1	"New York State Bar Association..." New York State Bar Association Environmental Law Section Friday, January 28, 2005 TOXIC TORTS TODAY – IT’S A REAL GAS Section Chair Virginia C. Robbins, Esq. Program Co-Chairs Stanley N. Alpert, Esq. Walter E. Mugdan, Esq. Cheryl P. Vollweiler, Esq.
2	Vapor Intrusion: What Is It and How Does It Happen? New York State Bar Association Environmental Law Section Matthew Traister, P.E. O’Brien & Gere 5000 Brittonfield Parkway Syracuse, NY 13221 January 28, 2005
3	Overview Description of the VI problem Historical Considerations Key VI Drivers Program Elements VI Program Uncertainties Where is New York headed? Recommendations
4	Vapor Intrusion Pathway Overview
5	Vapor Intrusion Timeline
6	Vapor Intrusion Drivers Revised Toxicity + Unexpected Empirical Data = The “Perfect Storm” … and, possibly, a new environmental paradigm!
7	VI Program Elements Site Screening GW, Soil Vapor, Indoor Air Sampling Mitigation System Design, Construction, Installation Rigorous QA/QC Data Management Public Relations Ambient Air Modeling, Monitoring
8	Vapor Intrusion Potential Decision Tree
9	Subslab Depressurization - Basement Subslab Depressurization - Basement
10	System Photo
11	Design and Construction Issues Special Design and Construction Issues Dirt floors Sumps Slab and wall penetrations/cracks Accessible crawl spaces Inaccessible spaces (heated and unheated) Laid-up stone walls Open-top block foundation walls ACMs Condensation HVAC ductwork
12	Cost Issues Depressurization system costs dependent on: Number of systems being installed as part of overall project Program support requirements Data management Public relations Sampling Ability of subslab conditions to “communicate” pressure gradient Size and complexity of structure being mitigated “Typical” system cost ranges from $3,000 to $20,000 ($20k for new HVAC installations)
13	VI Program Uncertainties See state agencies for guidance/standards Lack of consensus Based on exposure and toxicity assumptions that may not be consistent with current science Based on toxicity criteria, which are subject to change OSWER guidance based on residential chronic exposure RBCs assume 350 days, 30 years, etc. Cancer risk of 10^-6, 10^-5(for EIs), or 10^-4 Workplace OSHA PELs: for industrial/commercial settings with existing OSHA programs for the specific compounds State/EPA guidance: for all other settings OSHA and EPA currently “playing hot potato” Background is a big issue
14	Example Indoor Air Guidance Levels for TCE (µg/m³)
15	New York State’s Guidance Draft guidance for re-opening sites issued November 22, 2004 Other guidance still being developed: Introduction Investigating the pathway Protocols for testing and analysis Data evaluation QA/QC Comparison criteria Recommended actions NYSDOH Indoor air sampling and analysis guidance - currently available
16	Recommendations Corporate and State Approaches are Diverse Develop a strong team of resources (consultants, legal counsel, public relations and analytical) Be proactive! Public meetings/dissemination of project details are an important part of any VI program.
17	Health Risks of Vapor Intrusion Risk Depends on Toxicity and Exposure
18	Chemical Risk Assessment The evaluation of scientific information on the hazardous properties of chemicals, the dose-response relationship, and on the extent of human exposure to those agents. The product of the risk assessment is a statement regarding the probability that populations or individuals will be harmed and to what degree.
19	Four Steps in Risk Assessment
20	Hazard Identification Determination of whether a chemical is or is not linked causally to particular adverse effect (toxicity).
21	Weight of Evidence
22	Four Steps in Risk Assessment
23	Dose-Response Assessment The determination of the quantitative relationship between the exposure to a chemical and the incidence or severity of the effect.
24	Paracelsus (1493 - 1541) ALL CHEMICALS ARE POISONS. THERE IS NONE WHICH IS NOT A POISON. THE RIGHT DOSE DIFFERENTIATES A POISON FROM A REMEDY.
25	Dose-Response Terms Threshold Dose Range of Observation (Points of Departure) NOEL and LOEL BMD Range of Extrapolation RfD and RfC CPF
26	Threshold The dose below which an adverse health effect is not expected is the threshold. Effects with threshold: effects expected at and above threshold dose Effects without threshold: effects expected at all doses above zero A chemical can cause effects with a threshold and effects without a threshold.
