LEESE et al v. MARTIN et al

Filing 167

OPINION. Signed by Chief Judge Jerome B. Simandle on 8/12/2014. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MICHAEL LEESE, et al.,

HONORABLE JEROME B. SIMANDLE

Plaintiffs,
Civil Action
No. 11-5091 (JBS/AMD)

v.
LOCKHEED MARTIN CORP.,

OPINION
Defendant.

APPEARANCES:
Julie A. LaVan, Esq.
Alaina A. Gregorio, Esq.
Drew Chigounic, Esq.
LAVAN LAW
11 East Maine Street, 2nd Floor
Moorestown NJ 08057
Attorneys for Plaintiffs
Robert L. Ebby, Esq.
Steven T. Miano, Esq.
Robert A. Wiygul, Esq.
HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER
One Logan Square, 27th Floor
Philadelphia PA 19103
Attorneys for Defendant

SIMANDLE, Chief Judge:
I.

INTRODUCTION
This action alleges that hazardous chemicals released on

Defendant Lockheed Martin Corp.’s property in Moorestown, N.J.,
have migrated and contaminated adjacent residential properties.
Plaintiffs -- Michael and Ashley Leese and their three children,

and Jay and Raquel Winkler -- who own homes across the street
from the Lockheed Martin facility, bring four claims under
federal and state environmental statutes and seek an injunction
to implement certain environmental measures to prevent and
remediate environmental contamination, as well as civil
penalties and attorneys’ fees. The Court previously granted
summary judgment in favor of Defendant on claims alleging
personal injury and loss of property value.
This matter is before the Court on two motions for summary
judgment on the environmental claims. Plaintiffs have filed a
motion for partial summary judgment on their claim under the
Resource Conservation & Recovery Act (“RCRA”), 42 U.S.C. § 6901,
et seq. [Docket Item 137.] Defendant opposes the motion and
files its own motion for summary judgment on all remaining
claims: RCRA (Count III); 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. (Count I); the New Jersey Water Pollution
Control Act (“WPCA”), N.J.S.A. 58:10A-1, et seq., brought under
the ERA (Count II); and the Comprehensive Environmental
Response, Compensation & Liability Act (“CERCLA”), 42 U.S.C. §
9601, et seq. (Count IV). In opposition to Defendant’s motion,
but without filing a cross-motion, Plaintiffs “ask the District
Court to grant summary judgment in their favor on Counts I
2

through III.” (Pl. Opp’n [Docket Item 145] at 1.) Plaintiffs do
not request summary judgment on the CERCLA claim (Count IV) and
offer no opposition to Defendant’s motion on that claim. Thus,
the portion of Defendant’s motion for summary judgment
pertaining to CERCLA is unopposed.
The Court heard oral argument on July 9, 2014. For the
reasons explained below, the Court will deny Plaintiffs’ motion
for partial summary judgment and grant Defendant’s motion for
summary judgment. Plaintiffs concede that they did not satisfy
the notice requirements of the ERA and offer no argument in
favor of departing from Third Circuit and New Jersey precedent
that describes the ERA notice requirements as a mandatory
precondition to filing suit. Accordingly, Defendant is entitled
to summary judgment on the Spill Act and WPCA claims. Defendant
is entitled to summary judgment on the CERCLA claim, as
injunctive relief for environmental cleanup is not available to
private parties, and Plaintiffs have not demonstrated that they
incurred any response costs under 42 U.S.C. § 9613(g)(2).
Finally, Defendant is entitled to summary judgment on the RCRA
claim because Plaintiffs fail to present evidence from which a
reasonable factfinder could find that the contamination in the
levels detected here may pose an “imminent and substantial
endangerment” to health or the environment.

3

II.

BACKGROUND
A.

Property ownership and environmental background

Over the years, several different corporations have owned
the property along Borton Landing Road on which the Defendant’s
research, development and manufacturing facility now sits,
including RCA Corp., General Electric Co., and Martin Marietta
Corp. (Def. Statement of Undisputed Material Facts (“Def. SMF”)
[Docket Item 140] ¶¶ 1-2.) In 1986, the New Jersey Department of
Environmental Protection (“NJDEP”) executed an Administrative
Consent Order (“ACO”) with RCA to clean up the facility and to
monitor environmental conditions. (Id. ¶¶ 11-12.) When Martin
Marietta acquired the facility, in 1993, it did so subject to
requirements of an amended ACO. (Id. ¶¶ 13-14.)
In 1994, the property now known as the Wexford residential
development, across Borton Landing Road from the facility, which
contains the properties that Plaintiffs would purchase in 2003,
was sold to Chesapeake Park, D.C., a division of Lockheed
Martin. (Plaintiffs’ Statements of Undisputed Material Facts
(“Pl. SMF”) [Docket Item 146] ¶ 10.) After Defendant’s merger
with Martin Marietta, Defendant monitored and sampled
groundwater at and near the facility under NJDEP supervision.
(Id. ¶¶ 36-37.)
In 1996, Chesapeake contracted with a firm to conduct a
“Phase I” environmental assessment of Wexford. (Id. ¶ 11.) That
4

assessment included a report from 1990, known as the “Doremus
Report,” which stated that the Wexford property should not
“presently” be developed for residential purposes. (Pl. Ex. 8 at
LMC0197373.) After Defendant acquired what would become the
Wexford property, Defendant sold the property to a developer.
(Pl. SMF ¶ 22.)
In 2003, the Leeses purchased a home at 5 Victoria Court,
and the Winklers purchased a home at 7 Victoria Court. (Id. ¶
24.) At the time of purchase, Plaintiffs were informed that
groundwater under their properties contained trichloroethylene
(“TCE”), a volatile organic compound (“VOC”) frequently used in
metal cleaning operations. No similar disclosures were made
about the presence of tetrachloroethylene, also known as
perchloroethylene (“PCE”), which is a VOC used in dry-cleaning
and metal-cleaning products and for textile processing.
Plaintiffs’ homes have been connected to municipal water since
the time they were built (Def. SMF ¶ 6), and thus do not draw
upon groundwater.
According to information from the U.S. Environmental
Protection Agency (“EPA”), TCE has been measured in the ambient
air at levels between 0.01 µg/m3 (micrograms per cubic meter) and
3.9 µg/m3, and “most municipal water supplies are in compliance

5

with the maximum contaminant level of 5 µg/L.”1 (Pl. Ex. 35 at
1.) The EPA primer describes acute and chronic effects of TCE
exposure, and states that TCE “is a likely human carcinogen,”
but that the “EPA does not currently have a consensus
classification for the carcinogenicity of trichloroethylene.”
(Id. at 2-3.) The Agency for Toxic Substances and Disease
Registry (“ATSDR”), referenced in the EPA primer,
has calculated an intermediate-duration inhalation
minimal risk level (MRL) of 0.1 parts per million
(ppm) (0.5 milligrams per cubic meter, mg/m3)2 for
trichloroethylene based on neurological effects in
rats. The MRL is an estimate of the daily human
exposure to a hazardous substance that is likely to be
without appreciable risk of adverse noncancer health
effects over a specified duration of exposure.
Exposure to a level above the MRL does not mean that
adverse health effects will occur.
(Id. at 2.) The California Environmental Protection Agency “has
calculated a chronic inhalation reference exposure level of 0.6
mg/m3 based on neurological effects in humans. The CalEPA
reference exposure level is a concentration at or below which
adverse health effects are not likely to occur.”3 (Id.)
According to the EPA, PCE in the air has a “Reference
Concentration” of 0.04 milligrams per cubic meter, or 40 µg/m3.
(Pl. Ex. 36 at 2.) A Reference Concentration

1

Five micrograms per liter is equivalent to 5000 µg/m3.

