Source: Philadelphia Inquirer, March 3, 2013
Posted on: http://envfpn.advisen.com
On a recent afternoon last month, a man and his dog jogged down a peaceful, winding lane in Moorestown past a row of tidy $725,000 homes that exhibited tiered fountains and stone goddesses.
Not on display in the Wexford development were about 58 monitoring wells that lie about 25 feet beneath the ground in the area, installed after hazardous, carcinogenic solvents were spilled at the nearby defense plant.
“We’re watching it,” said Larry Hajna, spokesman for the New Jersey Department of Environmental Protection, referring to tainted groundwater the agency says was caused by Lockheed Martin’s predecessor, RCA Corp., nearly three decades ago.
While some tests show improvement, the monitoring area off Borton Landing Road has widened. Hazardous vapors were detected between 2008 and 2011 in air pockets of the soil near and beneath the basements of a nearby day-care center and 17 homes in the 60-house Wexford community.
Continued testing inside the buildings, however, has yielded conflicting results. Dangerous vapors were not detected in the day care but were found in a few homes, according to reports filed by Lockheed Martin’s state-licensed environmental consultant.
Two Wexford couples have filed a lawsuit in federal court against Lockheed Martin, alleging that the vapors have slowed the growth rates of their children.
The case, filed in 2011 by former next-door neighbors Michael and Ashley Leese, who have three children, and Jay and Raquel Winkler, who have two children, is approaching trial in U.S. District Court in Camden. The Leeses moved out last year but have not yet put their house up for sale.
The lawsuit says Lockheed Martin inherited responsibility for the spill and the newly discovered vapor intrusion in the homes. Vapor intrusion occurs when pollutants in the groundwater evaporate, rise through the soil, and seep into a building. The couples seek unspecified damages for medical bills, emotional distress, and a loss in property values.
As babies, their children refused to eat, a sign of chemical exposure, the lawsuit says, and their heights and weights dropped into the 10th percentile on growth charts. They now are from 5 to 10 years old. One suffers from developmental issues, the complaint says.
A range of results
Like other cases that focus on environmental conditions, the issue is whether the families can link the ailments to the contamination. Lockheed Martin lawyers say that the spill has been contained and that there is no health risk.
Another challenge at trial will be to sort through myriad environmental tests — some alarming, others reassuring — and determine their meaning. Changing laws and standards could further complicate the case.
When the Leeses and Winklers purchased their new $445,000 homes on Victoria Court about a decade ago, the builder disclosed the tainted groundwater, noting it contained trichloroethylene (TCE), a degreaser that a federal agency says is carcinogenic.
Soon after the sale, the state DEP was expected to issue a “No Further Action” letter, signaling the cleanup was completed, according to the now-bankrupt Orleans Corp. “The risk of contact with the contaminants, if any, is remote,” the agreement of sale said.
No letter was issued.
Testing until 2030
The couples were surprised when the DEP later ordered vapor testing, said Julie A. LaVan, their Moorestown lawyer. “They received notice,” she said, “that further testing was necessary.”
The DEP’s Hajna said that the laws had changed and that some tainted areas now required long-term monitoring while the contaminants naturally break down in the soil.
Lockheed Martin’s contamination area, which stretches 32 acres beneath the plant and Wexford, is scheduled for testing until 2030.
In 2007, the DEP began ordering vapor testing at all nursery schools near toxic sites. The action was triggered by the discovery that children had been inhaling dangerous vapors at the Kiddie Kollege day-care center in Gloucester County.
Since then, the Chesterbrook Academy, a preschool near Lockheed Martin, has had vapor testing, as have 50 Wexford homes. Additional testing is planned this year.
Elevated levels of TCE were detected, beginning in 2008, in the soil beneath the basements of some of these buildings. But most tests of the inside air came back negative, and filtration systems were installed in some places, satisfying the DEP.
At the Leese and Winkler homes, high levels of TCE were found in the soil, but not inside, according to tests performed by Lockheed Martin’s environmental consultants.
LaVan said the findings were enough to cause concern. “If it was found below the foundation,” the families’ attorney said, “there is exposure.”
The couples have declined comment.
Meanwhile, tetrachloroethylene (PCE), a potentially carcinogenic vapor, was detected at an unsafe level inside the Leeses’ home.
Both TCE and PCE are degreasers that were identified in the tainted groundwater beneath the plant in the 1990s and in private residential wells nearby that were sealed due to the toxics, say DEP reports.
Marion Craig, an environmental consultant of Lockheed Martin, said that the company was actively cleaning up the site with filtration systems and that there has been “an overall lessening” of the contamination.
Other reports filed with the DEP say the pollutants have not penetrated the Raritan-Magothy aquifer, which provides the area with drinking water.
Robert Wiygul, Lockheed Martin’s Philadelphia attorney, argued in court documents that the TCE vapors detected in the soil were not significant enough to cause health problems. He did not respond to a call for comment, but company spokesman Keith Little said Lockheed Martin has worked with residents “in an open and neighborly fashion” to test for potential problems.
As for the PCE, Wiygul argued that it has not been found in the groundwater or soil at Wexford. He suggested it likely was coming from other sources, such as dry-cleaning goods or cleaning solvents in the Leese home. PCE also is found in adhesives, paints, lacquers, and varnishes.
“Plaintiffs cannot create an environmental case out of the discovery of a fleeting, slightly elevated level of PCE in their basement,” he wrote last year in his motion to dismiss the case.
In rejecting that motion, Judge Noel L. Hillman said depositions and expert reports should reveal “if or when these chemicals have been detected” in the neighborhood and at the plant, and at what levels. The reports also should shed light on whether there have been any other spills, he said.
Lockheed Martin will be able to request a dismissal again after all the reports are in, he said.
Until then, the judge said, there are “sufficient facts to allow all of these claims to go forward at this time.”