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 The remediating party, ruled the New Jersey Superior Court, Appellate Division, on December 7, 2021, in an unpublished decision captioned Cozzoli Machine Company v. Crown Real Estate Holdings, Inc., No. A-1733-19.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 Tuesday, June 29, 2021, the United States Supreme Court reversed the Third Circuit and held that Section 717f(h) of the Natural Gas Act authorizes Federal Energy Regulatory Commission (FERC) certificate holders to “condemn all necessary rights-of-way, including land in which the State holds an interest.” See PennEast Pipeline Co., LLC v. New Jersey, Slip Op. No. 19-1039, (June 29, 2021). This holding is consistent with history and precedent regarding the superior power of federal eminent domain. Read More »

Share | Email| Comments|  Topics: Condemnation, Eminent Domain, Federal Energy Regulatory Commission, FERC, Marcellus Shale, Natural Gas, Natural Gas Act, New Jersey, Oil and Gas, Pipelines, Public Lands, Sovereign Immunity, Supreme Court, Takings, Takings Clause, Third Circuit, United States Supreme Court

Last week the Third Circuit held that Combustion Equipment Associates, Inc. n/k/a Carter Day Industries, Inc. (“Carter Day”) was not protected from a contribution claim brought by Compaction Systems Corporation of Connecticut, Inc. and Compaction Systems Corporation (collectively, “Compaction”) for amounts Compaction was obligated to pay to the United States despite Carter Day having resolving its liability to the State of New Jersey for the same site. New Jersey Department of Environmental Protection v. American Thermoplastics Corporation, et al., Nos. 18-2865 & 19-2243 (3d. Cir. Sept. 8, 2020). At issue was whether the settlement agreement between Carter Day and the New Jersey Department of Environmental Protection (“NJDEP”) addressed the same “matter” as the contribution claim brought by Compaction for response costs at the Combe Fill South Landfill Superfund Site (the “Combe Fill Site” or “Site”). Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Contribution, EPA, Landfill, New Jersey, Remediation, Superfund, Third Circuit

In a Letter Order issued on July 10, 2020, the United States District Court for the District of New Jersey held that broad language by which an entity assumed the liabilities of a dissolved entity was sufficient to confer both personal jurisdiction and liability on the entity which assumed the obligations. Occidental Chemical Corporation v. 21^st Century Fox America, et. al., Civ. Action No. 18-11273 (D.N.J. July 10, 2020). In doing so, the Court brushed aside arguments that the jurisdiction was lacking because the dissolved entity had ceased operations in New Jersey long before the assumption of liability and that the lack of specificity in the assumption precluded a finding that CERCLA liability was included. Read More »

Share | Email| Comments|  Topics: CERCLA, Contribution, Cost Recovery, New Jersey, Personal Jurisdiction, Sediment Sites, Successor Liability, Superfund

In an unpublished opinion, Sutton v. Hoffmann-La Roche, Inc., No. A-5545-18T3 (N.J. App. Div. May 27, 2020), the Appellate Division of the New Jersey Superior Court recently affirmed a lower court’s certification of a class seeking damages due to lost property value premised upon the existence of contaminated groundwater.  Certification of similar homeowner classes has been illusive in federal courts, and thus of particular note here, the Appellate Division made clear that the while the language of New Jersey’s class certification rule is “textually similar” to the federal rule, New Jersey’s interpretation of its own rule is “far more liberal and permissive toward class certification.” Op. at 30, n. 6. Although the local nature of the case most likely made the Class Action Fairness Act inapplicable, this decision is further evidence of the importance to defendants in class action litigation of exercising removal jurisdiction whenever possible. Read More »

Share | Email| Comments|  Topics: CAFA, Certification, Class Actions, Contamination, Damages, Groundwater, Negligence, New Jersey, Nuisance, Property Value, Residential, Trespass

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