In New Jersey, a property owner affected by a release from an underground storage tank cannot succeed on a private nuisance or trespass action absent demonstration of the tank owner’s intentional, negligent or reckless conduct.  Moreover, neither the tank owner’s insurer’s agreement to remediate the affected property nor the migration of the leaked substance onto the affected property conveys the affected property owner third party beneficiary status such that the property owner can maintain a bad faith action against the insurance provider.  In Ross v. Lowitz, No. A-101-13 (N.J. Aug. 6, 2015), the New Jersey Supreme Court recently issued a decision narrowing the avenues to recovery of property owners affected by a release from a neighboring underground storage tank by clarifying these two rules. Read More »

Share | Email| Comments|  Topics: Cleanup, Contamination, Cost Recovery, Decisions of Note, Insurance, Insurance Coverage, New Jersey, Nuisance, Remediation, Residential, Storage Tank, Trespass

An issue that insurers and industry have grappled with is whether a company can obtain environmental insurance coverage for costs to address violations of the Clean Air Act, when the costs at issue are aimed at curbing future air emissions, rather than remediating emissions that have already occurred.  Last week, one federal judge in Louisiana answered that question in the affirmative in La Gen Louisiana Gen. LLC, et al. v. Illinois Union Ins. Co., Dkt. No. 3:10-cv-00516 (M.D. La., Aug. 5, 2015).  Read More »

Share | Email| Comments|  Topics: Air, Cases to Watch, CERCLA, Clean Air Act, Decisions of Note, Defense Costs, Electric, Emissions, Energy, Enforcement Action, EPA, Fifth Circuit, Indemnification, Insurance, Insurance Coverage, Louisiana, Remediation

Environmental law attorneys are persistently reminded to avoid overuse of acronyms, lest we forget what they mean, and a ruling from the Southern District of California recently provided an example of why we should remember to break these acronyms down to their roots.  The Court’s opinion showed that a PRP is just that, a potentially responsible party, as it held that the United States government was 0% liable for the environmental contamination of a site, even though it was deemed a former “owner” of the facility under CERCLA. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Superfund

We’ve been following the case of Strudley v. Antero Resources Corp., No. 2011 CV 2218, since May, 2012, when a Colorado trial court dismissed the action following plaintiffs’ failure to establish, pursuant to a Lone Pine order, a prima facie case showing that the defendant, a natural gas drilling company, was responsible for plaintiffs’ personal injuries.  The Lone Pine order required the Strudleys to submit to the Court, before it would allow any discovery, sufficient expert opinions, scientific testing results, and personal medical information to support their claims.  In July, 2013, a Colorado Court of Appeals reversed, finding that Lone Pine orders were not permitted under Colorado law and thus the plaintiffs could not be shut out of the courthouse at such an early stage. Read More »

Share | Email| Comments|  Topics: Case Update, Causation, Contamination, Discovery, Drilling, Due Process, Marcellus Shale, Natural Gas, Oil and Gas, Procedure, Real Estate, Toxic Torts

Back in August of 2013, we reported that the Appellate Division of the New Jersey Superior Court, in the case of Morristown Associates v. Grant Oil Co., held that a six year statute of limitations applied to claims brought pursuant to the Spill Act.  On Tuesday, January 27, 2015, the New Jersey Supreme Court overturned that decision to find that there is no statute of limitations barring a Spill Act claim.  MGKF will shortly be issuing a Special Alert discussing this important decision in more detail.

Share | Email| Comments|  Topics: Case Update, Cleanup, Contamination, Cost Recovery, Decisions of Note, New Jersey, Procedure, Real Estate, Remediation, Spill Act, Statute of Limitations

Back in July of last year, in the case of Hobart Corp. v. Waste Management of Ohio, 758 F.3d 757 (6^th Cir. 2014), held that the statute of limitations for a contribution action following the execution of an Administrative Settlement Agreement and Order on Consent (“AOC”) that settles an entity’s liability to the government begins to run as of the effective date of the AOC.  To the extent that anyone might have thought that the Sixth Circuit would reconsider this holding, those hopes have been dashed.  On January 24, 2015, in LWD PRP Group v. Alcan Corp., ___ F.3d ___ (6^th Cir. 2015), the Sixth Circuit stood fast, finding that it lacked “power to reverse [Hobart,] reversing the district court’s denial of a motion to dismiss certain counterclaims. Read More »

Share | Email| Comments|  Topics: CERCLA, Contribution, Cost Recovery, EPA, Removal, Sixth Circuit, Statute of Limitations, Superfund

In November 2009, a group of 44 plaintiffs, including the Ely family, filed suit against Cabot Oil & Gas Corp. for personal injuries and property damages that allegedly resulted from Cabot’s hydraulic fracturing operations in Dimock Township, Susquehanna County, Pennsylvania. The case is pending in the Middle District of Pennslyvania, captioned as Ely et al. v. Cabot Oil & Gas Corp., et al., Dkt. No. 3:09-cv-2284 (M.D. Pa.) (J. Carlson). After a number of parties settled out of the lawsuit, Cabot filed a motion for summary judgment on the Elys’ claims for breach of contract and lost royalties on an oil and gas lease, fraudulent inducement, negligence and negligence per se, medical monitoring, and violations of the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”).   On Monday, nearly all of the Elys’ claims were dismissed. Read More »

Share | Email| Comments|  Topics: Breach of Contract, Contamination, Cost Recovery, Dimock, Drilling, Exploration, Leases, Medical Monitoring, Natural Gas, Negligence, Nuisance, Oil and Gas, Pennsylvania, Real Estate, Residential, Toxic Torts, Trespass