http://www.nj.com/hunterdon-county-democrat/index.ssf/2012/05/editorial_founder_of_the_prom.html

CERCLA

Arranger and Operator Liability:

In Nu-West Mining Inc. v. United States,786 F.Supp 2d 1082 (D.C. Idaho, 2011) the Federal District Court held that the U.S. Government was liable as both an arranger and operator under CERCLA at a site in the Caribou-Targhee National Forest that had been leased to a mining company. The court concluded that the permitting, inspection and oversight functions at four mines were sufficient involvement and control of the operations by the U.S. to impose liability.

The Court reviewed the law on arranger and operator liability.

A party is considered an arranger under CERCLA according to Burlington Northern & Santa Fe Railway Co. v. United States (BNSF), 129 S. Ct. 1870 (2009) when it “takes intentional steps to dispose of a hazardous substance.” Id. at 1879. Mere knowledge that spills would occur did not amount to “intent.” Further, the Court held that the analysis “requires a fact-intensive inquiry that looks beyond the parties’ characterization of the transaction as a ‘disposal’ or ‘sale’ and seeks to discern whether the arrangement was one Congress intended to fall within the scope of CERCLA’s strict-liability provisions.” Id.

For a party to be considered an operator of a facility under CERCLA  it must “manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste,  or decision about compliance with environmental regulations.” United States v. Bestfoods 524 U.S. 51, 66-67 (1998). If a party had the authority to control the cause of the contamination at the time of disposal, and actually exercised that control, then it is considered an operator. Id., citing, Kaiser Aluminum & Chem. Co. v. Catellus Dev. Corp., 976 F. 2d 1338, 1341 (9^th Cir. 1992).

The Government began leasing mineral rights in the National Forest to various mining companies.  In accordance with the leases the Government inspected the mines to monitor the environmental conditions, properly disposing of mining waste, and to confirm royalty payments. The lease also required the lessees to “[prospect] diligently and to meet certain ore production requirements, and to pay a royalty fee.”  The Government also issued Special Use Permits so that rock waste dumps could be constructed on National Forest Lands adjacent to the leased lands. The Government also required the lessees to obtain “approval of plans for mining, waste disposal, and reclamation.”

The mine sites were determined to be contaminated with selenium, a naturally occurring chemical element that is found in a rock layer between phosphate ore zones. The mines were operated from 1960 until the 1990s. When the contamination was discovered in the 1990s, the lessee, Nu-West entered into Administrative Orders with the Government to remediate the sites. Nu-West claims to have spent over $10 million dollars and seeks to recoup those costs. In a motion for partial summary judgment Nu-West argued that the Government was an owner, arranger and operator under CERCLA. The motion did not address or resolve any defense to which the Government may be entitled, or any issue of damages.

The Court found that the Government not only owned the source of the contamination, it also had the authority to control the disposal of mining waste at the dump sites. The Court specifically noted that the lease provided that “no mining waste disposal could occur without its approval.” Further, the Court found that the Government exercised control over the disposal, and “showed its intent that disposal take place” by directing how the dumps should be covered.  The Court rejected the Government’s argument that it was acting in purely in a regulatory capacity, finding that its actions constituted a waiver of its sovereign immunity.” Citing, U.S. v. Shell Co. 294 F. 3d 1045, 1052-54 (9^th Cir. 2002.); 42 U.S.C. §9620(a)(1) Accordingly, the Government was held as an arranger.

The Court also found there to be operator liability because the Government managed design and location of the dumps. In addition, the Government regularly inspected the dumps to ensure compliance with the mining plans and waste disposal guidelines.

In a subsequent motion reported at 2011 U.S. Dist. LEXIS 70854, the Court denied Nu-West’s motion for summary judgment on the Government’s counterclaim, seeking a ruling that the Government would not be entitled to legal fees. The Court was unable to conclude what costs may be “enforcement costs”  which a government may recover, as opposed to “necessary cost of response” which is what a private party may recover.

This case clarifies some of the issues on Governmental liability for actions at CERCLA sites, including that the Government can be liable when it is controlling the operations for its own benefit, not just in the use of its police power or in its sovereign capacity.

Owner Liability

In Los Angeles v. San Pedro Boat Works, 635 F. 3d 440 (9^th Cir. 2011,) the Court held that the holder of a “revocable permit”  for a ship-berth in Los Angeles harbor had a mere possessory interest which did not arise to an ownership interest under CERCLA.