27	Reference Concentration (RfC) An estimate with uncertainty spanning an order of magnitude of an ambient air level (mg/m³) for the human population (including sensitive subgroups) that is likely to be without risk of deleterious effects during a lifetime of continuous exposure.
28	Derivation of RfD/RfC Identify most sensitive effect, critical study, relevant species Identify NOEL, LOEL, or BMD (mg/kg/day or mg/m³) Select Uncertainty Factor (UF) - used to compensate for inadequate knowledge about the toxicity of the chemical Divide NOEL, LOEL or BMD by UF
29	Cancer Potency Factor (CPF) Upper-bound estimate of the probability of a response per unit intake of a chemical over a lifetime (a slope, the change in risk with a change in dose). Used to estimate upper-bound probability of an individual developing cancer as a result of a lifetime of exposure to a particular level of a potential carcinogen.
30	Four Steps in Risk Assessment
31	Exposure Assessment Determination of the amount, duration and frequency of actual or estimated exposure of people to a chemical that can adversely affect health.
32	How are Human Exposure Levels Determined? Estimation: Obtain data on measured or estimated levels of chemicals in the environment (e.g., indoor air data). Apply data on contact rates, behavior, body mass, etc. Estimate dose levels. Measurement: Biomonitoring (e.g., exhaled breath, blood, urine samples).
33	Vapor Intrusion
34	Soil Vapor Contaminants Man-made chemical pollutants petroleum spills - may attenuate to some extent solvents - e.g. trichloroethylene, tetrachloroethylene - don’t readily attenuate, very mobile Naturally occurring pollutants radon water vapor methane
35	Indoor Air Levels of Soil Vapor Contaminants Indoor Air Sampling Provides direct evidence of the presence of a contaminant. Snapshot in time. Potential interference of other indoor sources. When to sample (e.g., heating season vs. summer). Where to sample (e.g., basement vs. living space).
36	Indoor Air Levels of Soil Vapor Contaminants Modeling Should require confirmatory sampling. Screening tool: may be useful for suggesting the potential for vapor intrusion concerns. Site-specific applicability. Not applicable in all situations (certain site- and building specific limitations).
37	Four Steps in Risk Assessment
38	Risk Characterization The process of organizing, evaluating, and communicating information about the nature, strength of evidence, and the likelihood of adverse health effects from particular exposures.
39	No Bright Line
40	Soil Vapor Intrusions Legal Issues -- Plaintiffs Federal Claims – Stan Alpert State Claims – Steve Schwarz
41	Contact Information
42	Choice of Federal versus State Court Depends Upon: State versus federal causes of action or claims Perceived value of state court juries Perceived value of pre-trial motion practice and value or detriment to multiple appeals in New York State courts Perceived value of federal court supervision of discovery Perceived value of multi-district federal litigation Genuine availability of federal claims, recently expanded by MDL judge in MTBE litigation References: In re MTBE Litigation, 2004 WL 515535 (S.D.N.Y. 2004) (Scheindlin, J.) Finding federal officer jurisdiction over oil companies in MTBE cases In re MTBE Litigation, 2004 WL 1969121 (S.D.N.Y. 2004) (Scheindlin, J.) Finding no federal officer jurisdiction in non-federal mandate states, but asserting federal bankruptcy jurisdiction
43	Most Apt Federal Claims in Toxic “Tort” Situation RCRA – Resource Conservation & Recovery Act CERCLA – Comprehensive Environmental Response, Compensation & Liability Act There may be others – most federal environmental statutes have citizen suit provisions but they usually deal with permit violations and they provide for civil penalties to the government as the prime remedy, though injunctive relief may be available. See Clean Air Act, Clean Water Act, Toxic Substances Control Act, etc.
44	RCRA – The Main Toxic “Tort” Federal Claim Citizen Suits Provision RCRA, 42 U.S.C.6972(a)(1)(B), provides that injunctive relief may be issued against: any person * * * including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.