2

0.5 milligrams per cubic meter is equivalent to 500 µg/m3.

3

0.6 milligrams per cubic meter is equivalent of 600 µg/m3.
6

is an estimate (with uncertainty spanning perhaps an
order of magnitude) of a continuous inhalation to the
human population (including sensitive subgroups) that
is
likely
to
be
without
appreciable
risk
of
deleterious noncancer effects during a lifetime. It is
not an estimator of risk but rather a reference point
to gauge the potential for effects. . . . Lifetime
exposure above the RfC does not imply that an adverse
effect would necessarily occur.
(Id.) The EPA estimates that the “Reference Dose” for PCE is
0.006 milligrams per kilogram body weight per day, or 6 µg/kg/d.
A Reference Dose
is an estimate (with uncertainty spanning perhaps an
order of magnitude) of a daily oral exposure to the
human population (including sensitive subgroups) that
is
likely
to
be
without
appreciable
risk
of
deleterious noncancer effects during a lifetime. . . .
Lifetime exposure above the RfD does not imply that an
adverse health effect would necessarily occur.
(Id.) The EPA has only “medium confidence” in both the Reference
Concentration and the Reference Dose, because of problems with
the data and studies from which the benchmarks were derived.
(Id.) The EPA estimates that
if an individual were to continuously breathe air
containing tetrachloroehtylene [PCE] at an average of
4 ug/m3 [micrograms per cubic meter] over his or her
entire lifetime, that person would theoretically have
no more than a one-in-a-million increased chance of
developing cancer as a direct result of breathing air
containing this chemical.
(Id. at 3.) An individual “continuously breathing air containing
40 µg/m3 . . . would result in not greater than a one-in-ahundred thousand increased chance of developing cancer . . . .”
(Id.)
7

Beginning in December 2008, Plaintiffs and Defendant tested
soil, indoor air and groundwater samples from their properties
to monitor TCE and PCE concentrations. These two contaminants
were detected in less than half of all of the samples collected
by the parties between 2008 and 2012.4 (Pl. Ex. 51.)
B.

Screening levels

Because the presence and concentration of TCE and PCE on
and around Plaintiffs’ properties are critical facts in this
litigation, and because the NJDEP “screening levels” put those
numbers in context, the Court pauses for a brief aside. The
parties appear to dispute whether the concentrations of TCE or
PCE ever have been detected above NJDEP screening levels on
Plaintiffs’ properties. Screening levels are benchmark
concentrations of contaminants which generally “dictate when
certain concentrations of compounds require additional testing.
The screening levels do not necessarily indicate levels at which
4

Approximately 23 of 54 samples contained measurable amounts of
TCE or PCE. (Pl. Ex. 51.) Plaintiffs argue that other VOCs were
detected on the property and should be considered in this
analysis, but Magistrate Judge Donio previously denied
Plaintiffs’ request to withdraw their admission that “TCE and
PCE are the only hazardous substances that plaintiffs were
exposed to and only hazardous substances that the plaintiff[s]
contend contaminated their properties.” (Tr. of Tel. Conf.
before the Hon. Ann Marie Donio on 4/4/13 [Docket Item 79] at
14:23-15:1, 16:10-25, 17:11-18:9.) Because Plaintiffs admitted
that TCE and PCE were the only VOCs at issue in this case, and
because Magistrate Judge Donio denied Plaintiffs’ request to
withdraw that admission, the Court will not consider any
arguments concerning other VOCs.
8

compounds become hazardous to health.” Leese v. Lockheed Martin,
No. 11-5091, 2013 WL 5476415, at *2 n.6 (D.N.J. Sept. 30, 2013)
(citation omitted).5 The use of NJDEP screening levels is not
appropriate in all situations, however. (See, e.g., N.J. Dep’t
of Envtl. Protection, Vapor Intrusion Technical Guidance 7 (Mar.
2013) (Pl. Ex. 33A) [Docket Item 153-2] (“If the conditions
above are not met, the Department’s GWSL [Ground Water Screening
Levels] should not be utilized in assessing the VI [Vapor
Intrusion] pathway.”).) Additionally, there are situations in
which certain contamination that does not exceed screening
levels may nonetheless trigger further investigation. (See id.
(“Soil gas results that do not exceed the SGSLs [Soil Gas
Screening Levels] may or may not suggest further
investigation”).)
The disagreement between the parties stems largely from the
fact that in 2013, well after the samples were collected from
Plaintiffs’ properties, the NJDEP adjusted upward its statewide
screening levels based on regional screening level data from the
5

NJDEP documents further illustrate the role screening levels
play in environmental investigation. “If the contaminant
concentration in any ground water sample exceeds its applicable
GWSL [Ground Water Screening Level], the ground water may be
resampled to confirm the presence of contamination provided the
initial results do not exceed three times (3X) the GWSL. Two
confirmation samples should be collected . . . . An exceedance
of these screening levels will necessitate further evaluation
and possible mitigation . . . .” (N.J. Dep’t of Envtl.
Protection, Vapor Intrusion Technical Guidance 5 (Mar. 2013)
(Pl. Ex. 33A) [Docket Item 153-2]).)
9

U.S. Environmental Protection Agency (“EPA”), for the hazardous
substance at issue, among others. (See Pl. Ex. 50 at 1.) For
example, the NJDEP screening level for PCE in soil was adjusted
from 34 µg/m3 to 470 µg/m3. Plaintiffs dispute whether the new
screening levels apply to this analysis. They argue that the
NJDEP’s “implementation strategy” describes how the new
guidelines should affect existing NJDEP cases and contend that
Defendant has not met all of the new requirements. (See N.J.
Dep’t of Envtl. Protection, NJDEP Implementation Strategy for
Revised Vapor Intrusion Screening Levels (Mar. 2013), marked as
Pl. Ex. 50.) However, the NJDEP’s guidance to investigators
about assessing environmental conditions for NJDEP purposes
(when, for instance, mitigation processes are already in place
or a party requests a reclassification) is not relevant to the
questions before the Court. The ultimate inquiry for the Court,
as explained below, is whether the VOCs may present an imminent
and substantial endangerment to health or the environment, a
question that does not turn on NJDEP screening guidelines, per
se, or instructions by the NJDEP to investigators. Although the
comparison of TCE and PCE concentrations to screening levels may
tend to support or refute a claim that contamination poses a
health or environmental risk, proof of contamination in excess
of state standards is not an element of RCRA. See Interfaith
Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248, 261 (3d Cir.
10

2005). Plaintiffs do not explain the significance of the old
screening levels and do not articulate how the old NJDEP
screening levels reflect the most current environmental science
or policy, as expressed by the NJDEP or the EPA in the 2013
screening levels. The Court concludes that the most relevant
benchmark with which to compare test results is the 2013 NJDEP
screening levels, which reflect more recent data and guidance
from the EPA than the previous screening levels. (See Pl. Ex. 50
at 1.)6 As will be explained below, in the absence of expert
opinion testimony to the contrary, it is not a reasonable
6

