Type: Law Bulletins
Date: 09/13/2010

Court Rules Against Property Owners in Vapor Intrusion / Groundwater Citizen Suit Case

For over 70 years, summary judgment motions have rarely been granted in fact-intensive cases—until now. In  Voggenthaller v. Maryland Square, LLC , a federal district court in Nevada granted plaintiff-homeowners’ motion for summary judgment finding that their groundwater, contaminated by dry-cleaning chemicals, constituted an imminent and substantial endangerment under the Resource Conservation and Recovery Act (“RCRA”).   

A summary judgment motion granted by a court ends the case before trial. As parties who have been through litigation may be painfully aware, typically, summary judgment motions are difficult for parties to obtain because a single disputed material fact is all that is needed for a court to deny the motion.

The Voggenthaller v. Maryland Square case, 2010 WL 2947296, is interesting because despite the complex facts and legal issues involved, the district court drilled down to the expansive statutory language of RCRA’s citizen suit provision, 42 U.S.C. § 6972(a)(1)(B), and found, as a matter of law, that both the environment and the homeowners were endangered by the contaminated groundwater and chemical vapors. The district court was swayed by the fact that the defendant property owners had previously filed their own lawsuit against the dry cleaner alleging the same type of RCRA imminent and substantial endangerment claim, which colored the court’s view of the defendants’ credibility. In addition, the state agency’s failure to order any cleanup of the contamination to address the homeowners’ concerns prior to the homeowners’ lawsuit influenced the court as well.

RCRA was amended in 1984 to add the citizen suit provision enabling persons to sue for injunctive relief when government agencies and responsible parties have not cleaned up polluted property. Over the years, the courts generally tend to analyze the imminent and substantial endangerment “to health or the environment” virtually as a monolithic term. In this case, the court more precisely tailored its analysis, separating its evaluation of “endangerment to health” from the “endangerment to the environment.” In its laser-like focus and, despite a battle of the experts, the court concluded that groundwater migrating towards the residential community with concentrations of perchloroethylene above drinking water standards “may present” a threat to the environment.  Next, evaluating the impact of indoor air levels and continuing groundwater migration, the Court ruled that the contamination may also present an endangerment to human health although the groundwater was not a source of drinking water.  The Voggenthaller decision highlights the potentially effective use of a RCRA citizen suit claim in groundwater cases.  Whether the case withstands an appeal remains to be seen.

The court deferred to a later date the determination of the type of injunctive relief to which the homeowners are entitled. Although monetary damages are not available in a RCRA citizen suit, the court will hold a hearing to determine what actions it will order to cleanup the groundwater contamination. In citizen suit cases, it is the court, not the state regulatory agency, who will oversee the cleanup and compliance with its injunction. In addition to injunctive relief, successful plaintiffs can recover their attorneys’ fees and costs, which are often substantial.

For property owners who have knowledge of significantly contaminated groundwater migrating from their property, consulting with an attorney to develop an appropriate strategy is a prudent move.

For more information on citizen suit claims or environmental management strategies, contact Laura Ringenbach or any member of Taft’s Environmental Practice Group.

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