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Vapor Intrusion Case Survives Motion to Dismiss

By: Maggie Macdonald

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.

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