Last week, the U.S. District Court for the District of New Jersey denied Alcoa Domestic LLC’s request that the court dismiss claims against it regarding a previously owned site, finding that Alcoa may be in breach of the Purchase and Sales Agreement for the site and thus still liable for contamination caused by the removal of materials from the site. The case, Borough of Edgewater v. Waterside Construction, LLC et al., Civil Action No. 14-5060 (D.N.J. December 14, 2016), concerns the Borough of Edgewater’s endeavor to remediate contamination at Veteran’s Field in Edgewater, New Jersey in 2012.  A New Jersey contractor, Defendant Waterside Construction, LLC (and several other interrelated companies, collectively, “Waterside”), was awarded the contract for the remediation, which required Waterside to import clean stone to be used as fill in certain areas of the Veteran’s Field site.  Subsequent inspections revealed that the fill was contaminated, and Waterside admitted that the fill material originated from the former Alcoa Site, which is contaminated. Read More »

Share | Email| Comments|  Topics: Breach of Contract, CERCLA, Cleanup, Cost Recovery, Defense Costs, Indemnification, New Jersey, Real Estate, Remediation, Spill Act, Superfund

On Halloween, the New Jersey Appellate Division issued a potentially “scary” ruling and cautionary tale for owners of contaminated property who first remediate the conditions, and then later decide to pursue other potentially responsible parties (“PRPs”) to recover costs associated with the cleanup efforts under the New Jersey Spill Compensation and Control Act (the “Spill Act”).  In Pollitt Drive, LLC v. Engel et al., Dkt. No. A-4833-13T3 (App. Div., Oct. 31, 2016), the Appellate Division affirmed a trial court finding that the plaintiff, property owner Pollit Drive, LLC (“Pollit”), improperly discarded a corroded pipe, sump pit, and concrete floor that were located beneath a building at an industrial property that formerly housed various commercial printing businesses, thus warranting sanctions for spoliation of evidence.  Spoliation occurs when a party violates its duty to preserve evidence that could be relevant to a matter at issue in litigation.  The duty to preserve evidence generally arises when a party has actual knowledge of pending litigation, or when litigation is “probable.”  Spoliation can result in the court issuing various degrees of sanctions, ranging from an adverse inference, a prohibition from introducing anything related to the spoliated evidence, striking pleadings, payment of attorneys’ fees, or the most harsh sanction – a complete dismissal of the case.   Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, New Jersey, Remediation, Spill Act, Spoliation, Superfund

Earlier this month, for the first time a New Jersey trial court applied the often pled, but seldom effective, laches defense to bar a private-party claim for contribution under the New Jersey Spill Compensation and Control Act (the “Spill Act”).  Laches is an equitable principle that can be used to defend a claim that has become too “stale” by the plaintiff’s unreasonable delay in pursuing the claim, and where the defendant has suffered some harm from the delay.  Laches can bar a claim even if the plaintiff initiates the lawsuit within the applicable statute of limitations, or where no statute of limitations exists – such is the case for private party contribution claims under the Spill Act, which last year the New Jersey Supreme Court affirmed in Morristown Assoc. v. Grant Oil Co., 220 N.J. 360 (2015) are not subject to any statute of limitations.  In light of the Morristown decision, private claims for contribution under the Spill Act could therefore be brought decades after the discovery of contamination at a site.   Read More »

Share | Email| Comments|  Topics: Cases to Watch, Contamination, Contribution, Cost Recovery, Decisions of Note, Laches, New Jersey, Remediation, Spill Act, Statute of Limitations

Earlier this month, in the case of New Jersey Dep’t of Environmental Protection (NJDEP) v. Navillus Group, Docket No. A-4726-13T3 (N.J. App. Div. Jan. 14, 2016), the Appellate Division of the Superior Court of New Jersey determined that there was insufficient evidence on summary judgment to hold the principal of a company personally liable for part of a $2 million judgment in an action brought pursuant to the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et seq. (the “Spill Act”) to recover costs expended by the State to clean up a contaminated property in Franklin Township owned by Jim Sullivan, Inc.  The court also reversed the trial court’s finding of liability against the defendants under a theory of unjust enrichment. Read More »

Share | Email| Comments|  Topics: Cleanup, Contamination, Cost Recovery, Equity, New Jersey, Property Value, Remediation, Spill Act

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

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 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

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