In this case, contamination arose from ship repairing activities that took place in Los Angeles Harbor. Pacific American purchased a revocable permit from the Harbor Commission in 1969 and held the permit for approximately 10 months. San Pedro Boat Works, a wholly owned subsidiary of Pacific American, was assigned the permit from Pacific American in 1970. San Pedro Boat Works was subsequently sold. Pacific American was acquired by BCI-Coca-Cola Bottling Company of Los Angeles in 1993.

Contamination was discovered in 1995 at the berth. The City cleaned up the contamination and commenced suit against San Pedro and Coca-Cola to recover the costs. San Pedro filed for bankruptcy shortly after suit was filed.

In deciding in favor of Coca-Cola, the Court first looked to CERCLA, but concluded that the definition of owner was tautological: an owner is “any person owning a facility.” 42 U.S.C. §9601(20)(A)(ii). The Court elected to rely upon the common law of the jurisdiction which distinguished title ownership from possessory interest.  It concluded that the “holder of a permit for a specific use of real property is not the owner of that real property.”  The Court, therefore, concluded that the permit holder was not the owner under CERCLA.  The Court rejected the test applied by the Second Circuit in Commander Oil Corp. v Barlo Equip, Co. 215 F. 3d 321 (2nd Cir. 2000) for de facto ownership: 1) whether the lease is for an extensive term and admits of no rights in the owner/lessor to determine how the property is used; 2) whether the lease cannot be terminated by the owner before it expires; 3) whether the leasee has the right to sublet all or some of the property without notifying the owner; 4) whether the lessee is responsible for payment of all taxes, assessments, insurance an operation and maintenance costs; and 5) whether the lessee is responsible for making all structural repairs. Id. at 330-331.

As a result there is a conflict as to what test is to be applied in the analysis of what constitutes an owner where the concepts of control over the operations and activities are at issue. The Ninth Circuit has focused on the common law, and has held this way both for the holder of an easement, see, Long Beach Unified School Distric v. Dorothy B. Godwin Cal. Living Trust, 32 F 2d 1364 (9^th Cir. 1994), and now for a permit. Although the 2^nd Circuit test was determined to create a “nebulous and flexible analytic framework” by the 9^th Circuit, the Circuits are split on what test is to be applied.  It is unclear how the actual results would vary.

Arranger Liability

In Team Enterprises LLC v. Western Investment Real Estate Trust 2011 U.S.  App LEXIS 19881, the 9^th Circuit concluded that the manufacturer of a dry cleaning machine was not liable for contribution to environmental cleanup costs under CERCLA.  Thea Plaintiff, a dry cleaner, used dry cleaning equipment manufactured by R.R. Street & Co. (Street) for their operations. The PCE-laden residue from the operations was deposited into a bucket for reuse; however, some was poured down the drain and leaked into the soil.

The Court analyzed whether a party can be considered an arranger under CERCLA where the equipment was sold for legitimate business purposes and was not created with the intent and purpose of disposing of hazardous waste. The Court took into account the requirement under BNSF that a party “must take intentional steps to dispose of a hazardous substance” to be considered an arranger. Supra, 129 S. Ct at 1879.

The Court also rejected the argument that Street had “exercised control over the disposal process” by designing the equipment that required the dry cleaner to dispose of the wastewater into the sewer.  The Court concluded that the instructions that suggested that the waste be poured into a bucket (which, according to the Plaintiffs, left no alternative but for the operator to pour that waste into the drain) did not present anything more than a suggestion or “recommendation;” there was no directive or other manner of control. Even the argument that Street knew that was how dry cleaners handled the residual waste was unavailing.  The Court affirmed the decision from the lower court that the facts do not support the requisite intent to dispose of waste as set forth by the Supreme Court in BNSF.

Arranger and Divisibility

The Lower Fox River cleanup litigation continues to provide interesting issues and analysis of a variety of issues under CERCLA.  There were a number of decisions in the case in 2011, the most significant one being Appleton Papers, Inc. et. al. v. George Whiting Paper Co., 776 F. Supp 2d 857 (E.D. Wis. 2011).

The Court had previously held that the Plaintiffs were not entitled to contribution for the expenses they had and will incur for cleanup costs “because they knowingly took that risk that the product that they mobilized [PCBs] would have long-lasting environmental consequences.” Id. at 859. Defendants sought to have the Court require that Appleton reimburse them for the costs they have incurred for their investigation and remediation at the site.  The Court conducted a thorough analysis and crafted a decision that placed most of the responsibility on the Plaintiff, except with regard to Operable Unit -1 (OU-1) which was upstream.

