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April 26, 2012

Vapor Intrusion Case Survives Motion to Dismiss

By: Maggie Macdonald — Filed under: Citizen Suits, Emerging Issues, RCRA, Solid Waste — Posted at 10:12 am

Earlier this month, a federal court in New Jersey denied Lockheed Martin Corporation’s (“Lockheed Martin’s”) motion to dismiss state and federal claims alleging personal injuries and reduced property values arising from soil vapor intrusion.  Leese v. Lockheed Martin Corp., No. 11-5091, 2012 U.S. Dist. LEXIS 50963 (D.N.J. April 11, 2012).   This decision allows the case to proceed to discovery and a potential trial on the merits.    This case and others like it highlight the importance of considering vapor intrusion impacts in property and corporate transactions, especially when there are known or suspected off-site contaminant plumes.  In addition to private party litigation, vapor intrusion is increasingly capturing the attention of regulators in New York and elsewhere, causing them to reopen remediations that were previously thought to be complete.

In Leese v. Lockheed Martin Corp., plaintiffs Michael and Ashley Leese and their minor children allege that groundwater under their property and indoor air within their home are contaminated with trichloroethylene (“TCE”) and tetrachloroethylene (“PCE”) released from defendant Lockheed Martin’s neighboring property.

Lockheed Martin remediated TCE contamination at its property under an agreement with the New Jersey Department of Environmental Protection (“DEP”), and, at DEP’s request, conducted near-slab and sub-slab soil vapor testing at surrounding residences.  Lockheed Martin’s testing revealed elevated levels of PCE beneath the Plaintiffs’ property, and the Plaintiffs’ subsequent air quality testing detected PCE in the basement and first floor of their home.  Plaintiffs filed suit under the New Jersey Spill Act, the New Jersey Water Pollution Control Act, the Resource Conservation and Recovery Act, and New Jersey common law under theories of nuisance, trespass, strict liability and negligence.

In support of its motion to dismiss, Lockheed Martin argued, among other grounds, that there was no possible connection between TCE in the groundwater underneath the Plaintiff’s home and any residential exposure.  The Court rejected that claim, citing the Environmental Protection Agency’s finding that “TCE can be released into indoor air from … vapor intrusion … and volatilization from the water supply.”

Viewing the facts in a light most favorable to the Plaintiffs, the Court found that Plaintiffs had given Lockheed Martin sufficient notice of their claims and raised a reasonable expectation that discovery would reveal evidence to support all of their claims.  As the Court noted, depending on the nature of the facts unearthed throughout the discovery process Plaintiffs may still face a summary judgment motion by Lockheed Martin.  Regardless of the ultimate outcome of this case, this decision demonstrates the courts’ willingness to recognize vapor intrusion as a legitimate basis for environmental claims, and serves as a valuable reminder to be cognizant of potential liability arising from vapor intrusion.

Sive, Paget & Riesel represents a number of property owners on matters relating to vapor intrusion. For more information on this topic, please contact Christine Leas, Jeffrey Gracer or Michael Bogin.

April 18, 2012

New York Seeks To Foster Offshore Wind Projects

By: Ed Roggenkamp — Filed under: Emerging Issues, Renewable Energy & Energy Development — Posted at 3:02 pm

Two recent events signal New York’s continuing interest in promoting offshore wind development.  First, on March 30, 2012, New York signed a Memorandum of Understanding (“MOU”) intended to streamline offshore wind development in the Great Lakes.  The MOU was also signed by Pennsylvania, Illinois,  Michigan, Minnesota and several federal agencies with regulatory authority touching on Great Lakes wind development, including the Environmental Protection Agency (“EPA”), the Army Corps of Engineers, the National Oceanic and Atmospheric Administration (“NOAA”) and the White House Council on Environmental Quality (“CEQ”).  The MOU signatories agreed to work together to create and publish a regulatory roadmap for offshore wind development in the Great Lakes within 15 months, with CEQ serving as the primary federal point of contact.

Second, on April 3, 2012, the Renewable Energy Task Force of the Bureau of Ocean Energy Management-New York (“BOEM-NY”) convened a meeting to discuss New York’s ongoing activities regarding offshore wind development in the Atlantic, including the progress of studies intended to support a forthcoming proposal to amend the state’s Coastal Zone Management Program to include Atlantic wind development.  The Task Force also discussed the New York Power Authority’s request that BOEM grant a commercial lease on the outer continental shelf to the Long Island-New York City Offshore Wind Collaborative, and the process and timeline for BOEM’s leasing decision and environmental impact review.

For more information, please contact Michael Bogin

April 12, 2012

New York State Freshwater Wetlands Appeals Board Eliminated

By: SPR — Filed under: New York Environmental Law, Wetlands — Posted at 1:19 pm

The recently-enacted 2012-2013 New York State Budget has eliminated one of the State’s longstanding administrative institutions: the Freshwater Wetlands Appeals Board (“FWAB”).  The FWAB was established in 1976 to provide a specialized forum for the expeditious review of Department of Environmental Conservation (“DEC”) decisions involving freshwater wetlands, as an alternative to Article 78 proceedings under the Civil Practice Law and Rules.  The Budget Bill repeals the FWAB’s enabling legislation but authorizes the FWAB to decide its pending cases.  No new cases can be heard.

For more information, contact Michael Bogin, who also serves as a member of the FWAB.

April 5, 2012

EPA Proposes Carbon Dioxide Emissions Standards for New Fossil Fuel Power Plants

By: Vicki Shiah — Filed under: Clean Air Act, Climate Change Law, Compliance, Emerging Issues — Posted at 10:04 am

On March 27, the U.S. Environmental Protection Agency (“EPA”) proposed a rule limiting carbon dioxide (“CO2”) emissions from new power plants fired by fossil fuels such as coal or natural gas.

  • The rule applies to new fossil fuel-fired electric utility generating units in the continental United States; it does not apply to existing units or new “transitional” units that already have received preconstruction air emission permits and that start construction within 12 months of the proposed rule’s publication in the Federal Register.
  • Covered power plants would be required to meet an output-based standard of 1,000 pounds of CO2 per megawatt-hour.
  • This standard is expected to favor natural gas over coal.  EPA states that “[n]ew natural gas combined cycle power plant units should be able to meet the proposed standard without add-on controls.”  By contrast, coal-fired power plants would not be able to meet this standard without carbon capture and storage technology, which is still under development and is expected to be quite costly.

The proposed rules (New Source Performance Standards under Section 111 of the Clean Air Act) result from a settlement between EPA and a group of states and environmental organizations.  These plaintiffs sued EPA in opposition to the agency’s refusal, in 2006, to establish greenhouse gas emission standards for new and modified power plants.  EPA was required to revisit this decision in the aftermath of the U.S. Supreme Court’s landmark decision in Massachusetts v. EPA, which affirmed EPA’s statutory authority under the Clean Air Act to regulate greenhouse gas emissions.

Under the settlement giving rise to the standards proposed last week, EPA had also agreed to establish CO2 emissions guidelines for existing fossil fuel power plants.  EPA has yet to propose such standards, and the time frame for its doing so is uncertain; EPA Administrator Lisa Jackson recently stated, “[w]e don’t have plans to address existing plants.”

The full text of the proposed rule is available here.  Public comments are being accepted under Docket ID No. EPA‐HQ‐OAR‐2011‐0660 at for 60 days after the proposed rule’s publication in the Federal Register.