Julie B. Anderson and Aaron W. Rapier

     This Article explores the role a federal regulatory standard has in common law causes of action. The maximum contaminant levels (MCL) are part of the Safe Drinking Water Act (SDWA)[1] and establish the maximum contaminant concentrations permitted in public water supplies. Contamination levels below the MCL are by no means "safe." The SDWA creates a separate standard, called the Maximum Contaminant Level Goal (MCLG)[2] which is the U.S. Environmental Protection Agency's "health-based" standard for water pollutants. The Maximum Contaminant Level Goal, discussed infra, sets goals for concentrations of contaminants in water supplies which are based purely on health-based factors. MCLs typically allow for concentrations of contaminants in excess of the MCLG, which is "the level at which now known or anticipated adverse affects on the health of persons occur"

     However, despite the health risks still associated with contamination levels falling below the MCL standard, an obscure argument has recently been proposed that this MCL standard should be the standard of liability for all common law causes of action. In other words, plaintiffs whose water supplies or properties are concededly contaminated with harmful pollutants will be without recourse unless they show that the level of contamination present exceeds the MCL of a law that is otherwise inapplicable to their cause of action. This argument is perplexing for two reasons. First, the SDWA says nothing to suggest this result. Second, plaintiffs' claims are not derived from the SDWA, but from the common law.

     This Article advances three arguments to demonstrate why the MCL should not be established or even discussed, as a standard of liability for common law causes of action. Part I provides a background on the MCL and the statutory framework of the SDWA. Part II surveys relevant case law, including In re MTBE, a leading case on this issue. Finally, Part III advances three arguments to demonstrate why the MCL does not govern common law causes of action. Part III.A surveys similar regulatory laws that have been supplemented by stricter restrictions at common law, leading to the conclusion that the MCL regulatory standard should also be supplemented by common law causes of action. Part III.B explores the history behind the tort of trespass, which is a state common law claim often used to address contamination. This tort only requires an invasion of the land, and not an actual "injury." Thus, even contamination levels below MCL standards may still sustain trespass actions. Finally, Part III.C argues that under common rules of statutory construction, Congress' omission of an express provision barring common law causes of action for contamination under its MCL regulatory standard demonstrates that this concept was contemplated, but expressly rejected and therefore should not be adopted.

I. The Maximum Contaminant Level

     The SDWA is a federal law enacted to promote the quality of drinking water in public water systems. In order to accomplish this goal, the Act authorizes the E.P.A. to enact "MCLs" and "MCLGs" for public water supplies. The MCL takes into account non-health related factors such as the feasibility and cost of treatment techniques.[3] The MCL is derived from "the best available, peer-reviewed science and supporting studies" as well as "data collected by accepted methods or best available methods."[4] By comparison, MCLG is "the level at which no known or anticipated adverse affects on the health of persons occur and which allows an adequate margin of safety."[5] The MCLG is a purely health-based standard.

     Some advocate the MCL should apply as the standard of liability for common law actions involving pollution of potable water supplies.[6] Adopting the MCL as the standard for common law liability would bar claims for negligence, nuisance, trespass, or tort liability brought by individuals whose properties were polluted with contaminants below the MCL.[7]

II.      Summary of Case Law on Whether MCLs Should Control Common Law Causes of Action

A. Case Law Analysis of the MCL Has Been Inconsistent

The case law thus far is fairly vague and varied as to whether the MCL should be a standard for liability in claims alleging contamination of a water supply. Some cases seem to have expressly adopted the MCL as a standard of liability.[8] Others have rejected it completely.[9] And still other courts lie in the middle, requiring contamination to "rise to the level of toxicological concern" before plaintiffs can pursue common law actions.[10]

In cases where the MCL has not been determinative of whether defendants can be held liable for contamination, courts have generally focused on the fact that plaintiffs' claims typically seek compensation for property damage, and that the MCL is irrelevant as to whether contaminants invaded the property for purposes of a legal injury.[11] As the Court in Bentley v. Honeywell International aptly noted:

