Space Invaders

May 1, 2009
Air toxics or odors leaving your facility and entering your neighbor’s air space may now subject you to property devaluation claims.

By Jay Collert, CHMM, CET

Air toxics or odors leaving your facility and entering your neighbor’s air space may now subject you to property devaluation claims.

Afederal judge has ruled the presence of an air toxic in your neighbor’s air, despite being undetectable by odor to humans, can constitute a physical injury to property for purposes of a common law claim for property damage.

Air toxics are regulated by Maximum Achievable Control Technology (MACT) rules governing National Emission Standards for Hazardous Air Pollutants (NESHAPs) under the Clean Air Act and may present direct opportunities for VOC, SVOC and/or odor reduction or indirect opportunities in related wastewater treatment. MCAT rules are federal, but states have to at least match them.

In Gates v. Rohm and Haas Co. [No. 06-CV-01743 (E.D. Pa. July 30, 2008)], plaintiffs in this asserted class action sued on behalf of residents of the Village of McCollum Lake, IL, alleging not only statutory violations but also nuisance, trespass and negligence under common law of Pennsylvania and Illinois. As part of property damage claims, the plaintiffs alleged a “diminution in property value” due to the stigma resulting from vinyl chloride contamination in groundwater and air on their properties. According to the court, “[w]here the invading substance is a hazardous chemical, to demonstrate interference with the use and enjoyment of the property, a plaintiff must show either a physical invasion or an invasion by something otherwise perceptible, but not necessarily physical, like noises or vibrations.” Because plaintiffs presented sufficient evidence to suggest vinyl chloride is hazardous to human health, the court concluded they “need only show that vinyl chloride was and continues to be physically present on their properties” to sustain a claim for reduced property value. Moreover, it concluded “the exposure level need not necessarily present a health risk to make out a property damage claim.”

With this decision, any facility that has air toxics emissions may be at risk, regardless of the need for an air permit.

About the Author: Jay Collert is a nationally recognized environmental trainer and consultant with the Aarcher Institute of Environmental Training LLC, based in Houston, TX. Since 1994, he has focused on helping companies understand and comply with the complexities of environmental regulations. Contact: 281-256-9044, [email protected] or www.aarcherinstitute.com

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