First, the Court addressed arguments that the Plaintiff should be liable as a successor to an arranger for the disposal of pollutants in OU-1. The predecessor, Appleton Coated Paper Company (ACPC) made carbon paper which utilized PCBs. ACPC sold waste from their processes through a broker that was used by other companies for making paper. The waste paper (known as “broke”) was recycled by the acquiring companies which resulted in PCBs being discharged into the Fox River Site.  Defendants argue that in this manner, ACPC arranged to dispose of a hazardous substance, thus making them liable for contamination at OU-1, even though their own discharges did not wind up in OU-1.  The Court conducted a thorough analysis of arranger liability under BNSF and concluded that although they did “enter into a transaction for the sole purpose of discarding a used and no longer useful hazardous substance;” however, there was insufficient evidence to support the conclusion that ACPC had the intent to dispose of the waste along with “the particular knowledge that non-trivial amounts of the broke waste product would inevitably end up in the river.” Id. at 864. The Court concluded that there were questions of fact, but indicated that it was unlikely that there would be sufficient evidence to support such a claim.

The Court also rejected that argument that all the operable units at the site were intertwined, and thus, Plaintiff could not obtain contribution from the Defendants (and therefore they were entitled to reimbursement) for costs for OU-1. The Court, however, confirmed a prior ruling that the costs for OU-2 through 5 fall squarely and completely on the Plaintiffs on the basis of fault, and that fault was such an overriding factor that is outweighed by any basis to impose equitable shares on the Defendants.  The Court then went on the wrestle with particular costs, including deciding that the costs that have been incurred were not outside the statutory limitations periods.

Subsequent Work Causing Release

In Saline River Properties LLC v. Johnson Controls, 2011 U.S. Dist. LEXIS 119516 the U.S. District Court for the Eastern District of Michigan, addressed whether a developer could be liable under CERCLA for conducting  development activities that may have moved contamination on the site and required additional cleanup.  Johnson Controls had owned property that it was remediating under a state issued administrative order.  Plaintiff became the operator of the property and at some point destroyed the building slab which Johnson alleges resulted in the migration of contaminants that would not have otherwise occurred.  The Court concluded that although passive migration would not have resulted in liability, there were questions of fact as to whether this action caused a release.

Citizens’ Suits

In Pakootas v. Teck Cominco (Pakootas II), 2011 U.S. App. LEXIS 10931 the 9^th Circuit ruled that environmental groups, Indian tribes and other non-EPA parties may not bring a citizens’ suit to enforce the penalty provisions of CERCLA.

Pakootas II is part of the continuing dispute concerning the pollution of the Columbia River. The pollution originated from mining operations in British Columbia. Teck Cominco Metals, a Canadian mining company operated a smelter north of the U.S. –Canadian border which generated and disposed of slag into the Columbia River. Negotiations between the EPA and Teck Cominco American, Inc. faltered on issues of Canadian sovereignty and jurisdiction. The EPA eventually issued a unilateral administrative order (Order) directing Teck to investigate the nature and extent of contamination in the Upper Columbia River basin, and to evaluate remedial options.  Teck did not comply and the EPA took no enforcement actions, nor did it seek penalties.

Plaintiffs, later joined by the Confederated Tribes of the Colville Reservation and the State of Washington, pursued a citizens’ suit seeking:  (1) a declaration that Teck had violated the Order; (2) injunctive relief compelling Teck to comply with the Order; (3) penalties for non-compliance with the Order;  and(4) attorney fees and costs.

After Teck’s motion to dismiss the case based upon the argument that EPA could not apply CERCLA extra-territorially was denied, Teck and the EPA entered into a “contractual agreement” to address the contamination at the site.  As part of the agreement, the EPA agreed to a covenant not to sue Teck for penalties or injunctive relief relating to non-compliance with the Order, subject to its satisfactory performance of its obligations under the agreement.

Plaintiffs amended their complaint and dismissed the claims for injunctive and declaratory relief, but continued to assert the claims for penalties for non-compliance with the Order. The 9^th Circuit affirmed the dismissal of the suit concluding that the penalty provisions are a “hammer” to be wielded exclusively by the EPA to compel compliance. Further, the Court aptly noted that if Teck were compelled to pay the penalties to Plaintiffs prior to the agreed upon remediation,” it might find it economically advantageous to walk away from the further cleanup efforts…” which would have a perverse result, and would not further the intent to compel site remediation.