The NJDEP periodically revises its screening levels for
hazardous substances in water, soil vapor, and vapor inhalation
(“VI”). For example, the NJDEP issued its updated “Vapor
Intrusion Technical Guidance” document (Pl. Ex. 33) in March
2013. In explaining its updated screening standards for the
investigation of vapor intrusion generally, the NJDEP stated:
This technical guidance incorporates a risk-based,
staged approach to evaluate the potential for VI
[Vapor Intrusion] associated with contaminated sites.
The document has been developed after consideration of
the latest state of the science procedures and
methodologies currently included in the United States
Environmental
Protection
Agency
(USEPA),
ASTM,
Interstate Technology and Regulatory Council (ITRC),
State and industry guidance that address the VI
pathway.
(Id. at 3.) Methodologically, the testing protocol suggests
obtaining two follow-up samples evenly spaced within 60
days of the initial sampling, and then averaging the
results to determine if the screening level is exceeded.
(Id. at 5.) This supports that a single, unaveraged sample
level may be a spike or outlier not representative of the
substance concentration, and that such samples should be
averaged over time before determining whether the screening
level has been exceeded.

11

inference that the NJDEP screening levels for TCE and PCE,
whether old or new, are meant to identify an exposure or dosage
threshold associated with a measurable heightened risk of harm
to humans or to 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 or PCE.
C.

Test results for TCE and PCE

For the sake of clarity and efficiency, Defendant compiled
a summary chart of test results for TCE and PCE from 2008, 2009
and 2012. (Def. Ex. 10 [Docket Item 139-12].) Plaintiffs have
repeatedly objected to the accuracy of Defendant’s summary chart
compiling test results for TCE and PCE, but have not pointed to
any specific inaccuracies or material omissions in the data or
specific evidence to the contrary. At oral argument, Plaintiffs
supplied a modified summary chart purporting to highlight “the
inaccuracies in Defendant’s version.” (Pl. Ex. 51.) However,
Plaintiffs did not identify any inaccuracies or omissions in the
reported test results: they merely added a column to the chart
showing the NJDEP screening level that had been in place at the
time the samples were taken, for the sake of comparison with the
current NJDEP screening levels used in the Defendant’s chart. As
the Court will explain below, Plaintiffs have not cited any
evidence that PCE or TCE have been detected on their properties

12

above currently applicable NJDEP screening levels at any point
between 2008 and 2012.7
In 2008, the NJDEP directed Defendant to conduct
precautionary soil vapor testing at nearby properties, including
those owned by Plaintiffs. TCE was not detected at the Leeses’
property, but PCE was detected at low levels in soil samples,
including two samples above the then-applicable screening level.8

7

The Court has provided Plaintiffs ample opportunity to contest
the accuracy of any data contained in the summary chart. [See
Docket Item 154 (requesting that the parties “please be prepared
to identify what evidence, if any, demonstrates inaccuracies in
Defendant’s summary chart of test results (Def. Ex. 10 [Docket
Item 139-12]), or demonstrates that the chart contains material
omissions” at oral argument).] The Court also has invited
Plaintiffs, in writing and at oral argument, to identify with
specificity any evidence in the record that demonstrates
concentrations of contaminants above the currently applicable
screening levels. [See id. (requesting that the parties “please
be prepared to identify with specificity what evidence, if any,
shows concentrations of contaminants on Plaintiffs’ properties
above currently applicable NJDEP screening levels”).] Plaintiffs
have not identified any specific data that show concentrations
of contaminants above the current screening levels on
Plaintiffs’ properties. Defendant has relied on the summary
chart for two rounds of summary judgment motions. See Leese,
2013 WL 5476415, at *3 n.7; (Def. Ex. 10). Plaintiffs have only
ever contested whether Defendant included the relevant NJDEP
screening level numbers. See Leese, 2013 WL 5476415, at *3 n.7;
(Pl. Ex. 51). Because Plaintiffs have not identified any
specific inaccuracies or material omissions in the test result
data, the Court will rely on the summary as an accurate
representation of test results. There is no genuine issue of
fact as to the test results obtained for TCE and PCE herein. All
citations to sample test results are drawn from Plaintiffs’
Exhibit 51.
8

Two samples showed PCE in concentrations of 44 µg/m3 and 71.9
µg/m3, above the 2007 screening level of 34 µg/m3, but below the
current screening level of 470 µg/m3.
13

Both PCE and TCE were detected at very low levels in soil
samples from the Winklers’ property, below the then-applicable
screening levels. The NJDEP concluded that no further monitoring
was warranted at the Winklers’ home, but Defendant conducted
additional testing of the Leeses’ property in January and April
2009. (Pl. SMF ¶¶ 47 & 49; Pl. Ex. 51.)
One indoor air sample from the Leeses’ home in January 2009
contained PCE at 5.3 µg/m3, above the then-applicable screening
level of 3 µg/m3, but below the current screening level of 9
µg/m3. No other tests in January or April 2009 detected PCE or
TCE in the soil, indoor air or groundwater at levels above
either the then-applicable or current screening levels at 5
Victoria Court.
Plaintiffs conducted their own testing in November 2012,
and no tests have been conducted after that date. The 2012
testing did not reveal the presence of TCE in the indoor air or
soil at 5 Victoria Court, but TCE was measured in the
groundwater in concentrations of 0.59 µg/m3 and 0.86 µg/m3, below
both the current screening level of 2 µg/m3 and the previous
screening level of 1 µg/m3. PCE was not detected in the
groundwater at 5 Victoria Court, but was detected in the indoor
air (at concentrations of 0.43 µg/m3 and 0.46 µg/m3, below both
the current screening level of 9 µg/m3 and the previous screening
level of 3 µg/m3) and in the soil (at a concentration of 51
14

µg/m3, well below the current screening level of 470 µg/m3, but
above the previous screening level of 34 µg/m3).9 In sum, no
samples from 5 Victoria Court in November 2012 contained either
TCE or PCE in concentrations that approach the current NJDEP
screening levels.
In fact, none of the sample results collected from 5
Victoria Court between 2008 and 2012 ever revealed
concentrations of TCE or PCE at or above the current NJDEP
screening levels. The concentrations of PCE in the indoor air
and TCE in the soil were both lower in 2012 than they had been
in previous samples.10 One soil sample from 2012 contained PCE at
51 µg/m3, which was higher than four previous sample results but
below the 71.9 µg/m3 detected in December 2008, and well below
the screening level of 470 µg/m3. The only other increase
measured in 2012 was the level of TCE in the groundwater, at
0.86 µg/m3, up from a 2009 measurement of 0.77 µg/m3. Again, both
of these results are below the current screening level of 2 µg/m3
and the previous screening level of 1 µg/m3.
A similar picture emerged at 7 Victoria Court. TCE was not
detected in the indoor air or the soil in 2012 but was detected

9

PCE was not detected in a second soil sample from 5 Victoria
Court in 2012.
10

PCE was detected in the indoor air at 5.3 µg/m3 in January 2009
but only at 0.43 µg/m3 and 0.46 µg/m3 in 2012. TCE was detected in
the soil at 4.8 µg/m3 in April 2009 but not detected in 2012.
15

in the groundwater in concentrations of 1 µg/m3 and 1.3 µg/m3,
below the current screening level of 2 µg/m3, but at or above the
previous screening level of 1 µg/m3. PCE was not detected in the
groundwater or the soil, but was measured at concentrations of
0.37 µg/m3 and 0.41 µg/m3 in the indoor air, below both the
current screening level of 9 µg/m3 and the previous screening
level of 3 µg/m3. The concentrations of TCE and PCE both declined
in 2012, compared with previous testing.11 None of the sample
results collected from 7 Victoria Court between 2008 and 2012
ever revealed concentrations of TCE or PCE at or above the
current NJDEP screening levels.
Plaintiffs also provide evidence of two plumes of
groundwater across Borton Landing Road, although the exact
locations of those plumes in relation to Plaintiffs’ properties
is not explained in the exhibit cited. (Pl. Ex. 27 at 2.) TCE in
the groundwater plumes across Borton Landing Road on Defendant’s
industrial property had been detected in concentrations ranging
from “non-detect to 58 µg/m3” in 2008 or 2009, or up to 29 times
the current groundwater screening level of 2 µg/m3. (Id.)

