Vapor Intrusion and Statutes of Limitations

Statutes of limitations (SOL) establish the time period for bringing a cause of action. SOLs are designed to encourage resolution of disputes within a reasonable period of time before facts or evidence is lost through the passage of time, death or disappearance of witness as well as the loss of memory.

The SOL will differ depending on the nature of the cause of action. For example, tort actions generally have a two-year SOL while contract actions will have a longer period. The time (or clock) when the SOL will generally start (or begin to run) is when all of the elements of a particular cause of action have occurred (known in legal parlance as when the claim has accrued). A related doctrine know as a “statute of repose” provides for a maximum outside period of time for bringing an action regardless when a cause of action has accrued or an injury has resulted.

Some states allow the start of SOL to be delayed when there is a lag between the accrual of the cause of action and when the plaintiff has discovered its injury or should have discovered the injury through the exercise of reasonable diligence. This is particularly significant in toxic tort cases where plaintiffs may not realize they have been exposed to hazardous chemicals until they begin manifesting medical symptoms or in cost recovery actions where the plaintiff may not have suffered cleanup costs until decades after the original discharge. In some cases, courts have held that plaintiffs should have become aware of their potential injury or damages resulting from a contaminated site where there was widespread coverage of the contamination in the local media or where EPA may have conducted public meetings to discuss remedial options for the site.

Because not all states have a discovery rule for SOLs, CERCLA section 9658 provides for a federal commencement date (FCD) for claims brought under state law for personal injury, or property damages caused by or contributed to by exposure to any hazardous substance, or pollutant or contaminant released into the environment.  The FCD is defined as date the plaintiff knew (or reasonably should have known) that the personal injury or property damages were caused or contributed to by exposure to any hazardous substance, pollutant or contaminant, released into the environment. The FCD applies when a state SOL would have provided for a shorter SOL. The case law interpreting this FCD has indicated that it is not limited to sites on the NPL but applies to any site where there has been a release of a hazardous substances, pollutant or contaminant. Less clear is whether the FCD can operate to extend a statute of repose or is limited to delaying SOLs.

Another pleading technique that plaintiffs have been able to use in some states to avoid dismissal under an SOL is to argue that the each day that contaminants remain on their property constitutes a new wrong which resets the SOL. Defendants, of course, will argue that the presence of the contaminants is simply continuing damage and not a continuing tort so that the SOL should be measured from the original date of the initial discharge.

The SOL can be a powerful litigation tool that defendants can use to dismiss all or part of a plaintiff’s complaint early in lawsuit. The SOL can also be used to narrow the issues and promote settlement. However, the SOL is an affirmative defense that a defendant must raise in its answer to a complaint or the defendant will be deemed to waived the defense and be precluded from using it in later proceedings.

Vapor intrusion is complicating the SOL analysis. Because the vapor intrusion pathway only came into focus during the past decade, there have been numerous cases where plaintiffs were allowed to bring property damage or personal injury claims for exposure to contaminants volatilizing from groundwater plumes that plaintiffs may have been aware of for decades. In these cases, the courts have held the vapor pathway was a “second” injury or newly discovered injury/damage, and then measured the SOL from when the plaintiffs learned or should have learned about the vapors.

Where plaintiffs are using public water and thus have no exposure to contaminants, vapor intrusion may be the key to maintaining a toxic tort claim.  The potential for vapor intrusion can be a litigation game changer not only because it serves as potential exposure pathway for personal injury claims but also because the potential exposure support claims of stigma. When they are not using groundwater, it can be hard for plaintiffs to show how the contamination has substantially interference with their use and enjoyment of their property. However, when there is potential vapor intrusion, property values may drop because of the fears about exposure. In the most extreme situations, there may not be any contaminated groundwater beneath the plaintiffs property but instead vapors that have migrated horizontally through the soil column or preferential pathways.

One of the leading cases for a separate SOL for vapor intrusion was the New York State case of Aiken v General Electric, 869 N.Y.S.2d 263 (App. Div-3rd Dept. 2008). There, the plaintiffs filed a claim in 2006 following vapor intrusion for a groundwater plume that had been discovered in 1983. The trial court denied defendant’s motion to dismiss the complaint on the grounds that the action should have been brought within 3 years of discovery of the groundwater contamination. The court found that while the source and existence of the groundwater plume was long part of the public record, the plaintiffs had only discovered that the air within their homes was potentially impacted when vapor intrusion sampling was done in 2005. Moreover, the court noted that the plaintiffs and the community had been repeatedly assured by the defendant as well as DEC that the contaminated groundwater did not pose any immediate health risk.

A more recent example and the reason we have written this post was the recent New Jersey case of Leese v Lockheed Martin, 2012 U.S. Dist. LEXIS 5096 (D.N.J. 4/11/12).  In this case, the plaintiffs purchased a newly-constructed home in 2003 in a development called Wexford at Moorestown. The site was across the street from a facility owned by Lockheed Martin Corporation.

Pursuant to the state “New Residential Construction Off-Site Conditions Disclosure Act” requiring disclosure of contaminated sites within proximity to new construction, the plaintiffs were informed that the ground water beneath the southeastern quarter of the Wexford complex had been contaminated by TCE that had migrated from the Lockheed Martin property. The plaintiffs were also advised that Lockheed Martin had been remediating the contamination under the supervision of the NJ Department of Environmental Protection (NJDEP). The plaintiffs were also advised that the NJDEP had determined that no remediation was required at the Wexford complex and that an NFA letter would be issued.

As it turned out, vapor intrusion became an issue of concern in New Jersey and the NJDEP never issued that NFA letter. In September 2008, the NJDEP requested Lockheed Martin to conduct vapor intrusion testing at the residential properties across the street. In December 2008, Lockheed Martin conducted near-slab samples within 10 feet from foundation and sub-slab samples from beneath the basement of plaintiffs’ property. In January 2009, Lockheed Martin advised the plaintiffs that the sampling did not detect TCE, but did find PCE in three samples. Two of the soil gas samples detected PCE that exceeded NJDEP screening levels. Lockheed Martin then conducted indoor air sampling that did not detect TCE in the home but PCE was detected in the basement and first floor. The basement levels of PCE exceeded the NJDEP screening levels.

In July 2011, eight years after being informed of the groundwater contamination, plaintiffs filed a complaint in New Jersey Superior Court against Lockheed Martin and the homebuilder asserting various statutory and common law claims. The plaintiffs alleged that there was an ongoing discharge of TCE and PCE at the Lockheed Martin property and that their home was continually impacted from contaminated groundwater flowing from the Lockheed Martin plant.

Lockheed had the case removed to federal court and the claim against the homeowner was dismissed because the homeowner had filed for bankruptcy. Lockheed Martin then filed a motion to dismiss arguing plaintiff’s claims were barred by applicable SOLs. Plaintiffs argued that their claims remained viable under either a discovery rule since they did not learn of the presence of TCE and PCE in their home until December 2008. Plaintiffs also asserted that the continued elevated levels of PCE and TCE on their property was evidence of an ongoing discharge and therefore their claims were not barred by the continuing tort doctrine.

The court acknowledged that plaintiffs’ complaint was not a model of clarity but that it was not clear from the face of the complaint that any applicable SOL barred the plaintiffs’ claims. The court rejected the defendant’s argument that plaintiffs could not prove that the presence of TCE in the groundwater beneath plaintiffs’ home had exposed them to TCE because TCE could be released into indoor air from contaminated groundwater. The court also said that it was possible that the plaintiffs might be able to prove during discovery that there was an ongoing discharge of the chemicals that constituted a continuing tort and tolled the applicable SOL.

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