Kentucky Appellate Court Affirms Dismissal of Case Alleging Private Nuisance and Negligent Trespass Based on Alleged Water Supply Contamination by Local Oil Company

On two occasions in 2008 and 2009, the Kentucky Department of Environmental Protection issued an advisory to the residents surrounding Whitesburg, Kentucky not to use the water pumped out of the local water treatment plant.  The first advisory followed seepage of potential sludge out of a plastic-lined pit at an oil plant and into the Kentucky River.  The second advisory followed a leak from a diesel fuel tank stored on the same property.

The Court of Appeals of Kentucky affirmed dismissal of the plaintiffs’ cases that were on appeal.  The plaintiffs had brought private temporary nuisance claims but the court questioned whether those claims could be based upon a release of pollutants that directly affected a municipal water supply even though no interference occurred with any private water source locate on property owned by a plaintiff.  The court did not have to reach the issue and dismissed those claims for a lack of proper pleading of standing, but quoted the Fourth Circuit’s recent language in suggesting that those private nuisance claims were not justiciable based on the facts: “If the only interest that is invaded is an interest shared equally by members of the public, then the alleged nuisance is public in nature … The fact that the water eventually was pumped into private homes did not transform the right interfered with from a public right to a private right.”

The plaintiffs also brought claims for negligence and trespass, which the court considered a combined negligent trespass claim.  Because they presented no evidence that any plaintiff’s property or person suffered any injury as a consequence of the alleged contamination, the court also affirmed dismissal of those claims.