In an unpublished opinion issued last week, the Appellate Division of the New Jersey Superior Court found that a local ordinance that declares as a nuisance “the escape into the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

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

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

Ten years after purchasing land in Detroit from the Michigan State Transportation Commission, Dietrich Bergmann sued that Commission and the Michigan Department of Transportation (collectively the “Department”) under CERCLA, seeking costs for investigation and remediation of his property.  The parties settled their dispute resulting in the district court’s entering a consent decree in 1991.  The decree obligated the Department to remediate Bergmann’s property in approximately 4 years .  If the Department didn’t in good faith attempt to meet the remediation deadline, then it was required to make liquidated damage payments to Bergmann of $2,000 at the beginning of each month that the remediation was incomplete. Read More »

Share | Email| Comments|  Topics: CERCLA, Consent Decree, Cost Recovery, Enforcement, Equity, Laches, Statute of Limitations