ENFORCE35100

• Permit No: C1981013
• IBM Index Class Name: Enforcement
• Doc Date: 4/19/2001
• Doc Name: PREHEARING BRIEF OF BASIN RESOURCES INC
• Violation No.: CV2000009
• Media Type: D
• Archive: No

653 N.E.2d 89
(Cite as: 653 N.E.2d 89, *93)
of the cost of repair and evidence of the fair market
value before the causative event and the fair market
value after repair, where repair wi[I not restore the
... property !o i!s fair market value before the
causative event.
Id. at 599 (emphases added).
[4] We see no reason why the Wiese-CMC
combination or hybrid theory of recovery, which
utilizes both the cost of repair and any reduction in
the property's value after repair, should not also apply
to environmental damage to real property.
Generally, the proper measure of a plaintiffs damages
"must be flexible enough to fit all circumstances." Id.
at 597. if the plaintiff can demonstrate that repairs to
real property fail to restore the land to its former
value, recovery of damages for the property's
reduction in value is the only measure of damages
which will fully compensate the landowner for his
loss. More specifically, in the context of
environmental contamination of land a party should
be entitled to recover as damages any proven
reduction in the fair market value of real property
remaining after remediation, i.e., the remaining loss
damages. See /n re Paoli, 35 F.3d at 797; Wiese-
GMC, 626 N.E.2d at 599.
*94 The fundamental measure of Terra's damages is
any reduction in the fair market value of Terra Site
caused by Kraft. See Wiese-GMC, 626 N.E.2d at
599. If as Terra contends the value of Terra Sile
after remediation was less than its value before
discovery of PCB cootamination, the property was
permanently damaged. Thus, Terra would be
entitled to compensation for any "remaining loss" in
the property~s fair market value after remediation in
that, under such circumstances, remediation would be
inadequate to compensate Terra fully for its loss.
[5] We cannot agree with Kraft's argument that its
remediation of Terra Site necessarily relieved it of
any further liability to Terra for common law
damages. CERCLA serves two essential purposes:
(1) to provide a swift and effective response [o
hazardous waste sites and (2) to place the cost of that
response on [hose responsible for creating or
maintaining the hazardous condition. United States v.
Mesico Feed & Seed Co. (8th Cir.1992), 980 F.2d
478, 486. CERCLA is not intended to exclude other
remedies available to an injured landowner but
explicitly provides [hat "[n]othing m this chapter shall
affect or modify in any way the obligations of
liabilities of any persons under other Federal or Slate
Page 5
/arv, including common law, with respect to the
releases of hazardous substances or other pollutants
or contaminants...." [FNS] 42 U.S.C. § 9652(d)
(emphasis added); see Croprvel! Leasing Co. v. NMS,
Inc. (5th Cir.1993), 5 F.3d 899, 901. Restoration
under CERCLA is not, as a matter of law, Terra's
exclusive remedy Cor damage to its land. See
Cropwel! Leasing, 5 F.3d at 901; United States v.
Montrose Chemical Corp. (C.D.Ca1.1992), 788
F.Supp. 1485, 1496 ("CERCLA is not an exclusive
remedy, and ... Defendants are entitled to bring
counterclaims based on bath CERCLA and tort law.")
(emphasis in original).
FNS. CERCLA also contains a provision which
states that "[n]othing in this Act shall be constmed
as pre-empting any state from imposing an additional
liability ... with respect to the release of hazardous
substances within such state." 42 U.S.C. § 9614(a).
This other "savings" statute has been construed as
leaving "untrammeled the right of an individual to
invoke principles of statutory or common law in
damage actions pendant [sic] to CERCLA...." Allied
Towing Corp. v. Great Eastern Petroleum Corp.
(E.D.Va.1986), 642 F.Supp. 1339, 1351.
[6] Nevertheless, Terra has not met its burden of
designating evidence which would tend to establish
that Kraft's remediation did "not restore the value [of
Terra Site] to its prior level" or "[o its fair market
value before the causative event." In re Paoli, 35
F.3d at 797; Wiese-CMC, 626 N.E.2d at 597. Kraft
offered expert testimony that its remediation of Terra
Site had been completed in February of 1994, at least
seven months before both parties moved for stutttttary
judgment. However, the record is devoid of any
evidence of the value of Terra Si[e after the
restoration, that is, evidence tending to prove the
post-remediation reduction in the fair market value of
Terra Site. Terra only established the auction sale
price o[ Terra Site, but it is undisputed that while
bidders were informed Kraft had agreed to clean up
the property, the sale occurred before remediation.
[FN6] There is no evidence in the record to support
Terra's assertion that the auction price represents the
value of Terra Site after remediation.
FN6. Terra alleged in its complaint, and both parties
assumed at oral argument, that Terra Site was sold at
auction (or $270,000.00. However, this was the sale
price (or both Terra and Mallory Sites. The record
indicates that Terra Si[e was actually sold separately
for S 120,000.00. Record at 264.
Even if we were to conclude that the auction price of
Terra Site was a reliable measure of its post-
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