In Borough of Edgewater v. Waterside Construction, LLC, et al., 2022 WL 557903 (D.N.J. Feb. 24, 2004), Plaintiff Borough of Edgewater (“Edgewater”) brought Spill Act claims relating to PCB contaminated material which was used as fill in a public park project.  At issue was whether Arconic, as a prior owner of the property from which the fill was obtained, was “in any way” responsible for contamination resulting from use of the fill at another property.  The Court held that, because Arconic had no control over the property, and hence the fill, at the time of its subsequent use, it was not liable to the Borough under the Spill Act. Read More »

Share | Email| Comments|  Topics: Causation, Contamination, New Jersey, Owner Liability, PCBs, Potentially Responsible Parties, Real Estate, Spill Act

A successful defense of a mass environmental tort case frequently turns on class certification.  In Holly Lloyd v. Covanta Plymouth Renewable Energy, LLC, No. 20-4330, 2022 WL 407377 (E.D. Pa. Feb. 10, 2022), a federal district court denied a motion to certify a class of neighboring residents complaining about noxious odors from a municipal waste incinerator.  In so holding, the court’s decision set out key strategies and considerations for defeating class certification in future mass environmental tort cases.  Read More »

Share | Email| Comments|  Topics: Certification, Class Actions, Nuisance, Odors, Pennsylvania, Real Estate, Residential, Waste

On Tuesday, February 8, 2022, the Eleventh Circuit affirmed the Southern District of Alabama’s dismissal of admiralty claims against the United States for oil-removal damages holding first that Oil Pollution Act of 1990’s (“OPA”), 33 U.S.C.S. § 2701 et. seq., does not authorize a claim against the federal government, and second, the OPA’s comprehensive remedial scheme displaced the Government’s sovereign immunity waiver in the Suits in Admiralty Act of 1920 (“SAA”). See Savage Servs. Corp. v. United States, Slip Op. No. 21-10745 (11th Cir. Feb. 8, 2022). Read More »

Share | Email| Comments|  Topics: Cleanup, Contamination, Contribution, Eleventh Circuit, Oil and Gas, Oil Pollution Act

Rejecting federal officer removal and federal question removal theories, the Fourth Circuit affirmed the District of West Virginia’s remand of a state tort suit against the remediators of an EPA-permitted Resource Conservation and Recovery Act (“RCRA”) site.  W.V. St. Univ. Bd. of Govs. v. Dow Chem. Co. et al., No. 20-1712, __ F.4^th __, 2022 WL 90242 (Jan. 10, 2022). Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Federal Jurisdiction, Federal Procedure, Fourth Circuit, Groundwater, Negligence, Nuisance, Procedure, RCRA, Removal, Subject Matter Jurisdiction, Superfund, Trespass, West Virginia

Recently, there has been an explosion of litigation involving per- and polyfluoroalkyl substances (“PFAS”) contamination.  In SUEZ Water New York Inc. v. E.I. du Pont de Nemours and Company, et al., No. 20-CV-10731 (LJL), 2022 WL 36489, at *1 (S.D.N.Y. Jan. 4, 2022), a federal district court dismissed PFAS related contamination claims against four Delaware corporate defendants:  E.I. du Pont de Nemours and Company, Inc. (“Old DuPont”), The Chemours Company (“Chemours”), DuPont de Nemours, Inc (“New DuPont”), and Corteva, Inc. (“Corteva”) (collectively “Defendants”).  The court dismissed the Complaint against New DuPont and Corteva due to lack of personal jurisdiction over each defendant.  Although the court found that personal jurisdiction existed over Old DuPont and Chemours, it ultimately still dismissed the Complaint against these defendants due to Plaintiff’s failure to state a claim against each of them. Read More »

Share | Email| Comments|  Topics: Causation, Drinking Water, Negligence, New York, Nuisance, Personal Jurisdiction, PFAS, Strict Liability, Successor Liability, Trespass

