A New Jersey federal court recently dismissed an environmental suit against Lockheed Martin, rejecting the plaintiffs’ argument that any exposure to particular environmental contaminants is harmful. Leese v. Lockheed Martin Corp., No. 11-5091 (N.J. Dist. Ct. Aug. 12, 2014). In rejecting the plaintiffs’ claims, the district court found that the levels of trichloroethylene (“TCE”) and perchloroethylene (“PCE”) found in the plaintiffs’ groundwater, air and soil were not high enough to pose a health threat.
In Leese, plaintiffs living across the street from Lockheed’s Moorestown, New Jersey plant filed a partial summary judgment motion under the Resource Conservation & Recovery Act (“RCRA”), 42 U.S.C. § 6901, et. seq., arguing that levels of TCE and PCE exceeded pre-2013 screening levels expressed by the New Jersey Department of Environmental Protection (“NJDEP”) and that, in fact, any exposure to TCE or PCE posed a substantial danger. Lockheed opposed the plaintiff’s motion and filed its own motion for summary judgment on the remaining claims under RCRA, the New Jersey Spill Compensation & Control Act (“Spill Act”), N.J.S.A. 58:10-23.11, brought under the New Jersey Environmental Rights Act (“ERA”), N.J.S.A. 2A:35A-1, et seq.; the New Jersey Water Pollution Control Act (“WPCA”), N.J.S.A. 58:10A-1, et seq., brought under the ERA; and the Comprehensive Environmental Response, Compensation & Liability Act (“CERCLA”), 42 U.S.C. § 9601, et seq.
The court granted Lockheed’s motion, finding that the levels of TCE and PCE taken from samples between 2008 and 2012 were below the current NJDEP screening levels (which were adjusted upward based on regional screening data from the U.S. Environmental Protection Agency). Scientific evidence relied on by the EPA and Lockheed Martin demonstrated that the levels of TCE and PCE detected in the soil, air and groundwater were several orders of magnitude below the EPA’s benchmarks.
The plaintiffs did not offer any expert opinion testimony supporting the position that the pre-2013 NJDEP screening levels for TCE and PCE were meant “to identify an exposure or dosage threshold with a measurable heightened risk of harm to humans or the environment, in light of the much higher EPA Minimal Risk Level and reference dose standards associated with the absence of an identified risk for TCE and PCE.” In the absence of any evidence to the contrary, the court relied on the EPA’s benchmarks. Further, the court noted that not all air, soil and water samples contained TCE or PCE, and in certain instances, where the contaminants had been present, they had declined between 2008 and 2012, suggesting improvement.
With regard to the plaintiffs’ claims brought under the ERA, the plaintiffs conceded that they had failed to satisfy the notice requirements. Therefore the court easily granted Lockheed’s motion as to the Spill Act and WPCA claims. As to the CERCLA claims, the court recognized that the plaintiffs, as private parties, were not entitled to injunctive relief for environmental cleanup, nor did they establish that they incurred any response cost under 42 U.S.C. § 9613(g)(2).