Lawsuit by Foreclosing Bank Agst Dry Cleaners Shows how Vapor Intrusion Expands Liability

Those of you who receive the EDR Insider probably noticed the recent report about the bank that foreclosed on a residence and then filed a lawsuit against an adjacent dry cleaner and the bank acting as trustee for the estate that leased the site to the dry cleaner. This case illustrates how vapor intrusion is fast becoming a powerful tool in environmental litigation.
In Forest Park National Bank & Trust v Ditchfield, the plaintiff bank filed a lawsuit under the citizens suit provision (section 7002) of the Resource Conservation and Recovery Act (RCRA) charging that the dry cleaner has created an imminent and substantial endangerment. The lawsuit seeks an order requiring the defendants to remediate the contamination originating from the dry cleaner.
The town of River Forest desperately wants the site remediated because it is part of a Tax Increment Finance (TIF) district that is slated for redevelopment. However, redevelopment is being held up because of the contamination.
Because the town has adopted an ordinance prohibiting use of groundwater for potable purposes, it would normally be very difficult for the plaintiff to successfully bring a RCRA 7002 action since the ordinance essentially serves to prevent exposure to contaminated groundwater. However, the existence of vapor intrusion will enhance the changes of the plaintiff surviving a motion to dismiss the case.
Like this case, there are many sites where vapor intrusion is the only completed exposure pathway because the soil is covered and the groundwater is not being used for drinking water purposes. Indeed, many sites that were remediated using risk-based cleanups and that have received NFA letters yet may continue to pose risks of vapor intrusion because that pathway was not evaluated. As a result, vapor intrusion is fast becoming a favorite tool of the plaintiffs’ bar. For this reason, consultants need to consider the VI pathway even when groundwater is not being used and should carefully review data associated with previously remediated spills before identifying a former release as an HREC.