Section 113 & Private Nuisance Claims

On August 13, 2011, the Federal District Court for the District of New Jersey continued to clarify the limits of Section 113 claims under CERCLA and  also addressed common law claims of a subsequent property owner in Queens West Development Corporation v. Honeywell International, Inc. 2011 U.S. Dist. LEXIS 91795. Plaintiff acquired property formerly operated by Warren Chemical Works, which was subsequently acquired by Honeywell. The property was contaminated from discharges of substantial amounts of creosote, coal tar, and related substances. The property was to be redeveloped by plaintiff for residential, commercial and recreational uses. Plaintiff claimed to have incurred over $16 million in investigation and remediation costs, and anticipated total response costs that would be equal to or exceed $20 million. Defendant moved for dismissal of various counts of the complaint including claims in Count Two of the Complaint, under Section 113 of CERCLA, claims in Count Three for common law private nuisance, and claims in Count Four for restitution.  In deciding the case, the Court addressed the intersection between claims under Section 107 of CERCLA and Section 113. The Court noted that the case presented a unique issue: “whether a party that voluntarily undertakes a cleanup action can maintain a claim for contribution under § 113(f)(3)(B), when it has simultaneously asserted a claim for cost recovery under § 107(a).” The Court noted that courts have explained that Section 107 “authorizes the United States, a state, or `any other person’ to seek reimbursement for all removal or remedial costs associated with the hazardous materials on the property, provided that those actions are consistent with the National Contingency Plan,” and that the United States Supreme Court held in Atlantic Research that the “plain language” of § 107 “authorizes cost-recovery action by any private party, including PRPs.” As a result, a private party is not required to establish its own liability in order to assert a claim under  Section 107. Section 113(f)(3)(B), however, allows the assertion of a right of contribution only “to PRPs that have settled their CERCLA liability with a [S]tate or the United States through either an administrative or judicially approved settlement.” Since Plaintiff had voluntarily incurred the response costs, is not a PRP, and did not enter into an approved settlement or resolved all their liability to the U.S. or the State of New York, they could not maintain the  Section 113 claim. Thus, the Court dismissed the  Section 113 claim contained in the Second Count.

The Court next addressed the claims for private nuisance. As the proceeding was in New Jersey, but involved New York property, the Court considered the law of private nuisance in both jurisdictions. The Court concluded that the law was the same, and that although a private nuisance “consists of an interference with one’s interest in the private use and enjoyment of land” it only applies to interference with use of adjoining land, not to subsequent owners of the same property.

Finally, the Court refused to dismiss the restitution claim. Defendants argued that it should be dismissed since it is preempted by CERCLA. The Court refused to dismiss the claim, however, since it remained an alternative common law claim that would survive if the Plaintiff fails to prove the claim under Section 107 of CERCLA.

Case to Watch: Sackett

Sackett v. EPA is a case that is scheduled for argument before the U.S. Supreme Court this term. Although it is not a CERCLA case, it may have a significant impact on enforcement of federal environmental statutes.  The primary issue presented by Sackett is whether pre-enforcement review is available for EPA administrative orders. Pre-enforcement review refers to the ability of the recipient of such an order to obtain judicial review of the order without having to wait to be sued by the EPA. This is not applicable to CERCLA since CERCLA has an express provision prohibiting pre-enforcement review. 42 U.S.C. §9613(h).

The Court will consider whether a bar to pre-enforcement review can be implied into the Clean Water Act (CWA), as has been argued by the EPA, and whether such an implied ban would violate the due process clause of the U.S. Constitution.

In Sackett the plaintiffs had filled a wetland area on their 0.63 acre parcel without a CWA permit. The EPA issued an administrative compliance order requiring that the fill be removed and that the wetland be restored.  The Sacketts petitioned the EPA for a hearing to challenge the wetland determination. After the EPA refused, the Sacketts filed suit.  The District Court dismissed the suit and the Sacketts appealed to the 9^th Circuit.  Before the 9^th Circuit they argued (1) that the Administrative Procedures Act (APA) allows pre-enforcement review of CWA compliance orders; and (2) that pre-enforcement review is required by due process.

The Circuit Court rejected both arguments. It rejected the argument under the APA essentially finding that pre-enforcement review is not provided for in the CWA and that the presumption in favor of judicial review is overcome where “congressional intent to preclude judicial review is fairly discernible in the statutory scheme.” Sackett v. EPA 622 F. 3d 1139,1143 (9^th Cir, 2010). The Court concluded that pre-enforcement review would frustrate the goal of addressing environmental problems quickly and would negate the EPA’s statutorily created choice between filing a suit or acting unilaterally through an administrative order.

