On April 7, 2020, the Appellate Division of the New Jersey Superior Court rendered its decision in New Jersey Department of Environmental Protection v. Hess, A-2893-18T2 (N.J. Super. App. Div. Apr. 7, 2020), one of the lawsuits in which the State of New Jersey (the “State”) is seeking to recover natural resource damages (“NRDs”). Earlier this year we flagged the Appellate Court’s opinion as one to watch in 2020, particularly with respect to how the Appellate Court would rule on the State’s ability to assert a claim for trespass over land it does not own—an issue that has divided sister trial courts. See New Jersey Department of Environmental Protection v. Deull Fuel, No. ATL-L-1839-18 (N.J. Super. Ct. Law Div. Aug. 8, 2019) (denying motion to dismiss common law trespass claim because Public Trust Doctrine supersedes exclusivity element of trespass); New Jersey Department of Environmental Protection v. Hess, MID-L4579-18 (N.J. Super. Ct. Law Div. Dec. 21, 2018) (granting motion to dismiss common law trespass claim because State lacked exclusive possession over the land).  The Appellate Court’s unreported opinion provides clarity that despite the State’s authority under the public trust doctrine, it cannot assert a claim for trespass in the absence of exclusive possession. Read More »

Share | Email| Comments|  Topics: Contamination, Natural Resource Damages, New Jersey, Nuisance, Oil and Gas, Spill Act, Strict Liability, Trespass, Water Pollution Control Act

Sometimes a movie can solve one mystery but hold off answering others, leaving viewers eager for the sequel. Legal opinions can be the same, as is the Third Circuit’s opinion in Cranbury Brick Yard, LLC v. United States, No. 18-3287 (3^rd Cir. Nov. 22, 2019). After holding that the limitations period for a contribution action accrues from the date of entry into a non-judicial settlement and order on consent, the Court then sidesteps the issue of exactly what limitations period applies. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Federal Tort Claims Act, New Jersey, Remediation, Statute of Limitations, Superfund, Third Circuit

On September 10, the Third Circuit held that while the National Gas Act (NGA) delegates the federal government’s power of eminent domain to private gas companies, it does not necessarily delegate the federal government’s exemption from state sovereign immunity. In re: PennEast Pipeline Company, LLC, No. 19-1191 (3d Cir. 2019). As a result, private entities acting under the NGA cannot condemn state-owned property absent action by an accountable federal official. Read More »

Share | Email| Comments|  Topics: Condemnation, Eleventh Amendment, Eminent Domain, Federal Energy Regulatory Commission, FERC, Natural Gas, Natural Gas Act, New Jersey, Oil and Gas, Pipelines, Public Lands, Sovereign Immunity, Takings, Third Circuit

On January 4, 2019, the Superior Court of New Jersey, Appellate Division, affirmed a Middlesex County trial court order holding that judicial estoppel is a valid defense to contribution claims under the New Jersey Spill Compensation and Control Act (the “Spill Act”), at N.J.S.A. 58:10-23.11 to 23.24. The case, Terranova et al., v. Gen. Elec. Pension Trust et al., N.J. Super. App. Div. Docket No. A-5699-16T3, involved a dispute between Plaintiffs Matthew and Karen Terranova and their company New Land Holdings, LLC, the current landowners of a contaminated gas station property, against Defendants General Electric Pension Trust, Atlantic Richfield Co., Amerco Real Estate Company, Charles Boris, Jr., Carol Boris, and Edward Wilgucki, former owner-operators at the site. Plaintiffs sought contribution for costs to remediate impacts from leaking gasoline underground storage tanks (“USTs”). Read More »

Share | Email| Comments|  Topics: Contamination, Expert Witness, New Jersey, Procedure, Remediation, Spill Act, Storage Tank

In an unpublished opinion, the United States District Court for the District of New Jersey held that the Government was not liable under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) or Resource Conservation and Recovery Act (“RCRA”) for remediation costs incurred at a former defense site. PPG Indus., Inc. v. United States, No. 12-3526, 2018 WL 6168623 (D.N.J. Nov. 26, 2018). Last year we reported on TDY Holdings v. United States, in which the Ninth Circuit rejected a zero percent liability allocation to the government for remediation costs incurred at a former aeronautical manufacturing plant. In PPG Industries, the District of New Jersey found that the Government’s general wartime control over a New Jersey chromite facility was insufficient by itself to impose liability absent a direct connection between the Government and waste disposal activities. The District Court’s decision highlights a hurdle for private parties hoping to hold the government responsible for cleanup costs incurred at former defense sites. Read More »

Share | Email| Comments|  Topics: Allocation, Arranger Liability, CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, New Jersey, RCRA, Second Circuit, Superfund, Waste

