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Showing 38 posts in Cost Recovery.

Last month, the U.S. District Court for the Southern District of Iowa ruled that Dico, Inc. and its corporate affiliate Titan Tire Corporation (collectively, “Dico”) intended to arrange for the disposal of hazardous substances in violation of CERCLA when it knowingly sold multiple buildings contaminated with PCBs with the understanding that the purchaser intended to reuse only the buildings’ steel beams and dispose of the remaining materials. United States v. Dico, Inc., No. 4:10-cv-00503, 2017 U.S. Dist. LEXIS 151580 (S.D. Iowa Sep. 5, 2017).  The decision came after the Eight Circuit Court of Appeals reversed and remanded the lower court’s earlier ruling on summary judgment that Dico was liable as an arranger under CERCLA for the sale of the PCB-laden buildings.  In the appellate decision, which we blogged about here, the Court of Appeals held that the issue of whether Dico intended to dispose of the hazardous substances through the sale was the central question in determining whether CERCLA arranger liability applied and should not have been decided at the summary judgment stage.  That decision, as summarized in our blog, discusses the legal framework of CERCLA arranger liability and the “useful product defense,” which prevents a seller of a useful product from being subject to such liability, even when the product itself is a hazardous substance that requires future disposal.  Read More »

Last week, the Second Circuit issued an unpublished decision affirming an earlier decision of the Eastern District of New York that stands for the principle that a passive lessee that subleases a property to an unaffiliated tenant is neither an “Owner” nor an “Operator” under CERCLA. Next Millenium Realty, LLC v. Adchem Corp., No. 16-1260-cv, 2017 U.S. App. LEXIS 8476 (2d Cir. May 11, 2017).  Read More »

Last week, the United States Court of Appeals for the Tenth Circuit ruled that a PRP’s bankruptcy settlement of its CERCLA liability did not bar that PRP from later seeking contribution for a share of the settlement – despite the bankruptcy court’s determination that the settlement represented the PRP’s “fair share” of CERCLA liability.  Read More »

Last week, the U.S. District Court for the District of New Jersey denied Alcoa Domestic LLC’s request that the court dismiss claims against it regarding a previously owned site, finding that Alcoa may be in breach of the Purchase and Sales Agreement for the site and thus still liable for contamination caused by the removal of materials from the site. The case, Borough of Edgewater v. Waterside Construction, LLC et al., Civil Action No. 14-5060 (D.N.J. December 14, 2016), concerns the Borough of Edgewater’s endeavor to remediate contamination at Veteran’s Field in Edgewater, New Jersey in 2012.  A New Jersey contractor, Defendant Waterside Construction, LLC (and several other interrelated companies, collectively, “Waterside”), was awarded the contract for the remediation, which required Waterside to import clean stone to be used as fill in certain areas of the Veteran’s Field site.  Subsequent inspections revealed that the fill was contaminated, and Waterside admitted that the fill material originated from the former Alcoa Site, which is contaminated. Read More »

On Halloween, the New Jersey Appellate Division issued a potentially “scary” ruling and cautionary tale for owners of contaminated property who first remediate the conditions, and then later decide to pursue other potentially responsible parties (“PRPs”) to recover costs associated with the cleanup efforts under the New Jersey Spill Compensation and Control Act (the “Spill Act”).  In Pollitt Drive, LLC v. Engel et al., Dkt. No. A-4833-13T3 (App. Div., Oct. 31, 2016), the Appellate Division affirmed a trial court finding that the plaintiff, property owner Pollit Drive, LLC (“Pollit”), improperly discarded a corroded pipe, sump pit, and concrete floor that were located beneath a building at an industrial property that formerly housed various commercial printing businesses, thus warranting sanctions for spoliation of evidence.  Spoliation occurs when a party violates its duty to preserve evidence that could be relevant to a matter at issue in litigation.  The duty to preserve evidence generally arises when a party has actual knowledge of pending litigation, or when litigation is “probable.”  Spoliation can result in the court issuing various degrees of sanctions, ranging from an adverse inference, a prohibition from introducing anything related to the spoliated evidence, striking pleadings, payment of attorneys’ fees, or the most harsh sanction – a complete dismissal of the case.   Read More »

Earlier this month, for the first time a New Jersey trial court applied the often pled, but seldom effective, laches defense to bar a private-party claim for contribution under the New Jersey Spill Compensation and Control Act (the “Spill Act”).  Laches is an equitable principle that can be used to defend a claim that has become too “stale” by the plaintiff’s unreasonable delay in pursuing the claim, and where the defendant has suffered some harm from the delay.  Laches can bar a claim even if the plaintiff initiates the lawsuit within the applicable statute of limitations, or where no statute of limitations exists – such is the case for private party contribution claims under the Spill Act, which last year the New Jersey Supreme Court affirmed in Morristown Assoc. v. Grant Oil Co., 220 N.J. 360 (2015) are not subject to any statute of limitations.  In light of the Morristown decision, private claims for contribution under the Spill Act could therefore be brought decades after the discovery of contamination at a site.   Read More »

In the recent decision of United States of America v. Boston and Maine Corporation, C.A. No. 13-10087-IT (D. Mass. Sept. 22, 2016), a Massachusetts federal judge ruled that issuance of a ROD was the completion date of a removal action for statute of limitations purposes even though the actual remedial activities had been completed nearly 13 years earlier.  In reaching this conclusion, the Court also examined the often vexing distinction between removal and remedial activities and the question of what constitutes a “facility” under CERCLA. Given the posture of the case, the decision may also serve to underscore the deference courts often afford to the federal government when it, rather than a private party, is seeking to recover costs.    Read More »

In a case of first impression in the Third Circuit, the Honorable Eduardo C. Robreno has held that the Pennsylvania Department of Environmental Protection (“PADEP”) may not, under CERCLA, recover costs from current landowners if the costs were incurred prior to the owner's purchase of contaminated property.  In PADEP v. Trainer Custom Chemical LLC, No. 15-1232 (E.D. Pa. Aug. 30, 2016), PADEP sought to recover, among other things, over $800,000 in electricity bills which it had paid prior to October, 2012 to keep certain remediation equipment operating at the Stoney Creek Technologies Superfund Site (the “Site”), which Site was subsequently purchased by the defendant, Trainer Custom Chemical, LLC.  PADEP's claim for such costs was rejected by Judge Robreno, who held that “a new owner is not liable for recovery costs incurred before he took ownership of the facility.”  Id. at *21. Read More »

Earlier this month, in the case of New Jersey Dep’t of Environmental Protection (NJDEP) v. Navillus Group, Docket No. A-4726-13T3 (N.J. App. Div. Jan. 14, 2016), the Appellate Division of the Superior Court of New Jersey determined that there was insufficient evidence on summary judgment to hold the principal of a company personally liable for part of a $2 million judgment in an action brought pursuant to the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et seq. (the “Spill Act”) to recover costs expended by the State to clean up a contaminated property in Franklin Township owned by Jim Sullivan, Inc.  The court also reversed the trial court’s finding of liability against the defendants under a theory of unjust enrichment. Read More »

Another opinion was issued yesterday in the Morristown Associates v. Grant Oil Co. case, Dkt. No. A-0313-11T3 (N.J. App. Div., Nov. 17, 2015), a case which became famous earlier this year when the New Jersey Supreme Court held that there is no statute of limitations for private-party contribution claims under the New Jersey Spill Act. After the case was remanded following the New Jersey Supreme Court’s decision, the Appellate Division had to address several issues that the parties had appealed, but were deemed moot when the Appellate Division previously dismissed the case on statute of limitations grounds.  Read More »