11

In December 2008, PCE was detected in the soil at 7 Victoria
Court at concentrations of 14 µg/m3 and 8.8 µg/m3, below both the
previous screening level of 34 µg/m3 and the current screening
level of 470 µg/m3. PCE was not detected in soil samples
collected in November 2012. In December 2008, TCE was detected
in the soil at a concentration of 4.9 µg/m3, below the screening
level of 27 µg/m3, but was not detected in samples in November
2012.
16

Overall, for both 5 Victoria Court and 7 Victoria Court, no
sample of soil gas, groundwater or ambient air, in all the
evidence in this case, exceeds the current NJDEP screening
levels for TCE or PCE. The test results also show a general
pattern of diminution from 2008 to 2012, suggesting that the
situation for TCE and PCE at these properties is improving, with
no reasonable inference that these concentrations of TCE and PCE
will ever increase, let alone that an increase to levels risking
heath is “imminent.”12
D.

Remediation measures

The parties dispute what remediation measures Defendant
currently has in place, although these disputes are not material
facts, as explained below. Plaintiffs contend that “monitored
natural attenuation,” or “MNA,” is “the only form of remedial
action Defendant is conducting at the Facility, and only for
TCE.” (Pl. SMF ¶ 77.)13 Defendant counters that it has installed

12

The scientific thresholds of TCE and PCE exposures that
trigger concern for hazard to health are discussed in Part IV.C,
below, in the context of the RCRA claim.
13

In support of this statement, Plaintiffs cite the declaration
of David A. Sutton, Lockheed Martin’s manager of environment,
safety and health, in which he says “Lockheed Martin, under the
supervision of the NJDEP, has, among other things, been
monitoring and sampling groundwater at designated monitoring
wells at and near the Facility and affected off-site areas.”
(Pl. Ex. 1 ¶ 12.) Plaintiffs also cites a prior memorandum of
law by Defendant, in which Defendant states: “Based on the
levels of TCE in the groundwater, the NJDEP has determined that
17

a groundwater treatment system and vapor extraction system at
the facility, as well as a “Perimeter System” to remediate
groundwater, which has been in operation since 1995. (Def. SMF ¶
16.) Plaintiffs contend that Defendant has shut off the
Perimeter System, potentially permitting contaminants to migrate
once again through the groundwater to the Wexford development.
(Decl. of David Farrington ¶ 8 (Pl. Ex. 49) [Docket Item 1497].)
E.

Farrington’s expert report

David Farrington, a professional geologist, drafted an
expert report for Plaintiffs on the subject of “environmental
studies and remediation activities conducted at the Lockheed
Martin property and nearby residential properties in Moorestown,
New Jersey.” (Pl. Ex. 18.) He opines that PCE and TCE were
“discharged into the soil and groundwater” at Defendant’s
facility and “are classified as hazardous substances” under
CERCLA and RCRA. (Id. at 7.) He concludes that the VOCs
“migrated offsite” from the facility and contaminated
groundwater “beneath the Wexford neighborhood, including 5
Victoria Court and 7 Victoria Court.” (Id. at 8.) He also opines
that the contamination migrated “through the vadose zone
(unsaturated soils).” (Id.) He states that PCE continues to

monitored natural attenuation is the most appropriate means of
continuing remediation.” (Pl. Ex. 19 at 2.)
18

degrade into TCE and other compounds and “continues to migrate
in soil vapor through the unsaturated soils in the vadose zone .
. . .” (Id.) According to Farrington, the source of PCE detected
in the indoor air at Plaintiffs’ properties “was from sub-slab
soil vapor migrating into the house” and that “the sub-slab soil
vapor was not contaminated from indoor air migrating into the
ground.” (Id.) He explains that the “presence of chlorinated
VOCs in groundwater and soil vapor on the LMC property acts as
an ongoing source of chlorinated VOCs in soil vapor,” which will
“continue to migrate through the vadose zone,” following the
same migration path, below 5 and 7 Victoria Court. (Id. at 9.)
On the hazardous nature of TCE and PCE, Farrington states:
• . . . Human exposure to PCE affects developmental,
neurological,
and
respiratory
systems.
PCE
is
reasonably anticipated to be a human carcinogen.
(Agency for Toxic Substances and Disease Registry -attached)
• . . . Human exposure to TCE affects developmental
and
neurological
systems.
TCE
is
reasonably
anticipated to be a human carcinogen. (Agency for
Toxic Substances and Disease Registry -- attached)
• The United States Environmental Protection Agency
(EPA) characterizes TCE as carcinogenic to humans and
as a human non-cancer health hazard. [citation
omitted]
. . . • . . . These compounds are
hazardous
substances
under
the
Environmental Response, Compensation and
(CERCLA), and hazardous wastes under
Conservation and Recovery Act (RCRA).

classified as
Comprehensive
Liability Act
the Resource

. . . • Based on information from the Agency for Toxic
Substances and Disease Registry, exposure to PCE
19

and/or TCE can affect developmental,
and/or respiratory systems in humans.

neurological,

(Id. at 7, 9.) The ATSDR attachments referenced in the report
are not included as part of Plaintiffs’ exhibit, but are
included in other exhibits in these cross-motions.
III. STANDARD OF REVIEW
A court shall grant summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute is “genuine” if, based on the evidence in
the record, a reasonable factfinder could return a verdict for
the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A fact is “material” if it might affect the
outcome of the suit. Id. The court will view evidence in the
light most favorable to the non-moving party and “all
justifiable inferences are to be drawn in [that party’s] favor.”
Hunt v. Cromartie, 526 U.S. 541, 552 (1999). Fed. R. Civ. P. 56
“mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Marten v. Godwin, 499 F.3d
290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986)).

20

Fed. R. Civ. P. 56(c) further provides that parties
asserting that a fact is genuinely disputed, or cannot be, “must
support the assertion” by citing to the record or by “showing
that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Affidavits or
declarations in support of or opposition to a motion for summary
judgment “must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” Fed.
R. Civ. P. 56(c)(4). If a party “fails to properly support an
assertion of fact or fails to properly address another party’s
assertion of fact,” the Court may grant summary judgment, if the
motion and supporting papers show the movant is entitled to it.
Fed. R. Civ. P. 56(e).
IV.

