In an unpublished opinion issued last week, the Appellate Division of the New Jersey Superior Court found that a local ordinance that declares as a nuisance “the escape into the open air . . . of smoke, fly ash, dust, fumes, vapors, mists, or gases as to cause injury, detriment or annoyance . . .” is neither preempted by the New Jersey Solid Waste Management Act (“SWMA”) nor unconstitutionally broad or vague.  The case, New Jersey v. Strategic Environmental Partners, LLC, No. A-4968-13T4, was decided on November 19, 2015 by Judges Messano and Simonelli. Read More »

Share | Email| Comments|  Topics: Consent Decree, Enforcement, Enforcement Action, Landfill, New Jersey, Nuisance, Odors, Preemption, Waste

Another opinion was issued yesterday in the Morristown Associates v. Grant Oil Co. case, Dkt. No. A-0313-11T3 (N.J. App. Div., Nov. 17, 2015), a case which became famous earlier this year when the New Jersey Supreme Court held that there is no statute of limitations for private-party contribution claims under the New Jersey Spill Act. After the case was remanded following the New Jersey Supreme Court’s decision, the Appellate Division had to address several issues that the parties had appealed, but were deemed moot when the Appellate Division previously dismissed the case on statute of limitations grounds.  Read More »

Share | Email| Comments|  Topics: Cases to Watch, Cleanup, Contamination, Cost Recovery, Decisions of Note, Negligence, New Jersey, Remediation, Spill Act, Statute of Limitations, Storage Tank

The New Jersey Superior Court Appellate Division recently confirmed that the New Jersey Spill Act applies retroactively and abrogates the State of New Jersey’s sovereign immunity for contribution to contamination.  The case, NL Industries, Inc. v. State, Dkt. No. L-1296-14 (Law Div., Middlesex Cnty., August 27, 2014), affd. Dkt. No. A-0869-1413, (App. Div., Aug. 26, 2015), deals with the remediation of contamination related to the historic construction of a sea wall and jetty in the Laurence Harbor section of Old Bridge Township.  The sea wall and jetty are part of the Raritan Bay Superfund site, which was placed on the National Priorities List in November 2009 after EPA detected elevated levels of lead and heavy metals in the soil, beach, sand, and sediments surrounding the Bay.  In January 2014, the EPA issued a unilateral administrative order to NL Industries, the manufacturer of lead and other heavy metal slags that were used to construct the sea wall, to clean up the contamination, which is anticipated to cost in excess of $75 million.   Read More »

Share | Email| Comments|  Topics: Cases to Watch, Cleanup, Contamination, Contribution, Cost Recovery, Decisions of Note, EPA, New Jersey, Remediation, Retroactive, Sovereign Immunity, Spill Act, Superfund

In the 2012 case of New Jersey Schs. Dev. Auth. v. Marcantuone, 428 N.J. Super. 546 (App.Div. 2012), the New Jersey Appellate Division held that a passive landowner who purchased contaminated property prior to the enactment of the New Jersey Spill and Compensation Act (“Spill Act”) was a liable party under the Act even if the owner did not contribute to the contamination, unless it could meet the Spill Act’s definition of an “innocent purchaser.”  This decision gave rise to an entirely new wave of litigation against landowners who, previously, were not thought to be PRPs under the Spill Act.  Last week, however, the Appellate Division of the Superior Court of New Jersey returned some hope to these property owners when it affirmed a Superior Court decision holding that, while a passive landlord is a  liable party under the Spill Act, application of the equitable principles of allocation may result in a finding that such a landlord is nevertheless 0% responsible  for the costs of remediation.   Read More »

Share | Email| Comments|  Topics: Causation, Cleanup, Contamination, Contribution, Cost Recovery, Expert Witness, Leases, New Jersey, Real Estate, Remediation, Spill Act

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

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

In general, when a party shares communications or information protected by the attorney-client or work product privilege with a third party, the privilege is waived.  However, in many jurisdictions, if this sharing occurs when there is anticipated or actual litigation, a “common interest” exception allows parties to disclose privileged information amongst themselves while still preserving the privilege against disclosure to their adversaries.  On Monday, the New Jersey Supreme Court in O’Boyle v. Boro. of Longport, No. A-16-12, 2014 WL 355874 (N.J., July 21, 2014), expressly adopted this “common interest” rule (also often referred to as the “joint defense privilege”) so that parties to litigation in New Jersey can share privileged communications and information without the risk of destroying the underlying privilege.  Read More »

Share | Email| Comments|  Topics: Attorney-Client, Decisions of Note, New Jersey, OPRA, Privilege, Work Product

In a 7-2 opinion issued today, the United States Supreme Court held that CERCLA does not preempt state law statutes of repose that foreclose causes of action for personal injury and property damage claims asserted after a statutorily-prescribed time period has elapsed, effectively absolving potential defendants from liability.

The case – CTS Corp. v. Waldburger et al, 573 U.S. ___ (2014) (slip op) – involves a 2011 state-law nuisance action against the former property owner, CTS Corp., which in 1987 sold property contaminated with TCE and DCE, which it had characterized as “environmentally sound.”  More than 20 years after CTS Corp. sold the property, EPA informed subsequent property owners and adjacent landowners that their groundwater was contaminated and that the source of the contamination was the former electronics manufacturing facility operated by CTS Corp. on the property. Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Contribution, Cost Recovery, Decisions of Note, Discovery Rule, EPA, Fourth Circuit, New Jersey, Nuisance, Pennsylvania, Preemption, Real Estate, Remediation, Spill Act, Statute of Limitations, Statute of Repose, Superfund, Supreme Court, Tolling, Toxic Torts

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