State ex rel. Smith v. Kermit Lumber & Pressure Treating Co
In State ex rel. Smith v. Kermit Lumber & Pressure Treating Co., 200 W.Va. 221, 243, 488 S.E.2d 901, 923 (1997), the Court was asked to determine whether soil contamination that resulted from a business engaged in lumber pressure treating created a temporary or a permanent nuisance.
In reaching the decision, the Court found helpful the analysis used in Arcade Water District v. United States, 940 F.2d 1265 (9th Cir. 1991), a case in which the Ninth Circuit Court of Appeals decided that the applicable two-year statute of limitations did not bar the water district's suit for contamination of its water well by a military laundry despite the closing of the laundry eight years prior to the suit's commencement.
Applying California law, which defines a nuisance as permanent or temporary depending on "'whether the nuisance may be discontinued or abated,'" the Ninth Circuit held that the nuisance at issue could not be viewed as permanent because "the contamination may abate . . . and Well 31 may be restored." Arcade Water, 940 F.2d at 1268 (quoting Mangini v. Aerojet-Gen. Corp., 230 Cal. App. 3d 1125, 1146, 281 Cal. Rptr. 827 (1991)).
Extending that reasoning to the soil contamination at issue in Kermit Lumber, we determined that "as long as the arsenic remains on the Kermit Lumber business site in amounts above the regulatory limits and as long as the arsenic is flowing into the Tug Fork River, the harm or nuisance continues and thus, is a continuing (or temporary) nuisance." Kermit Lumber, 200 W.Va. at 245, 488 S.E.2d at 925.