When rain falls on Hartford, soaks into the ground, and lifts petroleum vapors into homes, do the residents suffer a new injury or an old injury?
Madison County Circuit Judge Daniel Stack ruled in September that the injury is new, but he has decided to take another look at the question.
On Sept. 30, Stack denied a motion of Apex Oil and Sinclair Oil to dismiss them as co-defendants in a class action suit, Sparks vs. Premcor.
Apex and Sinclair, former owners of the Premcor Refinery, had argued that the statute of limitations barred claims against them. They moved Stack to reconsider.
Stack granted the motion and heard arguments Oct. 26.
Attorney Bill Knapp told Stack that Apex disposed of all interest in the refinery in 1988.
Knapp said that in a case involving the Danville landfill, a court dismissed a private firm that had formerly operated the landfill.
Knapp told Stack to distinguish between a continuing tort and a continuing injury.
“Apex Oil Company could not have engaged in tortuous conduct at this site after 1988,” he said.
Sinclair Oil attorney Joe Nassif said, “We join this motion.” He cited more cases.
Plaintiff attorney Kevin Davidson said Sinclair Oil did not file a motion. He said, “We don’t know their argument.”
Nassif said his argument was the same one he made Sept. 30.
Plaintiff attorney Teresa Woody said as long as a nuisance continues, the party who created it is responsible.
“There are four million gallons of gasoline under Hartford,” she said. “It comes up through these people’s floors of their homes.”
She said that at Danville’s landfill, pollution did not leach into groundwater every year. At Hartford, she said, “We contend that there is continuing release of these materials.”
She said Apex installed faulty vapor wells.
Knapp said Apex could put that issue to rest. He said, “We can establish without controversion, that is not our system.”
Davidson said vapors invade homes and retreat.
Knapp said, “That is a continuing effect. How can that be a new tortuous act for Apex when Apex has been off the property for 17 years? That’s not new conduct.”
Woody said vapors reach explosive levels and residents have to evacuate. “That is a new tort,” she said.
Stack said, “It is new water and old gas.”
Woody said, “It is coming up new for these people.”
Stack said a statute of limitations sometimes appears unjust. He said, “Sometimes people do not get a remedy because they waited too long.”
Nassif said, “We did not do anything new. What is the new leak that constitutes a tort?”
Stack said he would read newly cited cases, reread old ones, and make a decision.