The 9^th Circuit rejected the due process arguments finding that it had been satisfied because: (1) judicial review was available once the EPA brings an enforcement action; (2) the Sacketts could have sought to obtain a §404 permit to fill the property, which would be reviewable by the district court if denied; and (3) the court, not the EPA, can impose penalties under the CWA based upon a range of factors. [1] The decision could have far reaching implications, even effecting CERCLA if the Supreme Court reverses on the basis of due process. [2]

NEW JERSEY SPILL ACT

Primary Jurisdiction

In Magic Petroleum, Inc. v. Exxon Mobil, 2011 N.J. Super. Unpub. LEXIS 2021, the New Jersey Appellate Division dismissed, without prejudice, Magic’s claim for contribution of remedial costs against Exxon due to NJDEP’s primary jurisdiction of the remedial investigation at the plaintiff’s property. Plaintiff had been the subject of an administrative consent order (ACO) to investigate and remediate contamination at its property resulting from leaking underground storage tanks.  Plaintiff contended that the majority of the contamination came from the neighboring Exxon station and refused to comply with its obligations under the ACO until the NJDEP required Exxon to participate in the investigation. Magic litigated its obligations under the ACO through administrative proceedings, and was required to follow the order. Magic, however,  continued to refuse to conduct the investigation, insisting that the investigation should be imposed upon and shared by Exxon. The NJDEP eventually took over the investigation of the plaintiff’s property. Magic then commenced a contribution action against Exxon.

Exxon filed a motion to stay or dismiss the proceedings, without prejudice, pending the NJDEP’s investigation and remediation of the Magic property, arguing that the NJDEP’s efforts must precede any decision by the court. The trial judge dismissed the case, deferring to the NJDEP’s primary jurisdiction. The Appellate Division affirmed.  The Appellate Court noted that under the doctrine of “primary jurisdiction” a court may defer to an agency where the resolution of an issue is within the special competence of the agency. The court further noted that private contribution rights under the Spill Act require the court to allocate responsibility for remediation costs, but that the initial determination of whether a party is responsible can be decided by the NJDEP, and that “only the DEP can define the contaminants, determine the extent of the discharge, identify the authorized forms of investigative testing, and permissive methodology of cleanup.” Furthermore, “to be entitled to reimbursement and contribution under the Spill Act, a party must obtain written approval under from the DEP of the investigation and proposed remedial action.”  Accordingly, the court concluded that these decisions were within the scope of the special expertise of the DEP and should be determined prior to the case being able to proceed.

This decision demonstrates that a responsible party under the Spill Act that does not conduct investigation and remediation, but allows it to be done by the State, does so at its peril. To do so may have a significant impact in the party’s ability to pursue a contribution claim against other responsible parties, as it allows the NJDEP to determine and define the scope of the investigation, remediation, and possibly to potentially influence any future contribution claim or allocation. It is interesting to consider the effect of the Site Remediation Reform Act (SRRA) on the statements by the court that the DEP will define the contaminants, the extent of the discharge, the forms of investigation and the method of cleanup. Under the SRRA these determinations can be made by a Licensed Site Remediation Professional (LSRP), in accordance with the regulations for site investigation and remediation, referred to the Tech. Regs.  Accordingly, it may not be that the DEP has to make these decisions. This points, again, to the importance of the party seeking contribution to address and control the response in order to be able to develop the information, and assert and control the contribution claim.

Nexus

In NJDEP v. Ofra Dimant, et.al 418 N.J. Super 530 (App. Div. 2011), cert. granted, 208 N.J. 381 (2011), the New Jersey Appellate Division recently confirmed that liability under the Spill Act, requires a connection between the discharge of a contaminant and the contamination of the environment of that contaminant that was caused by the discharge. In that case, the defendants included succession of owners and operators of a dry cleaning establishment. The contamination in the groundwater included the well-known dry cleaning chemical, PCE, as well as the byproducts of its degradation: TCE and DCE.  There was evidence that the PCE was related to the dry cleaning operations. All but one of the direct defendants settled with the State.  The remaining defendant went to trial. The trial judge found that although there were discharges or releases of PCE during the stewardship of the remaining defendant, there was no proof that those discharges went through the asphalt and contaminated the environment.  Since there was no nexus between the discharge and the remediation, the claims against the defendant were dismissed. The State also sought leave to amend the complaint to add certain other prior operators. The denial of that motion by the trial judge was affirmed as being made too late in the case; in fact, it was made near the end of the trial.  This case affirms the need for the State or any plaintiff in a Spill Act case to demonstrate a nexus; and further reaffirms that there is no liability for passive migration of contaminants during the ownership of property.