45	How imminent and substantial must the danger be? “Plaintiffs need not show actual harm to health or the environment. It is enough to show that such an endangerment may exist. Interfaith Community Org. v. Honeywell Int'l, Inc., supra, 188 F.Supp.2d at 503 (citing 3 S. Cooke, The Law of Hazardous Waste, § § 15.01[3][e] at 15-11 n. 45-47 (2001)). See also Meghrig v. KFC Western, Inc., supra, 516 U.S. at 486, 116 S.Ct. 1251 (imminence "implies that there must be a threat which is present now, although the impact of the threat may not be felt until later");
46	(cont’d) “In Price v. United States Navy, supra, 39 F.3d at 1019, the Ninth Circuit stated: A finding of "imminency" does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present: "An 'imminent hazard' may be declared at any point in a chain of events which may ultimately result in harm to the public." Imminence refers "to the nature of the threat rather than identification of the time when the endangerment initially arose."
47	It’s not just human health “RCRA is not only concerned with threats to human health. Suit may also be brought where there may be "an imminent and substantial endangerment to * * * the environment." 42 U.S.C. 6972(a)(1)(B); PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 618 (7th Cir.1998) (imminent and substantial danger where toxic wastes were buried and posed a "constant danger to the groundwater * * *"); Aiello v. Town of Brookhaven, 136 F.Supp.2d 81, 115 (E.D.N.Y.2001) (imminent and substantial endangerment under RCRA based on harm to environment, even though plaintiffs conceded no harm to human health); Raymond K. Hoxsie Real Estate Trust v. Exxon Educ. Found., 81 F.Supp.2d 359, 367 (D.R.I.2000) (liability under RCRA may be based solely on contamination of groundwater and/or soil at the site in levels "exceeding state standards" because "the statute clearly speaks of endangerment to the 'environment' "
48	Soil Vapor Intrusions are Covered United States v. Elias, 269 F.3d 1003 (9th Cir. 2001): Not precisely on point, and a criminal case, but highly persuasive. After a three-and-a-half-week trial, a jury convicted Elias of four RCRA criminal offenses, the most serious of which was disposing of hazardous waste without a permit, knowing that his actions placed others in imminent danger of death or serious bodily injury in violation of 42 U.S.C. § 6928(e). “Elias ordered four of his employees to enter a tank and wash cyanide-laced sludge out a valve opening in the end, without safety equipment. One issue was whether the waste was “hazardous” (as opposed to merely a “solid waste”), under the hazardous waste definition of “reactivity.” The Court stated: “If a sample from one part of the tank contains wastes reactive enough to cause brain damage to someone, there can be no conceivable purpose in sending other people into the tank to extract more samples. Indeed, under these circumstances, retrieving additional samples would actually disserve RCRA's objectives.
49	(cont’d) “The district court concluded that it would be preferable to have some numerically-quantified, test-based standard for determining whether a substance releasing cyanide gas should be deemed hazardous but that this is not possible given the variety of situations and circumstances in which cyanide may exist and pose a hazard.”
50	RCRA, as Opposed to CERCLA, Requires Active Waste Disposal Interfaith Community Org. v. Honeywell Int'l, Inc., 263 F.Supp.2d 796 (D.N.J. 2003): “The Court finds that a straightforward reading of RCRA compels a finding that only active human involvement with the waste is subject to liability under RCRA § 7002(a)(1)(B). In this regard, RCRA § 7002(a)(1)(B) provides that liability may attach only if a person "has contributed or is contributing to the handling, storage treatment, transportation or disposal of a solid or hazardous waste that may pose an imminent or substantial endangerment to human health or the environment." 42 U.S.C. § 6972(a)(1)(B) (emphasis added). The ordinary meaning of "contribute" is "to act as a determining factor." Webster's II New Riverside University Dictionary (1998). Thus, Congress intended to impose liability only where a person is shown to have affirmatively acted as a determining factor over the waste management activities listed in RCRA 7002(a)(1)(B). No other reading is possible as the phrase "has contributed or is contributing to" in § 7002(a)(1)(B) modifies the specified waste management activities of "handling," "treatment," "transportation," "storage" and "disposal" in that provision.
