Archive for September, 2010

District Court Dismisses CERCLA Suit as Time Barred

SteveK September 30th, 2010

On September 21, 2010, Judge Freda Wolfson of the U.S. District Court for New Jersey dismissed the claims of the United States against Rohm and Haas due to the limitations periods contained in CERCLA.  The U.S. agreed that the suit was untimely; however, argued that the limitations periods contained in CERCLA should be tolled due to a change in law on whether oversight costs are recoverable, and for other equitable reasons.

The defendants (including predecessors) had disposed of industrial wastes at the site between 1950 and 1965. After site investigation, the site was listed on the NPL in 1984. An ACO was entered into with the NJDEP in 1991 and RI/FS was completed in 1992. Substances were removed from the site  from 1991 through 1995 and the EPA issued a Baseline Risk Assessment finding the site no longer posed a risk to human health or the environment in 1996. A Record of Decision (ROD) was issued in September of 1996. A PRP letter was issued to the defendant in 1997 after which the parties entered into a Consent Order which explicitly excluded any reimbursement of oversight costs, which were defined as “future response costs incurred by EPA in monitoring and supervising [Morton’s] performance …”  The Consent Order did not contain a tolling agreement.  The monitoring of the site was completed in 2001 and the site was taken off of the NPL in 2002. Six years later the EPA wrote to the defendant demanding payment of oversight costs.  Shortly thereafter the parties entered into a tolling agreement from November 2008 to March of 2009.  The complaint was filed in October of 2009. In the complaint, the U.S. sought the recovery of oversight costs, although the government did reserve its rights to seek other costs.

There are two potential limitations periods under CERCLA that could apply to the claims. The first is a 3 year period for commencement of a removal action which starts to run after completion of the removal,  and a 6 year period for a remedial action, which commences with the initiation of physical on-site construction of the remedial action. The Court acknowledged that case law provides that the 3 year period begins to accrue upon issuance of the ROD, which in this case was issued in 1996. The 6 year statute began to run in 1991 when defendant began to remove hazardous substances from the site.  The government, however, argued that it was barred from bringing the action for oversight costs by the Third Circuit’s 1993 decision in U.S. v. Rohm and Haas 2 F.3d 1265 (3rd. Cir. 1993) which was subsequently overturned  by U.S. v. DuPont, 432 F.3d 161 (3rd Cir. 2005). The government argued that its claims could not have accrued as it could not have been brought until the decision in DuPont was issued in December 2005.

The court rejected the government’s argument in part due its statement that costs other than oversight costs might be included. According to the court, that constituted a concession that the claim for the other costs could have been brought as they were not precluded and resurrected by the decision of the 3rd Circuit. The court reasoned, further, that the application of periods for limitations should not be governed by the uncertainties of changing laws.  The court noted that other jurisdictions had rendered decisions contrary to the 1993 Rohm and Haas decision, so that it would have been appropriate to take actions to preserve the claims.

The court then considered whether the claims could proceed under the doctrine of equitable tolling. The court, again, ruled in favor of defendants finding that the government had not acted diligently in pursuing or preserving its claims. The court pointed to such actions as the failure to include a reservation and tolling of the claims for oversight and future costs in the Consent Order, the failure to initiate proceedings with the knowledge of favorable decisions on the ability to recover oversight costs from other jurisdictions, and then waited over three years from the issuance of the DuPont decision to institute its action. As the court stated: “Such behavior does not bespeak of due diligence in preserving one’s claim.”

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contactSteven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department

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Court Rules Reinstatement to Former Position Necessary to Avoid Irreparable Harm

SteveK September 27th, 2010

In Ellis v. Ethicon, a New Jersey Federal District Court Judge ruled on September 21, 2010 that Ethicon was required to reinstate Plaintiff to her position from which she was removed several years earlier. Following a trial in which the jury determined that Ethicon acted in bad faith in failing to provide plaintiff an accommodation for her disability, Judge Freda Wolfson denied defendant’s motion to stay that portion of the Judgment requiring Ethicon to reinstate the plaintiff to an available position in her job category as equitable relief for their discriminatory conduct.  Reinstatement, while an available remedy pursuant to the Americans with Disabilities Act and the New Jersey Law Against Discrimination, must affirmatively demanded by a plaintiff, but is often not granted.  Reinstatement is a remedy that is court ordered rather than decided by the jury.

Plaintiff, Ellis, initiated this action against her employer, Ethicon, for its failure to accommodate her disability in the workplace. After approximately two weeks of trial, the jury found, with respect to Plaintiff’s Americans with Disabilities Act of 1990 (“ADA”) claim, that Plaintiff proved she was substantially limited in cognitive function as of October 2001, and consequently was disabled under the ADA; that Ellis was qualified to perform the integral function of her position as a quality engineer, with or without accommodations; that Ethicon unreasonably failed to provide the accommodations requested by Ellis, or provide any other reasonable accommodations; and that accommodating Ellis in her job would not have been an undue hardship.

In deciding that Reinstatement was warranted,  Judge Wolfson relied on several  Third Circuit decisions dating from 1985 holding that  that reinstatement is the preferred remedy to avoid future lost earnings. Judge Wolfson said:

“It is an obvious form of relief to make the plaintiff whole and to relieve the plaintiff of the effects of discrimination. Ellis v. Ringgold School Dist., 832 F.2d 27, 30 (3d Cir. 1987). Courts recognize that reinstatement may not be feasible in all cases. Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1438-49 (3d Cir. 1985). For example, there may be no position available at the time of judgment or the relationship between the parties may have been so damaged by animosity that reinstatement is impracticable.   In such circumstances, “the remedial purpose of the statute would be thwarted and plaintiff would suffer irreparable harm if front pay were not available as an alternate remedy to reinstatement.”" Judge Wolfson found here that no such circumstances existed.

Judge Wolfson rejected defendant’s argument that they would suffer irreparable harm if plaintiff was reinstated, instead finding that the plaintiff was the one who would suffer the harm. The Judge stated, ” Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a   stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date . . . weighs heavily against a claim of irreparable harm. . . . Recoverable monetary loss may constitute irreparable harm only where the loss threatens the very existence of the movant’s business.  A stay would only serve to continue Plaintiff’s deprivation of the wages and benefits   she would have as an Ethicon employee. Further, Plaintiff’s means are minuscule in comparison to the resources and capital Defendant has at its disposal to fund this litigation – a grant of a stay would only serve to amplify this inequality of the parties. Finally, the grant of a stay would force Ellis to suffer further anguish and economic hardships. This protracted litigation has persisted for many years. Under such circumstances, to further delay Plaintiff from returning to work, to which a jury concluded she was entitled, is manifestly unfair and may in fact rise to the level of a “substantial injury.”

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

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