[T]he reality [is] that the Plaintiffs' claims are for property damage. Regardless of whether the municipal water supply has been deemed safe by the Ohio EPA and/or determined to be below the federal and state established maximum contaminant levels ('MCL'), the Municipal Water Supply Class Members still may have suffered diminution in their property values merely from the knowledge and presence of cancer-causing chemicals detected in their homes' water supplies.[12]

Other courts have also noted that conduct falling within a regulatory framework can still cause harm and become tortious.[13]

B.      In re MTBE Litigation

Perhaps the most comprehensive discussion of whether the MCL should become a standard for common law liability can be found in In re MTBE Litigation.[14] In one phase of the MTBE consolidated multi-district action, various public water districts sued defendants who manufactured and used methyl tertiary butyl ether (MTBE).[15] MTBE is a byproduct of the gasoline refining process and is also used as a gasoline additive.[16] It is released into the air through gasoline emissions, and it is deposited into the ground through rainfall.[17] MTBE is highly soluble, easily traveling through groundwater, and may contaminate private wells and public water supplies.[18] Plaintiffs alleged that the defendants MTBE contaminated their water supplies. Plaintiffs alleged the water contained a foul taste and odor and was, therefore, "unusable and unfit" for human consumption.[19] Moreover, MTBE is a known carcinogen in animals and may be carcinogenic in humans.[20]

Defendants moved for summary judgment, contending that plaintiffs lacked standing to pursue their claims because the concentration of MTBE was below the MCL and, therefore, that plaintiffs suffered no legal injury.[21] The court framed the issue as follows: "[t]he essence of the dispute here is the extent to which an MCL defines what constitutes a legally cognizable harm."[22] The court noted there was "an important distinction between determining that an injury cannot legally occur (i.e., contamination below the MCL cannot give rise to an injury), and determining that an injury has not or is unlikely to occur (i.e., contamination below the MCL is unlikely to give rise to an injury)."[23] The Court ultimately held that "while the MCL may serve as a convenient guidepost in determining that a particular level of contamination has likely caused an injury, the MCL does not define whether an injury has occurred."[24] In doing so, the Court rejected the notion that plaintiffs' sub-MCL levels of contamination required the dismissal of their claims as a matter of law.

Plaintiffs' lawyers and the defense bar alike can use helpful dicta from the MTBE case. The holding that sub--MCL contamination claims are not barred as a matter of law is extremely helpful for plaintiffs. In re MTBE creates precedent that sub-MCL contamination can be injurious and actionable.[25] For defendants, In re MTBE still allows courts to use the MCL as a guidepost in determining whether a legally cognizable injury has occurred.[26] From this, defendants can argue that claims falling substantially below the MCL should be barred as a matter of law.

The court, in the MTBE litigation, limited its holding to cases involving public water supplies.[27] The court "[did] not consider whether, and to what extent, individual, private well owners (nor water consumers) may be damaged by contamination below the applicable MCL," and that "[i]ndeed individual well owners (and likewise, water consumers) may well have a different legally protected interest than providers of water or regulatory agencies."[28] Many cases pursuing claims against alleged polluters are brought by private homeowners.[29] In such cases, plaintiffs should expect defense arguments that the MCL determines whether a "legally cognizable injury" has occurred.[30]

The court in In re MTBE did not discuss what burden of proof standard applies in common law actions relying upon the MCL. While it is plaintiffs' burden to demonstrate standing, it should be the defendant's burden to exhibit why in the absence of an explicit legislative mandate, MCLs should control or, frankly, have any relevance whatsoever to common law claims seeking redress for the pollution of drinking water supplies.

III.     The MCL Should Not be the Standard of Liability for Common Law
Causes of Action

     The SDWA defines the MCL as "the maximum permissible level of a contaminant in water which is delivered to any user of a public water system."[31] The "maximum permissible" contamination levels should not dictate common law actions for plaintiffs who do not want to wait until contamination on their property reaches the government's maximum permissible level before they may pursue legal action to cleanup their polluted water supplies. The MCL is a ceiling that compels government involvement and remedial effort when reached. It does not preclude private cleanup efforts or tort liability when contamination, though potentially health threatening, is present at levels below the MCL.