51	What remedies are appropriate? Sampling Program to Delineate the Problem Vapor filtration systems in the buildings Removal of the solid or hazardous wastes, through pump and treat, soil excavation, or other means Other viable remediation techniques
52	STATE LAW CAUSES OF ACTION IN TOXIC CONTAMINATION CASES By Stephen G. Schwarz, Esq. Faraci & Lange, LLP Rochester, New York
53	Introduction Negligence Trespass Private Nuisance Public Nuisance All require different levels of culpable conduct. Only strict liability in NY on limited statutory claims (e.g. oil spill)
54	Negligence Landowner who engages in activities that may cause injury to persons on adjoining premises surely owes those persons a duty to take reasonable precautions to avoid injuring them.” (see, e.g., Weitzmann v Barber Asphalt Co. Must be some physical injury to person or property. 535 Madison Ave. v. Finlandia
55	Duty and Foreseeability Beck v FMC Corp. Dunlop Tire & Rubber Corp. v FMC Corp. Explosion at FMC plant. Dunlop plant physically damaged by debris. Chevrolet plant 1 mile away closed due to power interruption. Dunlop can recover for property damage, employees (Beck et al., ) of Chevrolet plant cannot sue for lost wages.
56	Trespass “Trespass is an intentional harm at least to this extent: while the trespasser, to be liable, need not intend or expect the damaging consequence of his intrusion, he must intend the act which amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he willfully does, or which he does so negligently as to amount to willfulness.” Phillips v. Sun Oil Co.
57	Private Nuisance “[O]ne is subject to liability for a private nuisance if his conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable; (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities” Copart v. Consolidated Edison,
58	Public Nuisance A public, or as sometimes termed a common, nuisance is an offense against the State and is subject to abatement or prosecution on application of the proper governmental agency. It consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all. Copart Industries Inc. v. Consolidated Edison
59	"Public nuisance claims can be..." Public nuisance claims can be brought as private actions by aggrieved parties, but only if they can show that they suffered a particular harm not common to the public at large. Burns Jackson v. Linder The fact that multiple persons are injured does not make the nuisance such a common one as to exclude redress by a private individual When the class harmed in the same way ‘becomes so large and general as to include all members of the public who come in contact with the nuisance… the private action must fail.’” NAACP v. Acusport, Inc.
60	532 Madison Avenue Gourmet Foods Inc. v. Finlandia Center, Inc., & Goldberg Weprin v. Tishman These cases arose out of a building collapse and a crane accident in Manhattan which each shut down businesses for a number of blocks in midtown. Court of appeals said that purely economic loss suffered by businesses and individuals was common damage and not “particular harm required”.
61	Remedies and Damages The general rule in New York is that the measure of damages for injury to real property is the lesser of the repair costs or the diminution of market value. Jenkins v. Etlinger, There is no requirement that the plaintiff prove both measures of damage. In Jenkins v. Etlinger, 55 NY2d 35 (1982), the Court of Appeals held that when claiming damage to real property, the plaintiff need establish the amount of damages under only one measure, even though others may also be appropriate.
62	Discomfort and Inconvenience - Emotional Injuries Discomfort and inconvenience -“It is well settled that discomfort and inconvenience caused by a disturbance to real property are valid grounds of recovery in an action to recover damages for a nuisance” Taylor v. Liardi Emotional injuries “There is some authority that damages may be awarded for emotional distress caused by the nuisance” Mehlenbacher v. Azko Salt Inc,
63	Personal Injury - Medical Monitoring - Stigma Damages for personal injury can be recovered under all theories. Medical Monitoring Damages - Askey v. Occidental Chemical Corp. Stigma Damages - controversial
64	Soil Vapor Intrusion Legal Discussion – Defense Issues By: Cheryl P. Vollweiler, Esq. Wilson, Elser, Moskowitz, Edelman & Dicker LLP 150 East 42 Street New York, New York 10017
65	Jury Verdicts 2001: Timely Adventures, Inc. v. Coastal Mart, Inc. – Texas jury awards $102 million award ($2m compensatory; $100m exemplary damages) for “potential harm” from a gas pool 30 feet underground with a potential for vapors to migrate vertically (no evidence of intrusion) 2004: Colorado jury awarded over $1 million against a Denver company held responsible for causing vapor intrusion into homes in a residential neighborhood after spending $10 million + remediating groundwater plume believed to be the source of the vapor, testing 700+ homes and installing remediation systems in 300+ homes
66	EPA Administrative Order 2004: absentee landlord in Indiana notified by EPA that indoor air sampling at nearby homes and businesses found levels of hazardous chemicals in amounts higher than IDEM sub-chronic action levels. Chemicals consistent with dry cleaning chemicals (former tenant was a dry cleaner). EPA sought voluntary response activities to determine nature/extent of contamination and stop/control migration of chemicals. Estimated response cost $800,000. EPA issued administrative order under CERCLA sec. 106 directing landlord to give notice of intent to comply or face civil penalties up to $32,500 per violation per day plus punitive damages up to treble response costs Landlord complied.