DISCUSSION
A. The Spill Act and WPCA claims
Plaintiffs bring claims under the Spill Act and the WPCA,

via the New Jersey ERA. (See Second Am. Compl. ¶¶ 43-57.) The
ERA contains a notice requirement, which provides:
No action may be commenced pursuant to this act unless
the person seeking to commence such suit shall, at
least 30 days prior to the commencement thereof,
direct a written notice of such intention by certified
mail, to the Attorney General, the Department of
Environmental Protection, the governing body of the
municipality in which the alleged conduct has, or is
21

likely to occur, and to the intended defendant;
provided, however, that if the plaintiff in an action
brought in accordance with the “N.J. Court Rules,
1969,” can show that immediate and irreparable damage
will probably result, the court may waive the
foregoing requirement of notice.
N.J.S.A. 2A:35A-11.
While Plaintiffs provided written notice to Defendant and
the DEP (see Pl. Ex. 42 [Docket Item 145-44]), Plaintiffs
conceded at oral argument that they did not provide written
notice to the Attorney General or the Township of Moorestown.
Plaintiffs have not argued that the Court should waive the
notice requirement or that immediate and irreparable damage will
probably result if the notice requirement is not waived.
The text of the notice provision is unambiguous: no action
under the ERA may be commenced unless certain authorities have
been given the specified notification. N.J.S.A. 2A:35A-11. In
Player v. Motiva Enters., LLC, 240 F. App’x 513, 523-24 (3d Cir.
2007), the Third Circuit predicted that the New Jersey Supreme
Court would hold that the ERA’s notice provision is “a mandatory
precondition to a lawsuit . . . .” The New Jersey Appellate
Division has subsequently cited Player with approval. See Dalton
v. Shanna Lynn Corp., No. A-0048-10T1, 2012 WL 1345073, at *4
(N.J. Super. Ct. App. Div. Apr. 19, 2012) (observing that the
notice requirement has been held to be “a mandatory condition
precedent to commencing a private cause of action”); Panaccione

22

v. Holowiak, 2008 WL 4876577, at *5 (N.J. Super. Ct. App. Div.
Nov. 12, 2008) (“Summary judgment is appropriate when a
plaintiff fails to comply with this mandatory condition
precedent.”); see also Scott v. E.I. Dupont de Nemours & Co.,
No. 06-3080, 2009 WL 901135, at *1-*4 (D.N.J. Apr. 1, 2009)
(analyzing the notice provision at length, concluding that its
requirements are mandatory, and observing that the U.S. Supreme
Court held that “requirements in an analogous notice provision
in the Resource Conservation and Recovery Act are ‘mandatory
conditions precedent to commencing suit’”) (citing Hallstrom v.
Tillamook Cnty., 493 U.S. 20, 31 (1989)). The parties have not
cited, and the Court’s own research has not revealed, any New
Jersey Supreme Court precedent addressing this issue.
At oral argument, Plaintiffs declined the opportunity to
argue that the New Jersey Supreme Court would reach a conclusion
contrary to Player or its progeny. In light of the text of the
notice requirement itself and the foregoing precedent, the Court
holds that the ERA notice requirement is a mandatory
precondition to bringing suit under that act. Defendant is
entitled to summary judgment on Counts I and II (Spill Act and
WPCA claims), because Plaintiffs failed to comply with the
notice requirements of the ERA.14

14

Because Plaintiffs’ failure to provide proper notice is
dispositive, the Court need not address Defendant’s alternative
23

B.

CERCLA

Defendant seeks summary judgment on the CERCLA claim
because Plaintiffs, as private parties, are not entitled to
injunctive relief under CERCLA, and because Plaintiffs are not
entitled to, and did not incur, any “response costs” under 42
U.S.C. § 9607(a) prior to bringing suit. (Def. Mot. at 37-38.)
Plaintiffs offer no support of this claim in their opposition
brief. At oral argument, Plaintiffs confirmed that this portion
of Defendant’s motion is unopposed.
Defendant is correct that “CERCLA does not authorize
private parties to seek injunctive relief” for environmental
cleanup. (Def. Mot. at 37.) See Mayor & Council of Borough of
Rockaway v. Klockner & Klockner, 811 F. Supp. 1039, 1046-47
(D.N.J. 1993) (“The conclusion that injunctive relief is not
available under Section 107 is supported by the overwhelming
weight of authority”); T&E Indus., Inc. v. Safety Light Corp.,
680 F. Supp. 696, 704 (D.N.J. 1988) (“CERCLA does not provide a
private party with the right to injunctive relief requiring
cleanup of a hazardous waste site”); Cadillac Fairview/Calif.,

arguments that the ERA claims are preempted or that Plaintiffs
fail to establish Spill Act and WPCA claims on the merits. To
the extent Plaintiffs have moved for summary judgment on Count I
and Count II, that motion is denied. The dismissal of Counts I
and II is without prejudice to Plaintiffs’ right to furnish
proper notice under the ERA and pursue future claims in a court
of competent jurisdiction, and this Court has not addressed the
merits of any Spill Act or WPCA claims in this case.
24

Inc. v. Dow Chem. Co., 840 F.2d 691, 697 (9th Cir. 1988)
(“CERCLA § 107(a) does not provide for a private right to
injunctive relief against owners and operators”); New York v.
Shore Realty Corp., 759 F.2d 1032, 1049 (2d Cir. 1985) (holding
that “injunctive relief under CERCLA is not available to the
State”). To the extent Plaintiffs seek injunctive relief under
CERCLA, Defendant is entitled to summary judgment.
CERCLA does provide a private right of action to recover
necessary costs incurred by parties in response to the release
or threatened release of hazardous substances. See 42 U.S.C. §
9607(a)(4)(B) (providing that certain specified parties shall be
liable for “any other necessary costs of response incurred by
any other person consistent with the national contingency
plan”). The statute specifies that “an action may be commenced
under section 9607 of this title for recovery of costs at any
time after such costs have been incurred.” 42 U.S.C. §
9613(g)(2). Defendant asserts that the only “putative response
cost[] is a May 2013 invoice to Plaintiffs’ counsel regarding
testing conducted at Plaintiffs’ properties no earlier than
November 2012.” (Def. Mot. at 38.) Defendant observes that these
costs were incurred after Plaintiffs added the CERCLA claim to
the Second Amended Complaint, in violation of 42 U.S.C. §
9613(g)(2). (Id. at 38-39.) Defendant also argues that the costs
were not incurred by Plaintiffs, but their counsel, which is not
25

a “response cost” under the statute. (Id. at 39.) According to
Defendant, the Eighth Circuit has held that costs advanced by
attorneys on a contingency basis (costs the plaintiffs would
have to pay only if they succeeded on their claim) are not
recoverable under CERCLA because the plaintiffs themselves had
not “incurred” those expenses. (Id. at 39-40) (quoting Trimble
v. Asarco, 232 F.3d 946, 956-58 (8th Cir. 2004), abrogated on
other grounds, ExxonMobil Corp. v. Allapattah Servs., Inc., 545
U.S. 546 (2005)). Defendant also argues that the alleged costs
are litigation costs, not response costs, and that if response
costs are not recoverable, Plaintiffs are not entitled to
declaratory relief under CERCLA. (Def. Mot. at 43-45.)
Plaintiffs offer no arguments in support of their CERCLA
claim. They do not present evidence that, prior to commencing
suit, they incurred response costs within the meaning of CERCLA
or that these costs were necessary and were not inconsistent
with the national contingency plan published under Section
311(c) of the Federal Water Pollution Control Act or revised
pursuant to 42 U.S.C. 9605. See 42 U.S.C. §§ 9601(31),
9607(a)(4)(B), & 9613(g)(2)(B); see also U.S. Virgin Islands
Dep’t of Planning & Natural Res. v. St. Croix Renaissance Grp.,
LLLP, 527 F. App’x 212, 214 (3d Cir. 2013) (affirming the
district court’s holding that water sampling and laboratory fees
incurred after the lawsuit was initiated were not compensable
26

response costs under CERCLA). Accordingly, the Court will grant
this unopposed portion of Defendant’s motion for summary
judgment related to the CERCLA claim (Count IV).
C.

