Wednesday, June 01, 2005

What's left when cleanup is done?

In Hogan v. United States, a Sixth Circuit decision published on May 10, the court addressed one of those problems that lurks in environmental law but never seems to be directly addressed – whether the owner of contaminated property has sustained damage even after his property has been cleaned up. Indeed in Hogan, the question is never directly answered. In Hogan, the United States conceded that it had inadvertently sold Hogan radioactive thorium alloy that Hogan had intermixed with scrap metal and soil at his salvage yard. The cleanup of the property could not remove all of the thorium, and so the US left Hogan with a barrel in which he could place radioactive waste whenever he found it on his property. Unlike many radioactive materials, the “mag-thor” alloy on Hogan’s property did not pose a health threat unless inhaled, but there was nevertheless no dispute that there remained radioactive waste on Hogan’s property. The district court, and the Sixth Circuit, both decided that despite the presence of this waste, Hogan was not damaged. Hogan argued that “’common sense and every day experience’ suggest that the remaining mag-thor ‘certainly would have some affect [sic] upon the purchase price.’” The Sixth Circuit acknowledged that “Hogan’s position has a certain intuitive appeal, [but] the evidence presented at trial persuaded the district court to the contrary.” Ultimately, this case like many turned on the burden of proof. Hogan had the burden, and he was unable to produce credible evidence that in the absence of a health threat the remaining mag-thor had caused damage.

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