67	Potential Claimants EPA DEC Department of Health (may have statutory authority to require the facility to address the contamination) Citizen Suits (?)
68	Causes of Action Negligence Trespass Public Nuisance Private Nuisance CERCLA RCRA
69	Damages Cost of corrective action Diminution in property value Stigma damages Medical monitoring Punitive damages Costs of litigation Equitable and injunctive relief
70	“Fear of” Future Injury Claims Potential claim splitting If a P recovers for “fear of”/cancerphobia but develops a disease years later, can P sue again for actual injury? Courts are split PA – can’t recover for distress damages in anticipation of cancer, but can sue if future illness develops Simmons v. Pacor 674 A.2d 222 (Pa. 1996) 5^th Circuit: can recover distress damages but can’t sue again for later developing illness/injury Gideon v. Johns-Manville 761 F.2d 1129 (5^th Cir,. 1985)
71	Medical Monitoring Kentucky: if P recovers for medical monitoring, cannot sue for later illness Wood v. Wyeth-Ayerst Labs, 82 S.W.2d 849 (Ky. 2002) Florida: can recover medical monitoring and sue a second time for developing the feared illness/injury Petito v. A.H. Robins, 750 So. 2d 103 (Fl. App. 2000) U.S. Supreme Court: under FELA P cannot recover medical monitoring without a showing of some actual disease Metro-North Railroad v. Buckley, 521 U.S. 424 (1999) In a class action, could be huge future exposure long after all other aspects are resolved and closed Absent a definitive statement from a high court, Defendants may never be able to buy their peace
72	Toxicogenomics New scientific theory on how particular toxins cause a gene’s expression to change on a cellular and molecular level Based on DNA microarrays or chips which simultaneously monitor a gene’s expression Could be used to determine whether a particular gene sequence has changed in a way that is associated with cancer or other disease(s)
73	"Possible uses:" Possible uses: Prove or disprove causation in all types of toxic tort exposure cases Negate causation by showing a genetic predisposition or expression consistent with exposure to some other product or toxin Show cancer or illness pre-dated exposure to toxin
74	Possible Drawbacks Very new theory and reliability has not yet been established Critics argue that testing 1 or 2 genes ignores environmental factors that can contribute to onset of disease Stress and other external factors can affect gene expression Some changes in gene expression have nothing to do with toxicity (e.g., apparently, eating Brussels Sprouts and exposure to Dioxin have same impact on gene expression) Requires expert testimony and will have to pass Daubert requirements before it can be a useful tool
75	Punitive Damages Despite $100 million exemplary damages award in Texas soil vapor intrusion suit in 2001, U.S. Supreme Court 2003 decision in State Farm v. Campbell limits amount of punitive damages that will pass constitutional muster In addition to applying BMW v. Gore guideposts, Court opined that a ratio of punitive to compensatory damages of 4:1 is “close to the line” and an award with a ratio greater than single digits (9:1) would rarely, if ever, be appropriate
76	“Fear of Property Damage”? Carter v. Monsanto Corp., 575 S.E.2d 342 (W.V. 2002) P commenced class action on behalf of property owners abutting a creek downstream from 2 landfills alleging private nuisance Ds were responsible for contaminating landfill with dioxin which spread to adjacent waterways and downstream to creek P attempted to recover monitoring costs for future property damage because creek water potentially deposited toxins on Ps property Ps argued that landfill owners and polluters should pay to quantify amount of dioxin on P’s property plus monitoring for future damage based on evidence of “a well-founded fear” of future property damage , which shifted the burden to Ds to test/monitor
77	"Court rejected the argument opining..." Court rejected the argument opining that “Fear alone is not enough to recover under private nuisance law”. (Id.) Distinguished from medical monitoring cases based on absence of any exposure to a hazardous substance here P ordered to pay own costs for evidence-gathering for the nuisance claim Court did not specifically foreclose potential for property monitoring if P can establish exposure plus reasonable fear
78	Defense Issues Statue of limitations Standing (issue if citizen suits are permitted) Venue Historically, federal court is D’s preferred venue Recent decisions may temper this: MTBE MDL - Judge Scheindlin decisions re: federal officer jurisdiction – Ps argued that even though Ds used MTBE at the direction of EPA, use of MTBE in states outside the federal Reformulated Gasoline (RFG) program (CA, FL, IN, IO, KS, LA, VT, VA and WV) were not subject to federal jurisdiction and should be remanded Judge ruled Federal officer jurisdiction existed for CA, IN, VT and VA but not for FL, IO, KS, LA and WV), but kept jurisdiction based on federal bankruptcy jurisdiction Had a D not been insolvent, effect would have been to dismantle a piece of the MDL and send it back to 5 other state courts for further proceedings
