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

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

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

On August 1, 2014, the Ninth Circuit Court of Appeals handed down a decision in Arizona v. Raytheon Co., No. 12-15691 (9^th Cir. Aug. 1, 2014), that may give trial courts some pause before approving future CERCLA settlements.  At issue was whether the trial court failed to adequately scrutinize consent decrees entered into between the Arizona Department of Environmental Quality (the “ADEQ”) and twenty-two Potentially Responsible Parties (“PRPs”) allegedly liable under CERCLA for contamination at the Broadway-Patano Landfill Site.  The majority opinion held that the trial court’s deference to the AQED’s judgment that the settlements were fair and reasonable was impermissible, and sent the case back down for a more thorough fairness hearing.   However, the more important aspect of the decision may be that, in dicta, the Court concluded that “[e]ven if EPA had been a party to the proposed consent decrees in this case, the district court would have failed to fulfill its duty to independently scrutinize the parties’ agreements.”  Id. at 21. Read More »

Share | Email| Comments|  Topics: Arizona, CERCLA, Cleanup, Consent Decree, Contamination, Contribution, EPA, Landfill, Ninth Circuit, Remediation, Removal, Superfund

In BASF v. Township of Toms River, No. 002155-2011 (N.J. Tax Court Dec. 5, 2013), the Court was asked to decide, in advance of trial, the proper methodology for determining the assessed value of a large tract of land that had been designated as a Superfund Site, but which contained large portions of uncontaminated and developable land.  While the Township sought to discount the value of only the polluted areas of the property, the owner contended that the pollution discount must be applied to the entire parcel.  And that is exactly how the Court saw it. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, CERCLA, Cleanup, Contamination, New Jersey, Real Estate, Remediation, Superfund, Taxes

Determining the appropriate Statute of Limitations for claims brought pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601, et seq. (“CERCLA”), is often a tricky matter.  Usually, the issue arises in the context of determining whether a claim is properly brought under Section 107(a), 42 U.S.C. § 9607(a), for costs voluntarily incurred, or § 113(f), 42 U.S.C. § 9613(f), for costs incurred pursuant to a court order or approved settlement, as Section 107(a) claims may be subject to a six-year statute of limitations, while claims under Section 113(f) have a three-year limitations period.  However, in State of New York v. Next Millenium Realty, LLC, No. 12-2894-cv (2^nd Cir. Oct. 15, 2013), the Second Circuit turned its attention to a different distinction, the one between removal actions and remedial actions, as Section 107(a) claims “must be commenced … for a removal action, within 3 years after completion of the removal action [and] for a remedial action, within 6 years after initiation of physical on-site construction of the remedial action. . . .”  42 U.S.C. Section 9613(g)(2)(B).  In order to find the claims of the State of New York timely, the Court held that a water purification system in use for over 15 years was nevertheless a removal action and not a remedial action because, among other things, the measures were intended to “minimize and mitigate” damage from contamination and not to “permanently eliminate” it.  Id. at 24. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Cost Recovery, New Jersey, Procedure, Remediation, Removal, Second Circuit, Statute of Limitations, Superfund

Under Section 9607(a)(3) of CERCLA, a party who has arranged for the disposal of hazardous substances at a facility may, like other categories of Potentially Responsible Parties, be strictly liable for response costs.  Where the PRP has engaged in the sale of a “useful product,” even one known to be hazardous, is not liable as an arranger unless the PRP has taken “intentional steps to dispose of a hazardous substance.”   Burlington Northern and Santa Fe Ry. Co. v. U.S., 556 U.S. 599, 609-10 (2009)(“BNSF”).  Mere knowledge that there might be a discharge of hazardous substances in connection with the transport or use of the product is not sufficient to impose arranger liability.  Id. at 611.  As a result, “whether an entity is an arranger requires a fact-intensive inquiry that looks beyond the parties’ characterization of the transaction . . . and seeks to discern whether the arrangement was on Congress intended to fall within the scope of CERCLA’s strict-liability provisions.  Id. at 610.  Just such a “fact-intensive inquiry” was undertaken by the United States District Court for the Western District of Michigan last week in Georgia-Pacific Consumer Products LP v. NCR Corp., Case No. 1:11-CV-483 (W.D.MI. Sept. 26, 2013), one of a number of cases dealing with the recycling of “broke,” or scraps of carbonless copy paper coated with a PCB-containing emulsion produced by NCR from the mid-1950’s until 1971.  Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Waste, Water

For decades, it has been the unanswered question – what is the statute of limitations for a claim under New Jersey’s Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et. seq. (the “Spill Act”)?  Unlike CERCLA, the Spill Act contains no express statute of limitations for private contribution actions.  Thus, trial courts have been left to fend for themselves and, as a result, have failed to achieve consensus.  Federal district courts have unanimously applied New Jersey’s six year limitations period for actions for damages to real property, while, until Friday, the only state decision was an unpublished trial court opinion holding that there is no limitations period for such claims.  But on August 23, 2013, the Appellate Division of the Superior Court of New Jersey, in the case of Morristown Assoc. v. Grant Oil Co., No. A-0313-11T3 (App. Div. Aug. 23, 2013), finally spoke and, in agreement with the federal courts, held that the six-year limitations period applies. Read More »

Share | Email| Comments|  Topics: Cleanup, Contamination, Contribution, Cost Recovery, Decisions of Note, New Jersey, Private Right of Action, Remediation, Spill Act, Statute of Limitations, Statute of Repose, Tolling

As footnoted in yesterday’s post, the decision in Trinity Industries, Inc. v. Chicago Bridge & Iron Co., No. 12-2059 (3^rd Cir. Aug. 20, 2013), was a twofer.  Yesterday, we wrote about that part of the decision which held that a party who has resolved its liability under state statutes may seek contribution under Section 113(f) of CERCLA.  Today, we look at the second part of the decision, which concerns the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §6901, et seq.  Read More »

Share | Email| Comments|  Topics: Cleanup, Consent Decree, Contamination, Pennsylvania, Private Right of Action, RCRA, Remediation, Removal, Third Circuit, Waste

The Third Circuit keeps rolling out environmental decisions this month, and while Bell v. Cheswick Generating Station, No. 12-4216 (3d Cir. Aug. 20, 2013), received the lion’s share of press this week (including here), another decision issued the same day, Trinity Industries, Inc. v. Chicago Bridge & Iron Co., No. 12-2059 (3^rd Cir. Aug. 20, 2013), is also worth reading.  In it, the Third Circuit holds that a party who has resolved its liability to the state for remediation under state law may pursue contribution under CERCLA, which puts the Third Circuit in conflict with the Second Circuit on this issue. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Pennsylvania, Remediation, Superfund, Third Circuit