On February 12, 2018, the Appellate Division of the Superior Court of New Jersey held that environmental groups had standing to challenge on appeal the trial court’s ruling accepting DEP’s $225 million settlement with Exxon Mobil for Natural Resource Damages (“NRD”), which include compensation for the injury and destruction of natural resources and the public’s loss of the use and enjoyment of those resources under New Jersey’s Spill Compensation and Control Act (“Spill Act”). See New Jersey Dep’t of Envtl. Prot. v. Exxon Mobil Corp., No. A-0668-15T1, 2018 WL 823001 (N.J. Super. Ct. App. Div. Feb. 12, 2018). The appellate court ultimately upheld the settlement, notably the largest NRD settlement in New Jersey’s history, finding that it was a reasonable compromise and was in the public interest.  Two weeks later, however, the environmental groups whom the Court found had standing to appeal, including the New Jersey Sierra Club and the Delaware Riverkeeper filed a Petition for Certification, requesting that the New Jersey Supreme Court review the decision.  Read More »

Share | Email| Comments|  Topics: Intervention, Natural Resource Damages, New Jersey, Spill Act

In a decision issued earlier this month, Judge Wolfson of the District of New Jersey held that the New Jersey Department of Environmental Protection (“NJDEP”) could recover primary restoration natural resource damages from a responsible party as long as NJDEP demonstrated by a preponderance of the evidence that its proposed primary restoration plan is “practicable.” New Jersey Dep’t of Envtl. Prot. v. Amerada Hess Corp., No. 15-6468 (FLW)(LHG) (D.N.J. Nov. 1, 2017).  In so holding, Judge Wolfson rejected an argument by the defendants, including Exxon Mobil Corporation and ExxonMobil Oil Corporation (“Defendants”), that primary restoration natural resource damages were available only upon a showing of “an injury or threat to human health, flora, or fauna.”  The court found that such a standard, which was derived by Defendants from unpublished, non-controlling authority from New Jersey state courts, was inconsistent with the plain language of the Spill Act that speaks directly in terms of “practicability.” Read More »

Share | Email| Comments|  Topics: Contamination, Damages, Natural Resource Damages, New Jersey, Spill Act

New Jersey’s Brownfield and Contaminated Site Remediation Act (the “Brownfield Act”) provides that a “person” who owns contaminated property may be entitled to a Hazardous Discharge Site Remediation Fund Innocent Party Grant (“innocent party grant”) to pay for remediation of the property so long as that person meets two requirements: (i) the person acquired the property prior to December 31, 1983 and continued to hold it until the innocent party grant is approved, and (ii) the person did not contribute to the contamination at the property.  N.J.S.A. 58:10B-6(a)(4).

In a decision issued last week, the New Jersey Superior Court, Appellate Division, held that Cedar Knolls 2006, LLC (“Cedar Knolls”) was eligible for an innocent party grant for the remediation of its property even though Cedar Knolls was not technically the same “person” that acquired the property before the statutory deadline. (Cedar Knolls 2006, LLC v. NJDEP, Dkt. No. A-1405-15T3 (N.J. Super. Ct. Sept. 20, 2017)).  In doing so, the Superior Court explained that, with respect to owners eligible for innocent party grants, the Brownfield Act was more concerned with the “substance of ownership and continuity than the technicalities of the legal form.” Read More »

Share | Email| Comments|  Topics: Brownfield, Brownfields, Cleanup, Contamination, Innocent Party, ISRA, New Jersey, Real Estate, Remediation

Earlier this week, the New Jersey Supreme Court ruled that Spill Act contribution claims against the State of New Jersey for events prior to April 1, 1977 – the date the statute was enacted – are barred by the doctrine of sovereign immunity.  This ruling places the State on an unequal footing with private parties for historic environmental liability under the Spill Act, and in effect, creates an automatic orphan share for pre-1977 sites where the State would otherwise have liability.  Read More »

Share | Email| Comments|  Topics: Army Corps, Case Update, Cases to Watch, Cleanup, Contamination, Contribution, Decisions of Note, New Jersey, Remediation, Retroactive, Sovereign Immunity, Spill Act, Superfund, Supreme Court

Earlier this month, New Jersey’s Appellate Division affirmed a judgment issued by the Chancery Division, the state’s court of equity, which required neighbors to participate and share in the costs of investigating nearby contamination even though there was not yet any evidence as to the precise source of the contamination. Matejek v. Watson et al., Dkt. No. A-4683-14T1 (N.J. Super. Ct. Mar. 3, 2017).  In doing so, the Appellate Division adopted an expansive view of the Chancery Division’s power to fashion an equitable remedy when the letter of the law, in this case New Jersey’s Spill Compensation and Control Act (Spill Act), does not provide for one. Read More »

Share | Email| Comments|  Topics: Contamination, Contribution, Declaratory Relief, Equity, New Jersey, Real Estate, Spill Act, Storage Tank