A. Common Law Claims Exist Independent of Statutory Protection

Nothing in SDWA evidences a legislative intent to limit or bar common law claims due to the contaminants' concentration below the MCL in a potable water supply. In addition to the SDWA's silence, United States Supreme Court case law interpreting similar statutes supports the view that MCLs were not intended to preclude common law claims.

For example, in Bates v. Dow Agrosciences LLC, the Supreme Court found that plaintiffs could pursue state law causes of action against defendants for labeling deficiencies in their pesticide products. The Court held that these causes of action could proceed despite: (a) defendant's label, as worded, complied with Federal regulations; (b) defendant's label was approved by the EPA; and (c) the federal labeling law at issue in the case expressly stated that States "shall not impose or continue in effect any requirements for labeling or packaging in additional to or different from those required under this subchapter."[32] The Court found that state common law actions serve an important function in compensating injured parties, and that such a function does not seek to alter federal regulatory requirements.[33]

The Court considered the language of the statute in light of the history of labeling lawsuits:

The long history of tort litigation against manufacturers of poisonous substances adds force to the basic presumption against pre-emption. If Congress had intended to deprive injured parties of a long available form of compensation, it surely would have expressed that intent more clearly. Moreover, this history emphasizes the importance of providing an incentive to manufacturers to use the utmost care in the business of distributing inherently dangerous items.[34]

This same logic has been applied to other areas of law. For example, several district courts allowed plaintiffs to pursue state common law claims against drug manufacturers for deficiencies in prescription drug labels even though the label complied with federal regulations and was approved by the Food and Drug Administration.[35] Courts have noted that federal regulations on prescription drug labels are "minimum standards; [that] do not necessarily shield manufacturers from state law liability."[36] The purpose of the federal regulations is to promote safety and protect the public, while state law remedies create greater protections to "reinforce and enhance this objective."[37]

These same principles apply with equal force to the issue of whether the MCL should be adopted as a standard of liability in environmental contamination cases. Similar to federal labeling requirements for pesticides and prescription drugs, the MCL prescribes minimum levels of protection.[38] Thus, state common law remedies supplement the safety and public interest goals of the federal environmental laws to provide a means of compensating parties injured by the conduct of others, even if such conduct did not violate federal regulations. Moreover, SDWA expressly preserves common law actions, providing that "[n]othing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any requirement prescribed by or under this subchapter or to seek any other relief."[39] The express preservation of claims for "other relief" under the SDWA, coupled with federal jurisprudence permitting common law standards more stringent than federal regulations standards, demonstrates that the MCL should not prevent private homeowners with sub-MCL contamination from seeking common law remedies.

B. The Tort of Trespass Does Not Support the MCL as a Standard of Liability

     

Private actions seeking to recover damages against polluters typically include trespass claims. This tort's history and theory demonstrates that the MCL should not be adopted as a common law liability standard. While other torts generally require plaintiffs to prove an "injury" or "damage" as part of the prima facie case, trespass to land is one of the torts included in the original writ of trespass.[40] Offenses in the original writ of trespass were criminal in nature, and damage to the victim did not have to be shown.[41]

     This tenet is exemplified in the often studied Thorns Case. In The Thorns Case, some of the thorns being trimmed from a bush on the defendant's property fell onto his neighbor's land. Although the defendant took the thorns off the plaintiff's property as quickly as he could, the court held that an action in trespass lie and stated that "if one cuts his trees and the boughs fall on a man and hurt him, in this case he shall have an action of Trespass."[42] The Restatement (Second) of Torts has also stated that "[o]ne who intentionally enters land in the possession of another is subject to liability to the possessor for a trespass, although his presence on the land causes no harm to the land, its possessor, or to any thing or person in whose security the possessor has a legally protected interest."[43]

