A federal district court is allowing a class action lawsuit filed by 200 individuals to proceed despite the fact that the responsible party has been implementing remedial measures for nearly a decade.
In Stoll v Kraft Foods Global, 2010 U.S. Dist. LEXIS 92926 (S.D.Ind. 9/6/10), releases of TCE and PCE from plant that manufactured ceramic capacitors have impacted the groundwater beneath 129 homes. In 1999, EPA issued a RCRA 3008(h) corrective order to Radio Materials Corporation (RMC). When RMC discontinued operations in 2001, its parent corporation, Kraft Foods Global (KFG), agreed to finance and implement the work under the RCRA order. As part of the corrective action measures, KFG performed a vapor intrusion assessment and agreed to install temporary vapor mitigation systems in 125 homes as interim measures.
In March 2009, the plaintiffs filed their lawsuit asserting claims for negligence, trespass, public nuisance, private nuisance, willful and wanton misconduct as well as injunctive relief under section 7002 of RCRA. The defendants argued that the court should not hear the case under the “primary jurisdiction doctrine” because the defendants were implementing measures under EPA supervision. Under this doctrine, the federal courts will consider a number of factors to determine if they should refrain from exercising authority over a case. These factors include if the relief sought is within the court’s conventional experience, if there is a potential for conflicting orders, if the agency has demonstrated diligence, if the court can fashion the relief requested and if the matter is ripe for adjudication. After weighing these factors, the the court rejected the defendant’s motion to dismiss. The court said the legal claims involved were within the common experience of the court and did not involve highly technical or scientific matters. The court also said that it was not a foregone conclusion that any relief that it awarded would necessarily conflict with the remediation that may be required by EPA. Moreover, the court noted that KFG was not the ordered party but a volunteer acting in place of RMC and therefore there was not a significant risk of a conflict with an enforceable order. On the question of whether the agency has demonstrated diligence, the court said it did not question the diligence of KFG or EPA but that these efforts are outweighed by the fact that a final remedy had not been selected and implemented after 11 years. The court also said that the doctrine cannot be used to defeat claims for monetary damages like those requested by the plaintiffs. Finally, the court said the fact that remediation was ongoing did not mean there was no longer an endangerment from the vapors.
As we have discussed previously, the presence of vapor intrusion is allowing plaintiffs to bring actions under the citizen suit provision of RCRA where previously such claims could not proceed because the plaintiffs were not using contaminated groundwater for potable purposes and not otherwise exposed to contaminated soils. Similarly, evidence of a completed vapor intrusion pathway is allowing the plaintiffs to survive motions to dismiss common law claims. Indeed, in many cases, the only completed pathway-and thus the only basis for liability- is vapor intrusion.
Finally, it is important to note that the overwhelmingly number of vapor intrusion cases involve off-site releases that are impacting the property of the plaintiffs. Consultants need to carefully exercise their professional judgment when determining if an off-site plume does not present a risk to the property being investigated. Likewise, consultants need to carefully assess if an on-site spill has the potential to impact neighboring properties. This situation frequently occurs with shopping centers that have dry cleaners enrolled in state dry cleaner funds. The vast majority of these funds prioritize sites for remediation based on impacts to DRINKING water.
Thus, just because a shopping center being evaluated during a phase 1 has a low ranking does not mean it does not present a risk to a nearby residential neighborhood. While performing phase 1 assessments on shopping centers with dry cleaner or even petroleum releases, consultants should review the data to determine the likelihood that the plume could migrate off-site while a low-ranked site in an area where public water is available waits the five or so years for a state-funded cleanup. If it is possible that the contamination could reach residences, the consultant should advise its client bank or property owner so that mitigation measures or risk transfer mechanisms could be evaluated. Otherwise, the consultant could find itself subject to a malpractice action years if the contamination impacts those off-site properties.
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