In a unanimous decision of a three judge panel last week, the Second Circuit decided that it lacked jurisdiction to overturn a S.D.N.Y. judge’s order enforcing the terms of the Tronox bankruptcy settlement against a group of more than 4,000 Pennsylvania state court plaintiffs. Tronox, Inc. v. Kerr-McGee Corp., No. 16-343, 2017 U.S. App. LEXIS 6949 (2d Cir. Apr. 20, 2017).  Both the district court’s decision and the Second Circuit’s decision protected Kerr-McGee, bankrupt Tronox’s corporate parent, from a Pennsylvania toxic tort suit related to contamination surrounding a wood treatment plant in Avoca, Pennsylvania. Read More »

Share | Email| Comments|  Topics: Bankruptcy, Class Actions, Contamination, Federal Procedure, New York, Pennsylvania, Procedure, Residential, Second Circuit, Subject Matter Jurisdiction, Toxic Torts

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

Earlier this month, New Jersey’s Appellate Division affirmed a judgment issued by the Chancery Division, the state’s court of equity, which required neighbors to participate and share in the costs of investigating nearby contamination even though there was not yet any evidence as to the precise source of the contamination. Matejek v. Watson et al., Dkt. No. A-4683-14T1 (N.J. Super. Ct. Mar. 3, 2017).  In doing so, the Appellate Division adopted an expansive view of the Chancery Division’s power to fashion an equitable remedy when the letter of the law, in this case New Jersey’s Spill Compensation and Control Act (Spill Act), does not provide for one. Read More »

Share | Email| Comments|  Topics: Contamination, Contribution, Declaratory Relief, Equity, New Jersey, Real Estate, Spill Act, Storage Tank

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

The Clean Water Act (“CWA”) generally forbids discharging contaminated effluent into waters of the United States unless the discharger holds a National Pollution Discharge Elimination System (“NPDES”) permit. Once a discharger holds a permit, they are shielded from discharge related liability- unless, as the Fourth Circuit observed in the recent case of Ohio Valley Environmental Coalition v. Fola Coal Company, LLC, No. 161024 (4th Cir., 1/04/2017), the permit holder is noncompliant. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Contamination, Fourth Circuit, NPDES, Permits, 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

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

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