Summary of a Recent
Judicial Development in
Environmental Law

Land Contamination Suit Barred by Statute of Limitations

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Harry Stephens Farms, Inc. v. Wormald Americas, Inc., Nos. 2:06CV00166 JMM, 2:07CV00278, 2007 WL 3217525 (E.D. Ark. Oct. 24, 2007), the United States District Court for the Eastern District of Arkansas granted the defendants' motion for summary judgment, holding that the plaintiffs knew or reasonably should have known of the contamination on its property and the source of the contamination no later than summer of 2002. Therefore, the plaintiffs' claim, filed on July 20, 2006, was time barred.

Background

The plaintiffs owned several hundred acres of farmland located adjacent to an industrial park. Id. at *1. In 1994, the plaintiffs' representative signed an access agreement with Cedar Chemical Company (Cedar) to permit Cedar's consultant to analyze and monitor groundwater on the farmland and drill test wells in conjunction with Cedar's investigation of the industrial park. Id. The plaintiffs claimed they never knew the purpose of the investigation. Id. The defendants claimed that Cedar's investigation was required as part of an agreement it reached with the Arkansas Department of Pollution Control and Ecology to investigate the conditions at its Cedar facility. Id. In July 2001, Ensafe, Inc. further investigated the contamination caused by the Cedar facility. Id. at *2. Once again, the plaintiffs denied having any knowledge of the investigation's purpose. Id. Subsequently, Cedar filed for bankruptcy in March 2002. Id. at *3. After Cedar filed its bankruptcy petition, the defendants alleged that the plaintiffs' representative asked Cedar whether the organization planned on fixing the plaintiffs' contaminated wells. Id. The plaintiffs denied Cedar's allegations. Id. Thereafter, the plaintiffs sued the defendants for contaminating their farmland. Id.

Arguments

The plaintiffs asserted that the defendants conducted operations at the chemical plant resulting in soil and water contamination of their property. The plaintiffs claimed that they did not become aware of the contamination until November 2004.

The defendants argued that the plaintiffs' claims were time barred by Arkansas's three-year statute of limitations.

Analysis and Holdings

In response to the defendants' motion for summary judgment, the plaintiffs' representative submitted a self-serving affidavit that contradicted his sworn testimony. Id. at *5. The defendants argued that the affidavit should not be considered, and that the contradiction between the representative's sworn deposition and the affidavit did not create a genuine issue of material fact. Id. In a previous case, the court addressed a similar set of facts and held that "an affidavit filed by the plaintiff in opposition to a motion for summary judgment that directly contradicted the plaintiff's previous deposition testimony was insufficient to create a genuine issue of material fact . . . ." Id. (citing Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1363 (8th Cir. 1983)). After comparing the agent's sworn deposition to his sworn affidavit, the court reached the same conclusion after finding that they contradicted in a number of ways. Id. Additionally, Arkansas follows the discovery rule to determine when a cause of action for property damage accrues. Id. at *6. Under the discovery rule, the statute of limitations does not begin to run until the plaintiff knows, or reasonably should have known, that its land had suffered a remediable injury. Id.

Ultimately, the court held that the plaintiffs' representative knew or reasonably should have known of the contamination to the farmland and the source of the contamination as early as October 1994, but no later than the summer of 2002; therefore, the plaintiffs' claim was time barred, and the defendants' motion for summary judgment was granted. Id.

The case was decided on October 24, 2007.