     The legal principle set forth in The Thorns Case and the Restatement--that any physical invasion, regardless of its actual harm caused, can sustain a trespass claim--has been carried over into modern day case law. For example,. actions in trespass have been maintained against a defendant-neighbor who went onto plaintiff's property to retrieve errant basketballs;[44] a defendant-neighbor whose tree branches grew out over the air space above plaintiff's property line;[45] and a defendant who transported a mobile home across plaintiff's property, causing only nominal damage.[46]

     The reasoning behind allowing even slight trespasses to be actionable is that, as the United States Supreme Court recognized, a private landowner's right to exclude others from his or her land is "one of the most essential sticks in the bundle of rights that are commonly characterized as property."[47] Other courts have recognized this fundamental property interest. For instance, the Oregon Supreme Court in Martin v. Reynolds Metals Company stated:

Probably the most important factor which describes the nature of the interest protected under the law of trespass is nothing more than a feeling which a possessor has with respect to land which he holds. It is a sense of ownership; a feeling that what one owns or possesses should not be interfered with, and that is entitled to protection through law.[48]

     

     These cases demonstrate that trespass requires only an invasion onto the land, not an objectively unreasonable injury. Once the land has been invaded, a property owner may exercise his/her right to exclude the unwanted objects, persons, or contaminants from the property. The existence of an invasion, and not its gravity, is what is central to a trespass claim. Therefore, once a property owner's land has been invaded with contaminants, he/she should be allowed to pursue a claim. The law does not require a property owner to idly tolerate an invasion of his/her land, until the gravity of the invasion exceeds the standard the government deems to be the maximum contaminant level it will allow.

C.     Statutory Construction Supports the Argument that the MCL Does Not Govern Common Law Causes of Action

     

A final argument as to why the MCL should not be adopted as the standard of common law liability can be found by looking at the difference in statutory construction between the SDWA and the Atomic Energy Act (AEA). The AEA establishes the regulatory limits for nuclear contamination.[49] In drafting the law, Congress sought to encourage the production of nuclear energy, while recognizing that this production could produce harmful contamination.[50] In order to balance these two competing interests, Congress expressly stated that common law remedies would not be available to plaintiffs unless nuclear contamination levels exceeded the regulatory standards.[51] This provision (in the CFR governing Nuclear Regulatory Commission activities) shows that Congress knows how to draft a statute to preclude common law actions when contamination does not exceed regulatory limits.[52]

The SDWA's omission of such a provision is then telling. A fundamental rule of statutory construction provides that when Congress "includes particular language in one section but omits it in another," the presumption stands that the omission was intentional.[53] Therefore, it should be clear that the MCL is not the standard of liability for common law causes of action, and should thus not prevent such actions. Congress knows how to bar common law actions when contamination does not exceed regulatory standards, as seen above in the AEA, but choose not to insert such a provision in the SDWA. From this, it should be construed, that in SDWA, Congress explicitly contemplated, but then rejected, preemption of common law claims.

IV. Conclusion

The MCL should not bar, or even influence, liability for common law causes of action seeking to redress contamination of water supplies. Contamination below the MCL is still hazardous and detrimental to one's health, and should thus be actionable. Courts have consistently recognized the importance of state tort law remedies, and have allowed such actions to create higher standards of conduct than would otherwise be required by federal regulations. The tort of trespass also does not require contamination to rise to a certain level before it is actionable, as this tort consistently allows even minimal trespasses to be actionable. Finally, Congress has drafted laws previously that preclude common law claims when conduct does not violate federal regulations. The absence of such a similar provision in the SDWA allows one to conclude that Congress expressly intended the opposite result. The MCL is only a product of the SDWA, and not the common law. Private causes of action brought under the common law, should thus be governed only by common law standards. The SDWA and MCL levels should have no influence, and certainly no bar on common law claims.

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* Julie B. Anderson and Aaron W. Rapier are attorneys at The Collins Law Firm, P.C. in Naperville, Illinois. The Collins Law Firm represents families and individuals whose health or property is threatened by environmental contamination.

[1] Public Health Service Act, 42 U.S.C. §§ 300f to 300j--26 (2000).