79	Cooper Industries v. Aviall Services December 2004 U.S. Supreme Court decision in Cooper Industries v. Aviall Services, Inc., 125 S.Ct. 577 (2004) Contribution issue – court held that a liable party cannot sue another for contribution toward cleanup costs for a CERCLA contaminated site without first being involved in a civil action or settlement with the EPA Reversed a 5^th Circuit decision that permitted Aviall to sue Cooper under CERCLA sec. 113(f) even though no civil action had been commenced by EPA under sec. 106 or 107
80	Aviall Facts Aviall purchased 4 airplane engine maintenance facilities in TX from Cooper in 1981. While operating the facilities, petroleum and other hazardous substances from spills and leaky USTs contaminated the groundwater. Pollution continued while Aviall operated sites, but Aviall discovered it in a few years and reported it to the Natural Resource Conservation Commission. NRCC sent out notices of violation but never contacted Aviall or designated the facilities as contaminated sites In 1984, Aviall began a decade-long multi-million dollar remediation
81	"Aviall sued Cooper in Texas..." Aviall sued Cooper in Texas federal court seeking contribution under CERCLA 107(a) Amended complaint to assert contribution claim under 113(f)(1) which provides that “any person may seek contribution from any other person potentially liable under 107… during or following any civil action under 106 or 107.” Savings clause of sec. 113 provides: “nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under Section 106 or 107.”
82	Supreme Court Decision U.S. Supreme Court in 7-2 vote held that section 113(f)(1) does not authorize Aviall’s contribution suit nor does the savings clause give Aviall a cause of action against Cooper Adopted a narrow interpretation that 113 authorizes contribution claims only “during or after a 106 or 107 civil action”. Court refused to address whether Aviall could recover cleanup costs under 107(a)(4)(B) even though it is a PRP; or whether Aviall has an implied right to contribution under 107
83	"Dissenting Justices Ginsberg and Stevens..." Dissenting Justices Ginsberg and Stevens opined that Key Tronic v. U.S., 511 U.S. 809 (1999) specifically held that a cause of action for contribution exists for PRPs to seek recovery of cleanup costs and 5^th Circuit properly viewed sec. 107 to give Aviall a cause of action, and sec. 113(f)(1) to provide the procedural framework Questionable effect – if a D voluntarily remediates before EPA commences an action, Aviall decision suggests possible forfeiture of right to contribution under federal law (Aviall does not impact any state cause of action for contribution) Should a D wait to be sued by EPA to preserve contribution right rather than acting voluntarily to remediate?
84	Issues in Defending Citizen Suits Standing - Supreme Court has adopted liberal view of who has standing to commence a citizen action so need to address it realistically and avoid unnecessary motion practice P must allege cognizable injury in fact caused by unlawful activity and injury must be redressable (requires more than just an interest that all citizens have in lawful and constitutional governance) See, Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
85	"Adequate Notice – federal courts..." Adequate Notice – federal courts strictly enforce 60 day notice requirement as a mandatory prerequisite for commencement of citizen action Hallstom v. Tillamook, 493 U.S. 20 (1989) Not all states adhere to the equivalent state notice requirements for citizen suits
86	"Civil penalties:" Civil penalties: P can seek civil penalties of the violation is not substantially corrected before the citizen action is filed (not concluded) Friends of the Earth v. Laidlaw No jurisdiction for wholly past violations If violations corrected before suit ends, can defend on showing of no ongoing violation or imminent threat of harm
87	"Citizens cannot sue if the..." Citizens cannot sue if the state or federal government has commenced and is diligently prosecuting a civil or criminal court action to correct the violation D cannot collaborate with state agencies to hasten a lawsuit just to avoid a citizen suit, but quickly moving along a state enforcement action to conclusion may avoid a citizen suit Spilt in the Circuit Courts as to what is a sufficient state action (3^rd Cir. Says administrative enforcement action is adequate; 2^nd, 5^th and 9^th Circuits require actual civil or criminal court action) to bar a citizen action
88	Defense of Citizen Suit Effective and efficient defense of a citizen suit requires prompt and accurate analysis of the likelihood of P’s success and early resolution effort if it appears that P has sustainable claim Mediation may be a good option to avoid liability and civil penalties even before a citizens suit is commenced
89	Defense Strategies Early internal and external coordination of resources is critical Document D’s story early and thoroughly by collecting documents and interviewing witnesses long before first round of discovery responses are due to establish a clear defense strategy early Crisis management may be advisable at early stages to coordinate multiple legal, commercial, news media, science, public relations, government relations, industry-wide relations that co-exist and operate simultaneously Realistically assess D’s most reasonable and cost effective resolution strategy as early as possible and move toward that goal (alternate dispute resolution? Settlement?)
