Legal Remedies Available to Persons Who Are Injured or Whose Property Is Damaged by 94,000 Gallons of Aviation Fuel Released at Naval Air Station Oceana on May 11, 2017

On May 11, 2017 the Navy announced that approximately 94,000 gallons of jet fuel (JP-5) were released from a bulk “fuel farm” at Naval Air Station Oceana.  The spilled fuel leaked into a waterway that carried the JP-5 into the surrounding community where it reached nearby residential properties. 

A multi-agency government team is working to contain and then clean up the spill.  The federal laws that force the spiller to clean up the spill are the Resource, Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901 to 6992k, the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 to 9675 (see especially 42 U.S.C. §9607), and the Clean Water Act 33 U.S.C. §§ 1251 to 1388 (see especially 33 U.S.C. §1321 and the National Contingency Plan at 40 C.F.R. part 300). 

There are legal remedies that allow persons to recover for damage to private property and any personal injuries caused by this spill.[1]  State law affords remedies at common law and in statute. 

The common law claims are nuisance, negligence, trespass, and, depending on the circumstances, strict liability for engaging in an ultra-hazardous activity. 

Even better, the State Water Control Law, at Virginia Code § 62.1-44.34:18(C)(4) provides a very broad damages remedy to any “person for injury or damage to person or property, real or personal, loss of income, loss of the means of producing income, or loss of the use of the damaged property for recreational, commercial, industrial, agricultural or other reasonable uses, caused by” the spill.

Jim Lang is a Pender & Coward shareholder focusing his practice on oil spills and other matters relating to water and environmental law.  Contact him with questions by calling (757) 502-7326 or by sending an email to jlang@pendercoward.com.

[1] The Oil Pollution Act of 1990 (“OPA 90”), 33 U.S.C. §§ 2701 to 2762) is no help because the broad remedies conferred on private persons damaged by a spill apply only in the case of an “oil” spill.  Aviation gasoline, such as JP-5, is not “oil” for purposes of OPA 90.