RCRA claim

RCRA provides that
any person may commence a civil action on his own
behalf . . . against any person . . . 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 . . . .
42 U.S.C. § 6972(a)(1)(B). To prevail under this section, a
plaintiff must prove
(1) that the defendant is a person, including, but not
limited to, one who was or is a generator or
transporter of solid or hazardous waste or one who was
or is an owner or operator of a solid or hazardous
waste treatment, storage, or disposal facility; (2)
that
the
defendant
has
contributed
to
or
is
contributing to the handling, storage, treatment,
transportation, or disposal of solid or hazardous
waste; and (3) that the solid or hazardous waste may
present an imminent and substantial endangerment to
health or the environment.
Interfaith, 399 F.3d at 258 (quoting Parker v. Scrap Metal
Processors, Inc., 386 F.3d 993, 1014-15 (11th Cir. 2004)).
RCRA does not require a showing of actual harm, but only
“threatened or potential harm . . . .” Interfaith, 399 F.3d at
258. The endangerment must be “imminent,” meaning that it
“threaten[s] to occur immediately,” although “‘the impact of the
threat may not be felt until later.’” Meghrig v. KFC W., Inc.,
27

516 U.S. 479, 485 (1996) (quoting Price v. U.S. Navy, 39 F.3d
1011, 1019 (9th Cir. 1994)). Endangerment is “substantial” if it
is “serious.” Interfaith, 399 F.3d at 258-59. In sum, “‘the
plaintiffs must [only] show that there is a potential for an
imminent threat of serious harm . . . [as] an endangerment is
substantial if it is ‘serious’ . . . to the environment or
health.’” Id. at 258 (quoting Parker, 386 F.3d at 1014-15); see
also Crandall v. City & Cnty. of Denver, 594 F.3d 1231, 1238
(10th Cir. 2010) (“there is no endangerment unless the present
or imminent situation can be shown to present a risk of (later)
harm”).
Here, Plaintiffs raise at least a dispute of fact as to the
first two elements of the RCRA claim: that Defendant is a
“person” within the meaning of RCRA and that Defendant has
contributed to the handling, storage, treatment, transportation,
or disposal of hazardous waste. A reasonable fact finder could
indeed conclude that TCE and PCE have migrated in the
groundwater and soils from Defendant’s factory onto Plaintiffs’
properties in detectable amounts, and that Defendant is liable
for this condition as the successor to RCA, GE and Martin
Marietta at this site. However, Plaintiffs have failed to carry
their burden on the “imminent and substantial endangerment”
element. For reasons now discussed, Plaintiffs fail to adduce
evidence from which a favorable inference could be drawn that
28

the contamination measured on and around their properties may
present an imminent and substantial endangerment to health or
the environment.
Plaintiff’s evidence of “imminent and substantial
endangerment” consists of (1) a federal regulation deeming TCE
and PCE to be “hazardous waste”15; (2) the recorded presence of
TCE and PCE on Plaintiffs’ properties16; (3) printouts from the
EPA website that summarize TCE and PCE and describe background
exposure levels, reference concentrations, and “health hazard
information” describing acute and chronic effects17; (4) David
Farrington’s opinions about the possible health effects of TCE
and PCE18; and (5) a “Toxicological Profile for
Tetrachloroethylene” prepared by the U.S. Department of Health
and Human Services, Public Health Service, Agency for Toxic
Substances and Disease Registry, which spans more than 300
pages.19

15

40 C.F.R. § 261.31.

16

(See, e.g., Pl. Ex. 51 (collecting test results).)

17

(Pl. Exs. 35 & 36.)

18

(Pl. Ex. 18.)

19

(Pl. Ex. 37.) Plaintiffs’ only citation to this voluminous
exhibit is for the proposition that fetuses and children may be
particularly susceptible to the toxic effects of PCE exposure.
(Pl. Mot. at 13; Pl. Opp’n at 12.) Plaintiffs do not cite any
specific pages or data within this exhibit to support their
claim of an imminent and substantial endangerment. This ATSDR
29

This evidence, taken together and with all reasonable
inferences drawn in favor of Plaintiffs, is insufficient to
establish “imminent and substantial endangerment.” Plaintiffs
provide no evidence and no expert testimony that TCE or PCE may
pose a substantial risk of harm to health or the environment at
levels detected on and around Plaintiffs’ properties.
Significantly, Plaintiffs’ only expert does not offer such an
opinion. Farrington’s report and testimony briefly summarize
information from the EPA and the ATSDR for the general
propositions that TCE and PCE are “reasonably anticipated” to be
carcinogens and “can affect developmental, neurological, and/or
respiratory systems in humans.” (Pl. Ex. 18 at 7, 9.) He does
not offer an opinion about the potential risks to health or the
environment resulting from exposure to TCE and PCE at the levels
detected on and around Plaintiffs’ properties. In fact, he
references no concentrations of any kind in his discussion of
the toxicity of TCE and PCE. He never discusses what levels of
TCE and PCE are potentially harmful to humans or the
environment.

publication from 1997 created a profile of available toxicologic
information and epidemiologic evaluations of PCE, assessed the
sufficiency of available information in determining levels of
exposure presenting a significant risk to human health, and
identified toxicologic testing needed to identify exposure to
PCE that may present significant risk of adverse health effects
in humans. (Pl. Ex. 37 at v.)
30

Proof of the mere detection of some measurable amount of
hazardous materials on a property is not enough to maintain a
RCRA claim. See Two Rivers Terminal, L.P. v. Chevron USA, Inc.,
96 F. Supp. 2d 432 (M.D. Pa. 2000) (rejecting the contention
“that the mere presence of contaminants creates” an imminent and
substantial endangerment); City of Fresno v. United States, 709
F. Supp. 2d 934, 943 (E.D. Cal. 2010) (“the plaintiff must do
more than establish the presence of solid or hazardous wastes at
a site”); see also Lewis v. FMC Corp., 786 F. Supp. 2d 690, 710
(W.D.N.Y. 2011) (“Without any evidence linking the cited
standards to potential imminent and substantial risks to human
health or wildlife, reliance on the standards alone presents
merely a speculative prospect of future harm, the seriousness of
which is equally hypothetical.”); accord FEDERAL JUDICIAL CENTER,
REFERENCE MANUAL

ON

SCIENTIFIC EVIDENCE 638 (3d ed. 2011) (“in most

specific causation issues involving exposure to a chemical known
to be able to cause the observed effect, the primary issue will
be whether there has been exposure to a sufficient dose to be a
likely cause of the effect”) (emphasis added).
At oral argument, Plaintiffs adopted the position that
exposure to TCE and PCE at any levels poses a substantial
endangerment to health or the environment. No evidence in the
record supports such a position, and Plaintiffs’ own evidence
flatly contradicts this argument. For example, the EPA primer on
31