90	Defense Strategies Continued Work with the government where possible to resolve issues Use PR tools to educate the public/ consumers who are potential class action Ps Keep litigation costs down (e.g., MDLs or state consolidations where possible, early intervention to address pre-litigation claims, early settlements at reasonable figures that will not encourage additional claims) Insurers are not your enemies
91	The End WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 150 East 42 Street New York, NY 10017
92	Environmental Insurance: Soil Vapor Intrusion Michele Schroeder michele.schroeder@zurichna.com Assistant Vice President and Counsel Zurich Environmental and Design Professional
93	Examples of Typical Environmental Liabilities
94	Types of Environmental Policies Sites Environmental Impairment Liability and Cleanup* Real Estate Environmental Liability Remediation Stop Loss aka Cost Cap Post Remediation Care (Institutional Controls) Asbestos and/or Lead In Place Lender Collateral Protection Storage Tank Liability* Services Contractors Pollution Liability Professional Environmental Consultants
95	Environmental Liability Policies, Generally Speaking Claims made coverage Unknown pollution - fortuitous risk First party discovery trigger (selected site policies) governmental authority requirement cleanup costs only, except costs to confirm pollution Third party claim trigger (all policies) demand bodily injury, property damage, cleanup, nrd Known pollution cost cap - capitate costs above SIR for remediation plan re-openers - remedy failure
96	Vapor Intrusion - Scope of Insurable Pollution Pollution event - inorganic “...discharge, dispersal, release or escape of any solid, liquid, gaseous or thermal irritant, contaminant or pollutant, including, smoke, vapors, soot, fumes, acids, alkalis, chemicals and waste…” Example of common vapor intrusion contaminants chlorinated solvents, methane
97	Microbial Matter - Not Within Scope of Pollution* Microorganisms including fungus, bacteria,viruses, protozoa, chlamydiae, rickettsiae, including any other disease or biogenic structure caused or produced directly or indirectly by a microorganism Common cold, flu or allergy-like symptoms Legionnarie’s disease Severe Acute Respiratory Syndrome (SARS) Public Health concern vs. Environmentally regulated material *policy contains naturally occurring materials and microbial matter exclusion
98	Potential Vapor Intrusion Damage Indoor air quality - monitoring and mitigation systems Trespass/nuisance/tort - odor, bodily injury (tangible and intangible) Devaluation of Property (perception) Explosive nature (venting) - ie: methane - property damage Mitigation - install, operate and monitor engineering controls
99	Vapor Intrusion - Scope of Insurable Injury Bodily Injury “physical injury, sickness, disease, mental anguish, or emotional distress sustained by any person, including death resulting therefrom. ???Coverage?? Bodily injury Intangible damages - Fear of future injury - “cancerphobia” Recovery for medical monitoring costs
100	Vapor Intrusion - Scope of Insurable Damage Property Damage “physical injury to or destruction of tangible property including the resulting loss of use thereof; loss of use of tangible property that has not been physically injured or destroyed; cleanup costs; natural resource damages” ???Coverage??? Investigation; remediation; monitoring; engineering controls ie: caps; mitigation systems, ie: soil vapor gas collection systems and other technologies Re-engineer - remedy and/or institutional controls Intangible damages Interference with property rights - odor, noise, light; Diminution in property value; Stigma damages