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In this post, I want to provide an overview of some of the basic remedies available to you in the unfortunate event that your health or your home is threatened by environmental contamination.
In such cases, the odds can seem overwhelming. The DEP may be involved, but may not be addressing your needs or concerns (or may not be doing so expediently). There may be a politically connected real estate developer involved. It’s not an illusion that it is not an equal playing field.
Whether it is your property that is threatened, your health, or both, the courts continue to be a stalwart defender of your rights.
Nuisance is one of the oldest torts recognized by Pennsylvania courts. A nuisance protects your right to enjoy your property without unreasonable interference. While a lot of statutes have been enacted to protect individuals’ property and health from the deleterious effects of pollution, often times you will have additional “common law” claims available to you, depending on the circumstances.
There are a number of statutory claims available to residents of Pennsylvania as well. The Solid Waste Management Act (SWMA) does not provide for a private cause of action, but allows individuals to intervene in an enforcement action brought by the DEP.
The Hazardous Sites Cleanup Act (HSCA) explicitly provides for what is known as a “citizen suit.” By authorizing citizen suits, the Pennsylvania legislature determined that affected individuals are in an equal or better position to enforce environmental regulations than the DEP. In other words, you do not need to wait for DEP in order to bring a citizen suit under HSCA. Likewise, if DEP happens to be involved in a particular case, that does not preclude your ability to bring a HSCA citizen suit.
In short, a HSCA claim may be available if you are at risk of personal injury, or your property is at risk of injury, due to the release of a “hazardous substance” (which is defined by the statute). You may be able to recover for your injuries, and for “response costs,” which can include costs of investigating, testing for, and assessing the presence of a hazardous substance as well as remediating its presence. Depending on the circumstances, you may be able to ask the court to stop, or “enjoin,” the release of a hazardous substance.
Citizen suits under other statutes (like the federal Resource Conservation and Recovery Act, or RCRA) may require you to provide notice to the government and/or the polluter before you can bring a claim. Notice provisions apply to New Jersey’s robust Environmental Rights Act (ERA), which allows you to enforce a violation of environmental statutes, regulations, or ordinances by asking a court to enjoin the violation. Because of the technical, scientific component often involved in environmental litigation, the ERA allows an individual to recover fees used for experts.
This is a very general overview, and not intended as legal advice. If you have questions, contact us.