One of the finest lines that environmental attorneys walk is in protecting communications between counsel and a retained environmental consultant from disclosure in litigation.  In a recent case out of the Northern District of Indiana, Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006 (N.D. Ill. Apr. 14, 2017), the Court found that communications between counsel and consultants retained by the counsel  were not protected by the attorney-client privilege, in large part because the consultants also performed remedial work.  However, as the work was done "in anticipation of litigation" with, among others, the Indiana Department of Environmental Management (IDEM) and EPA, substantive communications were protected by the attorney work product doctrine.   Read More »

Share | Email| Comments|  Topics: Attorney-Client, Cleanup, Contamination, Discovery, EPA, Federal Procedure, Indiana, Insurance, Insurance Coverage, Privilege, Procedure, Remediation, Stormwater, Work Product

Earlier this week, the New Jersey Supreme Court ruled that Spill Act contribution claims against the State of New Jersey for events prior to April 1, 1977 – the date the statute was enacted – are barred by the doctrine of sovereign immunity.  This ruling places the State on an unequal footing with private parties for historic environmental liability under the Spill Act, and in effect, creates an automatic orphan share for pre-1977 sites where the State would otherwise have liability.  Read More »

Share | Email| Comments|  Topics: Army Corps, Case Update, Cases to Watch, Cleanup, Contamination, Contribution, Decisions of Note, New Jersey, Remediation, Retroactive, Sovereign Immunity, Spill Act, Superfund, Supreme Court

Last week, a federal district court in Alabama rejected motions to dismiss a RCRA declaratory judgment and injunctive relief action filed by an environmental interest group against a group of defendants including an Alabama manufacturer that formerly used and disposed of materials containing perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”). Tennessee Riverkeeper, Inc. v. 3M Co. et al., No. 16-1029-AKK (Feb. 10, 2017 N.D. Ala.).  This decision follows a chain of increasing regulatory and private scrutiny of PFOA and PFOS.  In May 2016, EPA released more stringent drinking water standards for PFOA and PFOS, and firms that use, used, or disposed of one or both of the chemicals are frequently becoming the targets of regulatory and private enforcement efforts like this one. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Cleanup, Contamination, Drinking Water, Landfill, NPDES, RCRA, Water

Last week, the United States Court of Appeals for the Tenth Circuit ruled that a PRP’s bankruptcy settlement of its CERCLA liability did not bar that PRP from later seeking contribution for a share of the settlement – despite the bankruptcy court’s determination that the settlement represented the PRP’s “fair share” of CERCLA liability.  Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Decisions of Note, Superfund, Tenth Circuit

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

A U.S. District Court recently considered two questions in response to a citizen suit under the Resource Conservation and Recovery Act (“RCRA”) requesting injunctive relief while an ongoing state-court proceeding over the remediation was already ongoing: (1) whether the Court could enter injunctive relief even though the state-proceeding was ongoing; and (2) whether the Court should enter injunctive relief in light of the state-proceeding.  In the case, LAJIM, LLC, et al. v. General Electric Co., No. 13 CV 50348 (N.D. Ill. October 4, 2016), the U.S. District Court for the Northern District of Illinois first held that RCRA “plainly authorizes” injunctive relief in citizen suits, even when a state proceeding is ongoing.  But the Court found that it needed additional facts to determine whether the injunctive relief was appropriate in the case before it, and established an action plan to make such a finding.     Read More »

Share | Email| Comments|  Topics: Citizen Suit, Cleanup, Contamination, Illinois, Private Right of Action, RCRA, Remediation

In the recent decision of United States of America v. Boston and Maine Corporation, C.A. No. 13-10087-IT (D. Mass. Sept. 22, 2016), a Massachusetts federal judge ruled that issuance of a ROD was the completion date of a removal action for statute of limitations purposes even though the actual remedial activities had been completed nearly 13 years earlier.  In reaching this conclusion, the Court also examined the often vexing distinction between removal and remedial activities and the question of what constitutes a “facility” under CERCLA. Given the posture of the case, the decision may also serve to underscore the deference courts often afford to the federal government when it, rather than a private party, is seeking to recover costs.    Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, EPA, Remediation, Removal, Statute of Limitations, Superfund

In a case of first impression in the Third Circuit, the Honorable Eduardo C. Robreno has held that the Pennsylvania Department of Environmental Protection (“PADEP”) may not, under CERCLA, recover costs from current landowners if the costs were incurred prior to the owner's purchase of contaminated property.  In PADEP v. Trainer Custom Chemical LLC, No. 15-1232 (E.D. Pa. Aug. 30, 2016), PADEP sought to recover, among other things, over $800,000 in electricity bills which it had paid prior to October, 2012 to keep certain remediation equipment operating at the Stoney Creek Technologies Superfund Site (the “Site”), which Site was subsequently purchased by the defendant, Trainer Custom Chemical, LLC.  PADEP's claim for such costs was rejected by Judge Robreno, who held that “a new owner is not liable for recovery costs incurred before he took ownership of the facility.”  Id. at *21. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Pennsylvania, Pennsylvania Department of Environmental Protection, Real Estate, Remediation, Removal, Superfund, Third Circuit

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