TCE discusses how “most municipal water supplies are in
compliance with the maximum contaminant level of 5 µg/L” (Pl.
Ex. 35 at 1), strongly suggesting that lower concentrations of
TCE in the water supply are tolerated and do not pose a serious
health risk, even when the water is consumed as drinking water.
Moreover, the California EPA has determined that “adverse health
effects are not likely to occur” at or below the chronic
inhalation reference exposure level for TCE of 600 µg/m3. (Id. at
2.)20 The Reference Concentrations, Reference Doses, and NJDEP
screening levels all suggest that trace amounts of TCE and PCE
do not pose a substantial risk of harm to humans or the
environment. Plaintiffs cite no evidence to the contrary.
The record evidence, viewed in the light most favorable to
Plaintiffs, does not permit an inference that the concentrations
of TCE or PCE detected at Plaintiffs’ properties are potentially
harmful. None of the samples of soil, indoor air or groundwater
contained concentrations of contaminants that exceed the current
NJDEP screening levels, which themselves are generally used as
benchmarks for further investigation, not to demarcate the level
20

Similarly, the EPA sets the inhalation minimal risk (“MRL”)
for TCE as of 2012 at 500 µg/m3. (Id. at 2.) According to the
EPA, “The MRL is an estimate of the daily exposure to a
hazardous substance that is likely to be without appreciable
risk of adverse noncancer health effects over a specified
duration of exposure.” (Id.) Plaintiffs, on the other hand, had
no detectable amounts of TCE exposure by inhalation as measured
in the 2008-2012 testing in their homes.
32

at which a serious risk of harm is possible. Only six of
approximately 54 samples from Plaintiffs’ properties ever
detected TCE or PCE in concentrations above the old screening
levels, and only one sample contained PCE at a concentration as
high as twice the old screening level.21 Plaintiffs have not
cited any other test results. Without other evidence, no
factfinder could reasonably infer that when levels of TCE and
PCE on Plaintiffs’ properties are below current NJDEP screening
levels, they may nonetheless present an imminent and substantial
endangerment.22

21

PCE was detected in the soil at 5 Victoria Court in December
2008 at 71.9 µg/m3, which is approximately 2.1 times greater than
the old 34 µg/m3 screening level. (Pl. Ex. 51.)
22

Plaintiffs point to a letter written by David Sutton to the
NJDEP in March 2009, in which he references TCE levels in
groundwater plumes across Borton Landing Road that have been
measured as high as 58 µg/m3 in “recent investigation,” which is
29 times the current NJDEP screening level of 2 µg/m3. (Pl. Ex.
27 at 2; Pl. Ex. 51.) There is no evidence or expert opinion
testimony about what concentrations of TCE ultimately are likely
to reach Plaintiffs’ properties or the potential hazard posed by
TCE at those concentrations. Although Sutton’s letter references
historical levels of TCE in groundwater plumes in monitoring
wells along Borton Landing Road as high as 188 µg/m3 (Pl. Ex. 27
at 2), no measurement to date has ever detected TCE in the
groundwater at Plaintiffs’ properties at levels higher than 1.3
µg/m3. Therefore, Plaintiffs ask the factfinder to make a
substantial conjecture that the relatively high levels of TCE in
the plumes would result in high levels of TCE on Plaintiffs’
properties, and that TCE may pose an imminent and substantial
endangerment at those levels. Neither Farrington’s report nor
his declaration contains any opinions about how high TCE or PCE
levels could or probably would rise on Plaintiffs’ properties,
or the toxicity of the contaminants at those levels, even if, as
Plaintiffs argue, some of Defendant’s remediation efforts have
33

Plaintiffs’ evidence from the EPA further precludes any
inference in Plaintiffs’ favor. For instance, the primer states
that the inhalation minimal risk level for TCE is 500 µg/m3. (Pl.
Ex. 35 at 2.) TCE has never been detected in the indoor air at
either of Plaintiffs’ properties. (Pl. Ex. 51.) The EPA primer
also seems to suggest that the “maximum contaminant level” in
municipal water supplies is 5 µg/L, which is the equivalent of
5000 µg/m3. (Pl. Ex. 31 at 1.) TCE has never been measured above
1.3 µg/m3 in the groundwater at either of the Plaintiffs’
properties.
Turning to PCE, although the EPA expressed considerable
uncertainty about its benchmarks for PCE, the numbers suggest
that “continuous inhalation” of PCE at or below 40 µg/m3 is
“likely to be without appreciable risk of deleterious noncancer
effects during a lifetime.” (Pl. Ex. 36 at 2.) Daily oral
exposure to PCE at 6 µg/kg/d is “likely to be without
ceased. Against such conjecture about future levels of TCE, the
record reflects that in the years of monitoring to date, the
plume has brought only traces of TCE to groundwater below
Plaintiffs’ properties and no TCE vapor to their homes. Any
inference of imminent and substantial endangerment to Plaintiffs
would be purely speculative on this record -- particularly in
light of the maximum contaminant level for municipal water
sources of 5 µg/L, or 5000 µg/m3, that is referenced in the EPA
primer on TCE (Pl. Ex. 35 at 1), and the fact that Plaintiffs’
homes are connected to the municipal water system, reducing the
potential to ingest the contaminated groundwater. The record
likewise contains no evidence that the groundwater on
Plaintiffs’ properties becomes surface water at any point, such
as by a spring, pond, or wetland, so there is no threat of TCE
ingestion from groundwater on Plaintiffs’ properties.
34

appreciable risk of deleterious noncancer effects during a
lifetime.” (Id.)23
Plaintiffs have never provided any test results showing a
concentration of PCE in the indoor air at concentrations above
5.3 µg/m3, and no results show PCE above even 1 µg/m3 in the
indoor air since April 2009. (Pl. Ex. 51.) As for the potential
for increased risk of cancer, the EPA estimates that
continuously breathing air containing 4 µg/m3 of PCE over an
“entire lifetime” would increase the chance of developing cancer
not more than one in a million. (Pl. Ex. 36 at 3.)
These scientific risk levels and screening standards for
TCE and PCE are summarized below in Table 1 (TCE) and Table 2
(PCE) for indoor vapor exposure testing in Plaintiffs’ homes.