[2] This separate standard is the Maximum Contaminant Level Goal (MCLG). See infra Part I.

[3] 42 U.S.C. § 300g-1(b)(4)(B), (D), (E) (2000).

[4] § 300g-1(b)(3)(A)(i)-(ii).

[5] § 300g-1(b)(4)(A).

[6] See, e.g., In re MTBE Litig., 458 F. Supp. 2d 149, 155 (S.D.N.Y. 2006) ("A few courts have held . . . that contamination below the applicable MCL cannot give rise to a legally cognizable injury").

[7] See Adams v. A.J. Ballard, Jr. Tire & Oil Co. Inc., No. 01-CVS-1271, 03-CVS-912, 03-CVS-1124, 2006 WL 1875965, at *3 (Sup. Ct. N.C. June 30, 2006) ("[U]nless each Plaintiff [must] establish the existence of concentrations of MTBE or other contaminants sufficient to violate the state groundwater quality standards, they do not have standing to pursue their claims at trial and their claims must be dismissed").

[8] See, e.g., id.

[9] See, e.g., Bentley v. Honeywell Int'l, Inc., 223 F.R.D. 471, 478 n.11 (S.D. Ohio 2004) ("Regardless of whether the municipal water supply has been deemed safe by the Ohio EPA and/or determined to be below the federal and state established maximum contaminant levels ('MCL'), the [plaintiffs] still may have suffered diminution in their property values . . . .").

[10] See, e.g., In re Wildewood Litig., 52 F.3d 499, 503 (4th Cir. 1995).

[11] See Mejdreck v. The Lockformer Co., No. 01 C 6107, 2002 WL 1838141, at *5 (N.D. Ill. Aug. 12, 2002) ("Whether or not Defendants should be held liable for the level of TCE, regardless of how high or low it is, is a determination left to the factfinder."); LeClercq v. The Lockformer Co., No. 00 C 7164, 2002 WL 907969, at *4 (N.D. Ill. May 6, 2002) (finding a class of homeowner plaintiffs should be certified despite the fact that some class area homes showed no contamination whatsoever in their private water wells); American Nat'l Bank v. Harcros Chemicals, Inc., No. 95 C 3750, 1997 WL 281295, at *19 (N.D. Ill. May 20, 1997) (finding that contamination of soil by hazardous substances, without any discussion on a necessary level of contamination, "is a physical injury and thus constitutes property damage").

[12] See Bentley, 223 F.R.D. at 478 n.11.

[13] See German v. Federal Home Loan Mortgage Corp., 885 F. Supp. 537, 559 (S.D.N.Y. 1995) (finding Plaintiffs' allegations to be sufficient, when they alleged that significant harm could still result from lead-based paint that was still "well below…the Centers for Disease Control['s] ('CDC') defined danger level"); see also, City of Tulsa v. Tyson Foods, Inc., 258 F. Supp. 2d 1263, 1297 n.26 (N.D. Okla. 2003) (vacated by settlement) (denying Defendant's summary judgment argument that "plaintiffs cannot establish that they have suffered harm that was certain, substantial and not speculative, as the Water Supply is in full compliance with the Safe Drinking Water Act and does not present any health hazards" after holding that to succeed on common law claims, "plaintiffs are not required to show defendants created a health hazard").

[14] In re MTBE Litig., 458 F. Supp. 2d 149 (S.D.N.Y. 2006).

[15] Id. at 151.

[16] In re MTBE Litig., 379 F. Supp. 2d 348, 364--65 (S.D.N.Y. 2005).

[17] Id. at 365.

[18] Id.

[19] Id.

[20] Id.

[21] In re MTBE Litig., 458 F. Supp. 2d 149, 151-52 (S.D.N.Y. 2006).

[22] Id. at 154.

[23] Id. at 158 (footnote omitted).

[24] Id. at 158.

[25] Id. at 157.

[26] Id.

[27] Id. at 156 n.36.

[28] Id.