NRD Common Law Claims – Limitations of Actions

In New Jersey Dep’t of Env. Protection v. Exxon Mobil Corp, 405 N.J. Super 395 (App. Div. 2011) the court held that the State’s common law strict liability claims for NRDs were not barred by the general ten-year statute of limitations applicable to actions commenced by the State. N.J.S.A. 2A:14-1.2. The court, reversing the trial court, held that an exception to the ten-year statute, specific to environmental laws, known as the Extension Statute, N.J.S.A. 58:10B-17.1, applies not only to statutory environmental laws, but also to common law causes of action implementing environmental programs.
The Extension Statute provides:

b. (1) Except where a limitations provision expressly and specifically applies to actions commenced by the State or where a longer limitations period would otherwise apply, and subject to any statutory provisions or common law rules extending limitations periods, any civil action concerning the payment of compensation for damage to, or loss of, natural resources due to the discharge of a hazardous substance, commenced by the State pursuant to the State’s environmental laws, shall be commenced within five years and six months next after the cause of action shall have accrued.

Exxon argued that the Extension Statute’s use of the term “environmental laws” after a listing of 9 prior statutes,  limited the extension to statutory causes of action. The Appellate Division, however, looked to legislative history and concluded that the legislature intended to expand the scope of the authority of the DEP, not to limit it. As a result, NJDEP has the ability to pursue common law causes of action, along with the strict liability provision of Spill Act, in matters involving NRDs; neither of which will be constrained by the general ten-year statute. This decision may be important as common law remedies and damages may be broader and may permit the State to seek to present their case before a jury as there is some question whether there is a right to a jury trial under the Spill Act.

In a separate decision, the Appellate Court also ruled on the State’s claim for an interlocutory payment by Exxon Mobil for natural resource damage assessment costs of approximately $1 million.  The costs represent the invoices of five experts that prepared reports for DEP regarding the claimed natural resource damages under the Spill Act. The Court affirmed the trial court’s denial of the interim payment since there is a significant dispute as to the reasonableness of the costs and whether they are duplicative of defendant’s efforts. The panel concluded that the award of such costs is best reserved until resolution of the factual issues at trial.

NRD : Use of Resource Equivalency Analsyis (REA)

In  NJDEP v. Union Carbide, (Middlesex County, MID-L-5632-07, March 29, 2011) the trial Court rejected for the second time the State’s effort to employ a resource equivalency analysis (REA) or habitat equivalency analysis (HEA) to place a value on the loss of use of groundwater as a natural resource. The trial court had previously rejected REA in NJDEP v. Essex Chemical, (Middlesex County, Docket No.: MID-L-5685-07, July, 2010). The trial court concluded that the expert had not conducted a proper analysis of the particular services that were claimed to have been lost by the public due to the contamination, other than the remedial costs which were being conducted by the defendant. The court also ruled that there was no basis to compel the defendants to cleanup more expeditiously since the entire remedial endeavor had been with the approval and oversight of the NDJEP, albeit a different arm than the Office of Natural Resources and Recovery (ONRR). Finally, the court rejected the State’s nuisance claim since the plaintiff’s had not satisfied their burden of showing that the contamination of the groundwater interfered with the public’s use or enjoyment of the resource, further noting that the groundwater in question was never available to the public since it was below private property; therefore. “Plaintiffs have not shown how the public has been deprived of anything.” [Slip. Op. p. 13]

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, 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.

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

Issue #1-2012

January 5, 2012

Todd B. Ruback, Esq., CIPP/US, CIPP/IT

This issue of the Privacy Case of the Week Newsletter features a precedential case in the Third Circuit, Reilly v. Ceridian Corporation, No. 11-1738 (3^rd Cir., December 12, 2011), a class action data breach case,in which the 3rd Circuit Court of Appeals affirmed an order of US District Court for the District of New Jersey granting the Defendant’s motion to dismiss for lack of standing and failure to state a claim. In following the growing trend among numerous Federal courts, the Court of Appeals held that the Appellants lacked standing and did not reach the merits of a substantive issue. (For some such cases see, Amburgy v. Express Scripts, Inc., 671 F. Supp. 2d 1046, 1051-1053(E.D. Mo. 2009), Key v. DSW, Inc., 454 F. Supp 2d 684, 690 (S.D. Ohio 2006)). 

Ceridian is a payroll processing company based in Minnesota.  They collect personal information about employees of their customers in order to issue payroll checks and withhold taxes.  The Appellants were employees of a law firm, which was a customer of Ceridian.  In 2009 Ceridian suffered a security breach when an unknown computer hacker gained access to the Appellants’ personal information, as well as the personal information of approximately 27,000 other employees of Ceridian customers.  Ceridian performed an investigation of the security breach and as a result sent notification letters to the individuals whose personal information may have been accessed. In 2010 the Appellants filed a lawsuit against Ceridian in the US District Court for the District of New Jersey alleging that they had an increased risk of identity theft, had incurred costs to monitor their credit activity and had suffered emotional distress.   Ceridian soon after filed a motion to dismiss for lack of standing and failure to state a claim. The District Court granted the motion to dismiss, holding that the Appellants lacked Article III standing under the US Constitution, and further held that even if the Appellants had standing, they nonetheless failed to adequately allege the damages, injury and ascertainable loss elements to their claim.  Appellants appealed.