TABLE 1: Summary of TCE Inhalation Vapor
Risk Level Thresholds
EPA inhalation Minimal Risk Level (MRL)
23

500 µg/m3

If this PCE inhalation exposure threshold of 6 µg/kg/d is
applied to a young child weighing 20 kg (44 lb.), it would say
that exposure of that child to 120 µg/d is likely to be without
appreciable risk of noncancer effects.
35

California EPA inhalation Reference Level

600 µg/m3

NJDEP Vapor Screening Standard
(2008-2012)

1 µg/m3

NJDEP Vapor Screening Standard (2013)

2 µg/m3

Plaintiffs’ TCE inhalation vapor tests
(2008-2012) (8 tests)

0 µg/m3
[not detected]

TABLE 2: Summary of PCE Inhalation Vapor
Risk Level Thresholds
EPA continuous inhalation threshold

40 µg/m3

EPA reference dose [6 µg/k/d]
for 20 kg child

120 µg/d

NJDEP Vapor Screening Standard
(2008-2012)

3 µg/m3

NJDEP Vapor Screening Standard (2013)

9 µg/m3

Plaintiffs’ PCE inhalation vapor tests
(2008-2009) (5 tests)

5.3, 1.6, 1.2, 0.95,
ND [not detected]
µg/m3

Plaintiffs’ PCE inhalation vapor tests
(2012) (4 tests)

0.46, 0.43, 0.41,
0.37 µg/m3

It is apparent that these scientific benchmarks provide no
reasonable basis for the inference that the low levels of TCE
36

and PCE measured on occasion at and around Plaintiffs’
properties may pose an imminent and substantial endangerment to
health or the environment. Further, the general reduction in
such concentrations in the more recent years gives no support to
an inference that an increase in risks posed by TCE or PCE to
Plaintiffs’ families or homes or the environment may be
“imminent.”
The Court may be excused if it is misreading the data or
benchmarks contained in Plaintiffs’ evidence. Plaintiffs have
not provided testimony from a toxicologist or any other expert
to aid the Court’s comprehension of the data or the complicated
science at the heart of this case. Plaintiffs seem to take the
position that the numbers speak for themselves. In light of the
NJDEP screening levels and the threshold concentration levels
referenced in the EPA primers, the undisputed evidence plainly
suggests that the very low levels of TCE and PCE detected at
Plaintiffs’ properties do not pose a substantial threat to
health or the environment. As discussed above, the detected
levels of TCE and PCE are several orders of magnitude below the
EPA’s scientific benchmarks for the threshold of concern for
harm to humans. In order for Plaintiffs to survive summary
judgment, they need to provide some evidence to enable a
factfinder to reasonably infer that TCE and PCE may pose an
imminent and substantial threat to health or the environment at
37

the levels existing in this case. Plaintiffs have failed to do
so.
In the cases cited in the briefing, the claims that
survived summary judgment were supported by expert testimony
linking the contamination to potential harm, or evidence of
actual harm. For example, both parties rely heavily on
Interfaith, 399 F.3d at 248, in which the defendant appealed the
entry of an injunction against it for violating RCRA. In that
case, the district court found that contamination “far exceeded
all applicable NJDEP contamination standards for soil,
groundwater, surface water, and river sediments,” reaching
between 30 and 2,000 times the acceptable levels. Interfaith,
399 F.3d at 261. The NJDEP itself concluded in that case that
the site “posed a risk of human exposure” to chromium waste and
that there was a “substantial risk of imminent damage to public
health and safety and imminent and severe damage to the
environment.” Id. at 262-63. The plaintiffs presented “testimony
of ten exceptionally qualified experts in the fields of health
and environmental risk, ecological and aquatic toxicology,
hydrogeology, environmental engineering and geochemistry,
environmental remediation, dermatology, and ‘heaving.’” Id. at
263-64. The experts testified that the contamination existed at
“unusually high levels” and that the effects were

38

“unpredictable” and that the defendant’s remedy was not viable
to prevent harm. Id. at 264.
Similarly, in Parker, 386 F.3d at 1014-15, the plaintiffs
survived a motion for summary judgment on a RCRA claim because
they showed evidence of actual harm to the environment. There,
the plaintiffs produced evidence that (1) contaminants were
detected at levels that required notification to the state
department of environmental protection, (2) defendants disposed
of 1,000 drums of hazardous waste, (3) trees had been killed by
spilled waste, and (4) materials found at the site “were
explosive, and . . . could affect the central nervous system and
cause problems in the upper respiratory system.” Id. at 1015.
Here, unlike in Interfaith or Parker, Plaintiffs do not
have any evidence of actual harm or the testimony of qualified
experts to opine that the levels of contamination are
potentially harmful to health or the environment at these low
concentrations.
Several federal courts have granted summary judgment for
the defendants even when contamination was detected at levels
above state screening levels, because the plaintiffs did not
produce sufficient evidence of the possibility of imminent and
substantial endangerment. See H&H Holding, L.P. v. Chi Choul
Lee, No. 12-5433, 2014 WL 958878 (E.D. Pa. Mar. 6, 2014)
(granting summary judgment for the defendant because, even
39

though 17 of 36 samples exceeded state levels by up to 15 times
the standard, the plaintiff did not establish imminent and
substantial endangerment); Lewis, 786 F. Supp. 2d at 710
(holding that the plaintiff failed to show an imminent and
substantial endangerment, even though the plaintiff presented
evidence that contaminants were present in concentrations that
exceeded upper limit background levels); City of Fresno v.
United States, 709 F. Supp. 2d 934, 940 (E.D. Cal. 2010)
(holding that plaintiff did not establish imminent and
substantial endangerment, even though contaminant levels
exceeded California’s non-binding public health goals); see also
Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 212-14 (2d
Cir. 2009) (finding insufficient evidence to support a
reasonable inference of an imminent and substantial
endangerment, despite samples exceeding state health standards);
accord Interfaith, 399 F.3d at 261 (“Proof of contamination in
excess of state standards may support a finding of liability,
and may alone suffice for liability in some cases, but its
required use is without justification in the statute.”). Whether
or not contamination here is below screening levels, or slightly
exceeds the screening levels, Plaintiffs have not presented any
testimony or evidence from which a reasonable jury could
conclude that the contamination at Plaintiffs’ properties has

40

the potential to cause substantial and imminent harm to health
or the environment.
With respect to Plaintiffs’ motion for summary judgment on
their RCRA claim, the evidence does not permit entry of summary
judgment in favor of Plaintiffs, because Defendant has adduced
evidence that would permit a reasonable factfinder to conclude
that TCE and PCE pose neither an imminent nor substantial
endangerment to health or the environment at the levels measured
on and around Plaintiffs’ properties. Accordingly, Plaintiffs’
motion for partial summary judgment is denied. Viewed in the
light most favorable to the Plaintiffs, the evidence is
insufficient to establish the “imminent and substantial
endangerment” element of the RCRA claim for which Plaintiffs
have the burden. On this record, Defendant is entitled to
summary judgment on the RCRA claim.
In so holding, the Court does not find as a matter of law
that TCE and PCE at levels below the NJDEP screening levels
could never pose a threat to health or the environment.
Similarly, the Court does not hold that concentrations of TCE
and PCE below the EPA or other risk level thresholds could never
be potentially harmful to health or the environment. Plaintiffs
simply have not carried their burden to adduce evidence to
permit a reasonable inference that this is so, and the Court is
aware of no basis for assuming that the mere presence of these
41

low levels of TCE and PCE may pose a risk of substantial and
imminent harm, given that the present EPA risk thresholds are
set at much higher concentrations before concern for potential
health effects is justified. Plaintiffs have not cited any
evidence that could be presented at trial to establish this
necessary element, despite having had every opportunity to do so
in this three-year-old case. Accordingly, Defendant is entitled
to summary judgment in its favor on the RCRA claim. See Fed. R.
Civ. P. 56(c)(1)(A); Fed. R. Civ. P. 56(e)(3).

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V.

CONCLUSION
For the reasons explained above, Plaintiffs’ motion for

partial summary judgment is denied. Defendant’s motion for
summary judgment is granted. An accompanying Order will be
entered.

August 12, 2014
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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