[29] See, e.g., Bentley v. Honeywell Int'l, Inc., 223 F.R.D. 471, 478 (S.D. Ohio 2004); Mejdrech.v. The Lockformer Co., No. 01 C 6107, 2002 WL 1838141, at *1 (N.D. Ill. Aug. 12, 2002); LeClercq v. The Lockformer Co., No. 00 C 7164, 2002 WL 907969, at *1 (N.D. Ill. May 6, 2002) (suing on behalf of private homeowners seeking common law remedies to redress contamination in the area).

[30] See In re MTBE Litig., 458 F. Supp. 2d at 155 (It should be noted that unlike a private well owner, public water districts may have an actionable claim for contamination below the MCL because they "have a duty to take action--be it testing, monitoring, or treating contaminated wells--before that contamination reaches the applicable MCL." As such, public water districts incur costs for which they are entitled to seek recovery. Id.).

[31] 42 U.S.C. § 300f(3) (2000).

[32] Bates v. Dow Agrosciences LLC, 544 U.S. 431, 453-54 (2005), quoting Federal Insecticide Fungicide, and Rodenticide Act, 7 U.S.C. § 136v(b) (2000).

[33] Id. at 449-51.

[34] Id. at 449-50, citations omitted.

[35] See Jackson v. Pfizer, Inc., 432 F. Supp. 2d 964, 966-67 (D. Neb. 2006) (finding that state common law claims could proceed despite defendant's compliance with federal regulations); Laisure-Radke v. Par Pharmaceutical, Inc., 426 F. Supp. 2d 1163, 1169 (W.D. Wash. 2006) (finding that a plaintiff could bring state law claim for failure to warn of increased risk of suicide from the antidepressant drug fluoxetine, since (1) state law not preempted; (2) statement would not be false and misleading; (3) no frustration of congressional purpose existed ); Peters v. Astrazeneca, LP,, 417 F. Supp. 2d 1051, 1056 (W.D. Wis. 2006) (holding that there was no preemption over state law where FDA did not require a warning on the product); McNellis v. Pfizer, Inc., No. Civ. 05-1286 JBS, 2005 WL 3752269, at *10-11 (D.N.J. Dec. 29, 2005) (holding that (1) common law failure to warn claim was not preempted by federal law in Zoloft suicide case; (2) the product not considered mislabeled because the label is strengthened; (3) the burden was on plaintiff to prove defendant's knowledge of suicide); Zikis v. Pfizer, Inc., No. 04 C 8104, 2005 WL 1126909, at *3 (N.D. Ill. May 9, 2005) (holding that the state court claims were not preempted, and manufacturer can add additional warnings and that manufacturer can comply with both FDA and state requirements); Witczak v. Pfizer, Inc., 377 F. Supp. 2d 726, 728-30 (D. Minn. 2005) (manufacturer can unilaterally strengthen a warning; requirement by FDA to use label verbatim did not preempt state law failure to warn claim; and prohibition against false and misleading labels did not preempt failure to warn claims); Cartwright v. Pfizer, Inc., 369 F. Supp. 2d 876, 882 (E.D. Tex. 2005) (stating that the FDA warning label requirement is a minimum standard of conduct).

[36] Witczak, 377 F. Supp. 2d at 732.

[37] Id.

[38] See 42 U.S.C. § 300g-1(b)(4)(A) (2000).

[39] § 300j-8(e). Similar "savings clauses" are found in other environmental statutes; such "savings clauses" preserve plaintiff's right to pursue other common law remedies. See also 42 U.S.C. § 6972(f) (2000) ("Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or requirement relating to the management of solid waste or hazardous waste, or to seek any other relief (including relief against the Administrator or a State agency)"); 42 U.S.C.A. § 7604(e) (West 2000) ("Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief (including relief against the Administrator or a State agency)."); 42 U.S.C.A. § 9614(a) (West 2000) ("Nothing in this chapter shall be construed or interpreted as preempting any State from imposing any additional liability or requirements with respect to the release of hazardous substances within such State."); 42 U.S.C.A. § 9659(h) (West 2000) ("This chapter does not affect or otherwise impair the rights of any person under Federal, State, or common law, except with respect to the timing of review as provided in section 9613(h) of this title or as otherwise provided in section 9658 of this title (relating to actions under State law)."). See also Moon v. North Idaho Farmers Ass'n, No. CV 2002 3890, 2002 WL 32102995 at *3-4 (Idaho Dist. Ct. Nov. 19, 2002) (finding that state law claims for nuisance and trespass were not preempted by the Clean Air Act).