The Court of Appeals, in agreeing with the District Court, held that allegations of hypothetical, possible future injury did not establish standing (injury-in-fact) under Article III of the US Constitution.  As part of its analysis the Court of Appeals stated that ‘Constitutional standing requires an “injury-in-fact, which is an invasion of a legally protected interested that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Danvers Motor Co. v. Ford Motor Co., 432 F.3^rd 286, 290-291 (3^rd Cir. 2005) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).’  The Court of Appeals further stated that the “Appellants’ contentions rely on speculation that the hacker: (1) read, copied, and understood their personal information; (2) intends to commit future criminal acts by misusing the information; and(3) is able to use such information to the detriment of Appellants by making unauthorized transactions in Appellants’ names. Unless and until these conjectures come true, Appellants have not suffered any injury; there has been no misuse of the information, and thus no harm.”

Appellants, in trying to convince the court to go against the growing trend of dismissal for lack of standing in class action breach litigation, relied principally on Piscotta v. Old National Bancorp, 499 F.3^rd 629 (7^th Cir. 2007) and Krottner v. Starbucks Corp., 628 F. 3^rd 1139 (9^th Cir. 2010), whereby those courts conferred standing.  Here, however, the Court of Appeals found those cases had little persuasive value. 

In both Pisciotta and Krottner the threatened harms were significantly more imminent and certainly impending.  In distinguishing those two cases from Ceridian the Court of Appeals stated that ‘In Pisciotta there was evidence that “the [hacker’s] intrusion was sophisticated, intentional and malicious.             499 F. 3rd at 632. In Krottner, someone attempted to open a bank account with a plaintiff’s information following the physical theft of the laptop. See 628 F.3^rd at 1142.  Here, there is no evidence that the intrusion was intentional or malicious.  Appellants have alleged no misuse, and therefore, no injury.  Indeed, no identifiable taking occurred; all that is known is that a firewall was penetrated.  Appellants’ string of hypothetical injuries do not meet the requirement of an “actual or imminent” injury.” ‘

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 privacy matters.  For additional information about the matters in this bulletin or in the firm’s Privacy and Technology Law Group, please contact Todd B. Ruback, Esq., CIPP, CIPP/IT.

Todd B. Ruback, Esq., CIPP, CIPP/IT is chair of the Privacy and Technology Law Group at the law firm of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, P.C. He is also chairman of the Privacy Special Committee of the New Jersey State Bar Association.  He represents insurance carriers as a data breach attorney, providing incident response services and defense litigation. He also performs privacy audits to determine the gaps and maturity of a company’s privacy processes, as well as implements privacy best practices.  He can be reached at 908-757-7800 x196 or by email at truback@newjerseylaw.net.

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, 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 real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, 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 real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

This is a special honor for Jeff and for this law firm.

Issue 2

November 7, 2011

By Todd B. Ruback, Esq., CIPP, CIPP/IT

This issue is not about a privacy case, but rather is an update on the California and Texas data breach notification laws. 

California

The amended state data breach notification law, S.B. 24, goes into effect on January 1, 2012 and mandates that businesses and state agencies that are required to provide notice to state residents because of incurred data breaches must, in addition to their other obligations, also do the following:

1. Notify the California Attorney General if notification for any one breach is greater than 500 state residents
2. Notices must be specific and include:

-          Type of information breached

-          Time of the breach

-          Toll free number of the major Credit Reporting Agencies

       3.  If breaches are greater than 500,000 state residents or will cost more than $250,000 to send notices, then in addition to posting notice of the breach on their website and in major statewide media, such as newspapers, the business must notify the California Office of Privacy Protection (State agencies must notify the California Office of Information Security).

Additionally, Covered Entities under HIPAA are deemed to be compliant with the S.B. 24 if they are in compliance with the data breach notification requirements under HIPAA.

Texas

Texas recently expanded the breadth and reach of its state data breach notification law through the passage of H.B. 300.  Under the amended law residents of states which do not presently have a state data breach notification law (Alabama, Kentucky, New Mexico and South Dakota) must be notified of a data breach incurred by a business that conducts business in Texas.  Unfortunately the law does not define “conducts business in Texas”.  The law provides for penalties to the company for non-compliance of its obligation to notify non-Texas residents who are not covered by another state’s data breach notification law.  For non-Texas residents whose states do have a state data breach notification law, H.B. 300 provides that they too must receive notice.  However, if a business complies with the respective state’s data breach notification law, then it is deemed to have complied with H.B. 300.

