may resolve many of the issues that various federal statutes and regulations have left unclear.
Liability for groundwater contamination may arise under state law from two sources: common law or state statutes. State statutes may be enacted independently or as a result of federal mandate or delegation. Common law, the oldest source of liability, continues to be important. Common law is judge-made or case law, received by the states from England, that has evolved over time in each state as additional cases have been decided.
Many state statutes affecting groundwater have been enacted as a result of either federal mandate or delegation. Some states choose to regulate only at the minimum level required by federal mandate or delegation, while others go far beyond the minimum. In addition, some states have enacted groundwater statutes that are unrelated to federal mandates or delegations. Some of these statutes extend liability, while others limit it.
Liability for groundwater contamination may arise under states' common law of tort (a civil wrong) under a variety of theories, including intent, negligence and strict liability. Liability also may be based on nuisance or products liability.
An intentional tort is defined as an act, intended by the defendant, that was the legal cause of an injury to either the person, property or reputation of the plaintiff. The plaintiff need not prove actual damages; punitive or exemplary damages may be awarded.
Trespass is an intentional tort under which liability for groundwater contamination may arise. An essential element of trespass is that the property of the plaintiff must have been invaded physically as a result of some intentional act by the defendant, such as the defendant disposing of toxic chemicals on his or her own land knowing that it would invade the plaintiff's groundwater. Since a plaintiff may prevail in trespass and recover punitive damages without showing actual damages, a defendant who contaminated another's groundwater theoretically could be forced to pay monetary damages even though the contamination caused no demonstrable harm.
Negligence is probably the common theory under which liability for groundwater contamination is likely to arise. To establish a case in negligence, a plaintiff must show the following:
Among the most difficult aspects of establishing the tort of negligence is proving causation. Even if it can be proven that groundwater was contaminated as a result of a defendant's negligent acts, it may not be possible to demonstrate that the contamination caused the alleged damages. The effects of low levels of exposure are not known for most toxic chemicals. Moreover, the latency period for many toxic chemicals, particularly carcinogens, may be 20 to 30 years, and the impacts of exposure to one particular chemical may be difficult to separate from the impacts of exposure to other environmental hazards. Thus, it may not be possible to establish any causal link between a defendant's negligent acts and the damages suffered by the plaintiff.
A strict liability theory may be used when the defendant's activities were ultra-hazardous. Imposition of strict liability represents a policy judgement by society that an activity, while having sufficient value that it should not be completely prohibited, is so hazardous that the one engaging in it should bear the entire risk of loss. Examples of ultra-hazardous activities include blasting, keeping dangerous animals and, under certain conditions, the use of pesticides in agriculture.
Nuisances are categorized into public and private nuisances. Public nuisances are generally civil or criminal offenses prosecuted by the state to prevent damage to the health, welfare or morals of the general population. Some cases of groundwater contamination may be prosecutable as public nuisances. A private nuisance action may be brought under the theories of negligence, intent or strict liability. All private nuisances involve an unreasonable interference with the plaintiff's enjoyment of his or her land. Unlike trespass, nuisance requires no physical invasion of the plaintiffs property.
Products liability is unlikely to be a source of liability for the individual farmer. It may, however, be a source of liability for manufacturers and suppliers of pesticides found in contaminated groundwater. Depending on the state, as many as five theories may be available to the plaintiff attempting to bring a products liability suit. Along with intent, negligence and strict liability, the fourth basis for establishing products liability is breach of implied warranties of merchantability and fitness. A suit based upon such a theory might allege that it is implied in warranties made upon sale of a pesticide that such a product would not contaminate groundwater if used according to label directions.
The fifth basis for establishing products liability is breach of express warranties and misrepresentation. A suit based upon such a theory could arise when a seller of a pesticide expressly stated that use of the product would not result in groundwater contamination.
States have modified common law dramatically through legislation. Although much legislation has been in response to federal mandate or delegation, many states have enacted liability legislation that is far more comprehensive than any regulation mandated or delegated by the federal government.
The U.S. General Acounting Office studied groundwater protection legislation in the 50 states, the District of Columbia, and six commonwealths and territories. According to its 1988 report, no state lacked legislation to protect groundwater, and 15 states had specific groundwater protection legislation. Many states have adopted groundwater standards: 26 states use numeric standards that set maximum contaminant levels for specific contaminants; 38 states use narrative standards; 23 states use both; and 16 states have none. Many states, but by no means all, base their groundwater standards on EPA's standards for 34 contaminants and characteristics of drinking water.
Some states have enacted legislation that expands liability for contamination of groundwater well beyond that which existed under common law. Some states also have enacted legislation designed to limit liability of agricultural producers who contaminate groundwater with pesticides.
Many states have enacted right-to-farm legislation that limits the ability of plaintiffs to win nuisance suits by providing farmer-defendants with an affirmative defense. Such right-to-farm legislation generally requires that the defendant's farm predate the onset of the plaintiff's activities that have been disturbed; that the farm has been operated according to good farming practice; and that the operation of the farm was neither negligent nor in violation of water pollution laws. Otherwise the farm is denied the protection of the statute.
Liability for groundwater contamination may arise under a state's common law, statutes or both. All states have enacted legislation regulating groundwater. While the general trend in state legislation has been to expand liability, some legislatures have recognized that this may impose undue hardships upon agricultural producers. Therefore, some states have limited the liability of agricultural producers either directly, through exemption legislation, or indirectly, through right-to-farm laws. Conformity with good management practices is almost always a prerequisite to qualifying for such limited liability.
Over the past two decades, both federal and state governments have enacted much legislation affecting liability for contamination of groundwater. However, neither the states nor the federal government has developed fully comprehensive and integrated approaches to groundwater protection
Merely complying with all existing laws and regulations is no longer enough. Future legislation may impose cleanup liability for contamination resulting from activities that were entirely legal at the time they occurred. Careful evaluation of all activities through an environmental audit is an excellent way to identify practices that may generate liability. Use of such audits, along with appropriate followup and corrective action, can greatly reduce the potential for civil liability and virtually eliminate all potential for criminal liability.
Given the confusion and complexity in the law, it is difficult for agricultural producers to assess whether they will be found liable for acts that contaminate groundwater. Therefore, minimizing the likelihood that groundwater contamination will occur is the best strategy for avoiding liability.
The unedited version of the paper on which this leaflet is based appears in the March-April 1990 issue (Volume 45, Number 2) of the Journal of Soil and Water Conservation.
Mr. Feitshans is now a member of the North Carolina State Bar and an Extension Specialist in the Department of Agriculture and Resource Economics.
This leaflet is not intended to constitute the provision of legal advice or to provide a comprehensive statement of law. Those who believe that they have a legal problem are urged to consult their own attorneys.
"Superfund (SARA) and Farmers: How the Emergency Planning and Community Right-to-Know Act Affects Agriculture and Farmers." 1988. U.S. Environmental Protection Agency.
Groundwater Quality: State Activities To Guard Against Contaminants. 1988. U.S. General Accounting Office, Washington D.C.
Superfund: Interim Assessment of EPA's Enforcement Program. 1988. U.S. General Accounting Office, Washington, D.C.
Charles Abdalla, Penn State University
David Allee, Cornell University
Leon Danielson, North Carolina State University
Distributed in furtherance of the Acts of Congress of May 8 and June 30, 1914. Employment and program opportunities are offered to all people regardless of race, color, national origin, sex, age, or disability. North Carolina State University, North Carolina A&T State University, U.S. Department of Agriculture, and local governments cooperating.
AG 441-1