A recent federal lawsuit in upstate New York signals increased litigation over vapor intrusion claims, which are already subject to regulatory attention and frequent re-openers of prior cleanups by the New York State Department of Environmental Conservation (“DEC”).

In one of the first cases of its kind in New York, on June 24, 2011, CAEUSA Inc. (“CAE”), a supplier of flight simulators and related products, filed a federal lawsuit against neighboring property owners, seeking $2.1 million in response costs and damages for soil vapor contamination allegedly arising from releases of solvents on neighboring properties.  As a result of soil vapor issues in Endicott, NY and elsewhere, DEC is reviewing, and in many cases, reopening, prior remediation approvals to address soil vapor contamination.    

CAE asserts that, in 1998, it expended approximately $4 million on remediation of soil contaminated with chlorinated solvents at its property near Binghamton, New York pursuant to consent orders with DEC.  CAE later sold that property but retained contractual responsibility for pre-closing contamination.  In 2003, DEC began an extensive investigation of the intrusion of soil gas and soil vapor into properties neighboring the former CAE site.  Based on that investigation, DEC installed more than 120 vapor mitigation systems in the neighboring properties. 

According to the complaint, DEC is seeking $2.1 million from CAE for its costs in investigating the soil vapor contamination and installing the vapor mitigation systems.  In its complaint, CAE alleges that necessary remediation of its property was conducted and that its site is not contributing to the soil vapor contamination of the neighboring properties, where vapor mitigation systems were installed as a result of DEC investigation.  CAE alleges that current and past owners and operators of manufacturing and commercial properties neighboring the former CAE site are responsible for the off-site soil vapor conditions.    

CAE’s complaint presents data showing that soil vapor associated with the plaintiff’s property is minimal in contrast with very high levels at and emanating from the defendants’ properties.  It also presents detailed allegations de-linking the soil vapor contamination from any residual groundwater contamination that could be connected to CAE.  CAE’s lawsuit signals that courts will now be forced to grapple with the complicated issues faced by DEC with respect to soil vapor intrusion: the complexities of site data, the evidence needed to pursue parties for vapor intrusion, and the reopening of cleanups previously approved and closed by the agency.

Sive, Paget & Riesel represents a number of property owners on vapor-intrusion evaluations and re-openings.  For more information on this topic, please contact Christine LeasJeffrey Gracer or Michael Bogin.