[40] The torts in the original writ of trespass included not only trespass to land, but trespass to chattels, false imprisonment, battery, and assault. Moreover, the doctrine of transferred-intent also applies to only the torts in the original writ. See Vincent R. Johnson, Transferred Intent in American Tort Law, 87 Marq. L. Rev. 903, 931 (2004). See, also, Western Atlas Int'l Inc., R. v. Randolph, No. 13-02-00244-CV, 2005 WL 673483, at *4 (Tex. App. Corpus Christi March 24, 2005) ("[A] trespasser is liable to the property owner even though there is no proof of any actual damages in any specific amount." (quotations omitted)); Burt v. Beautiful Savior Lutheran Church of Broomfield, 809 P.2d 1064, 1066 (Colo. Ct. App. 1990) ("One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally . . . enters land in the possession of the other, or causes a thing or a third person to do so." (quotations omitted)); Nappe v. Anschelewitz, Barr, Ansell & Bonello, 477 A.2d 1224, 1228-29 (N.J. 1984) ("Proof of actual damage was not required because invasion of the plaintiff's rights was regarded as the tort in itself." (citation omitted)); Livers v. Wu, 6 F. Supp. 2d 921, 936 (N.D. Ill. 1998) ("A person is liable for an intentional intrusion on land irrespective of whether he or she causes harm to a legally protected interest." (citation omitted)).

[41] Burt, 809 P.2d at 1066 ("In early English law, the writ of 'trespass' has a basic criminal character and provided a cause of action for all direct and immediate injuries to person or property.").

[42] The Thorns Case, Y.B. Mich. 6 Ed. 4, f 7, pl. 18 (1466), reprinted in C.H.S. Fifoot, History and Sources of the Common Law 195 (1949).

[43] Restatement (Second) of Torts § 163 (1965).

[44] Chicago Title & Tr. Co. v. Weiss, 605 N.E.2d 1092, 1097-98 (Ill. App. Ct. 2d Dist. 1992).

[45] Jones v. Wagner, 624 A.2d 166, 167 (Pa. Super. Ct. 1993).

[46] Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154, 156 (Wis. 1997).

[47] Dolan v. City of Tigard, 512 U.S. 374, 384 (1994) (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979)).

[48] Martin v. Reynolds Metals Co., 342 P.2d 790, 796 (Ore. 1959).

[49] 42 U.S.C. § 2011 (2000).

[50] Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 250 (1984) (discussing 1959 congressional decision to delegate to states certain aspects of regulating nuclear power but continuing to entrust the federal Atomic Energy commission to oversee the disposal of hazardous nuclear material).

[51] 10 C.F.R. § 8.4(i) (2005) ("It seems completely clear that the Congress, in enacting section 274, intended to preempt to the federal Government the total responsibility and authority for regulating, from the standpoint of radiological health and safety, the specified nuclear facilities and materials . . . .").

[52] See § 8.4(h) ("It is not intended to leave any room for the exercise of dual or concurrent jurisdiction by states to control radiation hazards by regulating byproduct, source, or special nuclear materials.") (citation omitted); see also People v. Kerr-McGee Chemical Corp., 677 F.2d 571, 580-81 (7th Cir. 1982), cert. denied 459 U.S. 1049 (1982) (referencing legislative history behind Atomic Energy Act whereby Congress did not intend to "leave any room for the exercise of dual or concurrent jurisdiction by States to control radiation hazards").

[53] BFP v. Resolution Trust Corp., 511 U.S. 531, 537 (1994) ([quoted text as in manuscript] (quoting Chicago v. Environmental Defense Fund, 511 U.S. 328, 338 (1994) (quotations omitted)).