What happens when a property owner agrees with a regulator and a prior owner/operator to accept a commercial-level clean-up with institutional controls, but before the remediation is complete and the deed restriction recorded, a new owner takes title and insists on a clean-up to residential standards? Under New Jersey’s Industrial Site Remediation Act (ISRA), who wins? The remediating party, ruled the New Jersey Superior Court, Appellate Division, on December 7, 2021, in an unpublished decision captioned Cozzoli Machine Company v. Crown Real Estate Holdings, Inc., No. A-1733-19. Read More »

Share | Email| Comments|  Topics: Contamination, ISRA, New Jersey, Real Estate, Remediation

On December 2, 2021, addressing issues related to the definition of “disposal” and compliance with the National Contingency Plan (“NCP”) in a claim brought under Section 107 of CERCLA, the United States District Court for the Northern District of California denied both Plaintiff Stanford University’s (“Stanford”) motion for summary judgment and Defendant Agilent Technologies, Inc.’s (“Agilent”) cross motion for summary judgment. See Bd. of Trs. of the Leland Stanford Junior Univ. v. Agilent Techs., Inc., Slip Op. (N.D. Cal. Dec. 2, 2021). The Court denied Stanford’s motion because there was a genuine dispute about whether HP spread PCB contaminated soil over uncontaminated areas of Stanford’s property and Stanford failed to show that it incurred costs consistent with the NCP. Id.  The court denied HP’s cross motion because, although incurred in connection with redevelopment of the property, Stanford’s clean-up costs were “necessary” within the meaning of 42 U.S.C. § 9607(a)(4)(B) and, separately, because a genuine dispute existed as to whether Stanford consented to the disposal of hazardous material on its property. Id. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Cleanup, Cost Recovery, National Contingency Plan, Remediation, Superfund, Waste

On November 17, 2021, the Court of Appeals for the First Circuit affirmed a decision of the lower court that the Puerto Rico Industrial Development Company (PRIDCO) was prima facie liable under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601 et seq., that it could not avail itself of the contiguous property owner defense, and that the selected response action was not arbitrary or capricious.  The decision is particularly noteworthy in that the only identified contamination was in the groundwater under PRIDCO’s property, with no evidence that the source of the contamination was any activity on PRIDCO’s property.  Nevertheless, the Court held that because the movement of groundwater constitute a continuous “release,” CERCLA liability attached. Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Cost Recovery, EPA, First Circuit, Groundwater, Innocent Party, National Contingency Plan, Owner Liability, Solvents, Superfund

When a homeowner misses trash day for months, piling up stinking bags of trash in the backyard, neighboring homeowners could presumably bring a private nuisance claim against that homeowner to abate the nuisance.  But what if that neighbor was a landfill and its noxious odors spread for miles: who in the surrounding neighborhood would have standing to abate that apparent nuisance?  The answer depends on the jurisdiction.  In the recent decision Davies v. S.A. Dunn & Co., Nos. 530994/531613 (3d Dep’t Oct. 21, 2021), a split panel in the Appellate Division for the Third Judicial Department in New York dismissed public nuisance and negligence claims brought by neighboring residents against a landfill for failing to control its odor emissions because the plaintiffs failed to allege that they had suffered a “special injury” that was distinct from other residents in the area. Assuming it withstands any appeal, the decision is a significant check on public nuisance claims in New York.   Read More »

Share | Email| Comments|  Topics: Air, Damages, Landfill, Negligence, New York, Nuisance, Odors, Property Value, Residential, Waste

On October 12, 2021, the United States District Court for the District of Maryland granted summary judgment to Defendant Schumacher & Seiler, Inc. (“S&S”) and dismissed Plaintiff 68^th Street Site Work Group’s claim for contribution under CERCLA. See 68^th Street Site Workers Group v. AIRGAS Inc., Slip Op. (October 12, 2021). The District Court, applying the “underlying acts” or “conduct” approach, held that the Defendant’s CERCLA liability arose prior to, and was therefore discharged by, its Chapter 11 bankruptcy. Read More »

Share | Email| Comments|  Topics: Bankruptcy, CERCLA, Cleanup, Contamination, Contribution, Fourth Circuit, Landfill, Maryland, Superfund