The amended law adds penalties for non-compliance.  Under the old law the state could impose fines of up to $50,000 for each violation of the state data breach notification statute. In addition to this potential penalty, H.B. 300 provides for statutory penalties of up to $100 per individual per day for failure to provide notice, not to exceed $250,000 for a single breach. Additionally, the state Attorney General may also recover its reasonable expenses for enforcement actions.  The maximum penalty for any one data breach in Texas under H.B. 300 is now $300,000 plus expenses.

Texas also modified its definition of sensitive personal information to include not only name plus social security number, government issued identification card number or financial account number, but also personally identifying information such as the physical or mental health condition, or the health care that was given to a person, or information about the payment about such health care.

H.B. 300 also amends the state’s Health and Safety Code to impose privacy and security requirements that are stricter than HIPAA’s requirements. These more stringent privacy and security requirements on health care extend to entities that are neither “Covered Entities” or Business Associates” under the HIPAA definitions.   Under H.B. 300 a “Covered Entity” is any entity that handles Protected Health Information (as defined by HIPAA). For these entities they must now implement training programs and provide notices to consumers about electronic disclosures that the Covered Entity makes.  In essence, the amended law in Texas imposes new privacy compliance obligations on business that were previously not under the auspices of HIPAA at all.

Penalties for healthcare violations under H.B. 300 range between $5000 per negligent violation to $25,000 for knowing or intentional violations, to $250,000 per violation in which the covered entity knowingly or intentionally uses PHI for financial gain.  There is an annual cap on liability of $250,000, but for repeat offenders where there is a pattern of violations, a court may impose a penalty of up to $1,500,000 annually.

Conclusion:

In a situation of a breach to a company conducting business in Texas where only residents of Alabama, Kentucky, New Mexico or South Dakota are affected, the long arm of Texas may impose penalties and fines for non-compliance with the amended Texas data breach notification law. Penalties and fines are increased to the higher end of the national scale.  Further, any company conducting business in Texas that handles PHI under the expanded concept should actively review its processes to identify any risks and vulnerabilities, so it may impose controls to mitigate such risk.

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 privacy matters.  For additional information about the matters in this bulletin or in the firm’s Privacy and Technology Law Group, please contact Todd B. Ruback, Esq., CIPP, CIPP/IT.

Todd B. Ruback, Esq., CIPP, CIPP/IT is chair of the Privacy and Technology Law Group at the law firm of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, P.C. He is also chairman of the Privacy Special Committee of the New Jersey State Bar Association.  He represents insurance carriers as a data breach attorney, providing incident response services and defense litigation. He also performs privacy audits to determine the gaps and maturity of a company’s privacy processes, as well as implements privacy best practices.  He can be reached at 908-757-7800 x196 or by email at truback@newjerseylaw.net.

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

Issue 1

This issue of the Privacy Case of the Week Newsletter features Anderson v. Hannaford Bros., Co., No. 10-2384 and No. 10-2450 (1^st Cir. Oct. 20, 2011).  In this data breach class action law suit the Appellate Court in Maine focused on a narrow set of facts in determining that the plaintiffs had legally recognized damages and thus could survive a Motion to Dismiss.  In Hannaford the defendant was targeted in 2007 by hackers who penetrated the defendant’s computer network for the express purpose of stealing credit/debit card information and ultimately did steal 4.2 million credit/debit card numbers. The trial court dismissed the plaintiffs’ causes of action for negligence and breach of an implied contract, stating that under Maine law damages for the cost and effort associated with mitigation against identity theft were too remote to be foreseeable by the defendant. The Appellate Court took up the case upon the narrow issue of whether the plaintiffs, who had not suffered fraud losses, but had incurred costs and expended efforts to protect their identity and mitigate losses, had damages that were reasonably foreseeable.

 Under Maine law a plaintiff may recover damages under negligence and contract claims for reasonable out-of-pocket mitigation costs and expenses.  The Appellate Court held that because this particular breach targeted credit/debit card information, it was reasonable for the affected consumers to spend money to protect their identities by purchasing credit insurance and also having new credit/debit cards issued. In its holding the Appellate Court distinguished between the targeted hacking of a network with the purpose of stealing credit/debit card information and other types of data breaches such as the inadvertent loss of laptops, in which the loss of the equipment is not linked to a deliberate attempt to commit credit card fraud.  Although other credit card based breach litigation have generally resulted in dismissal at the trial court level, the Appellate Court distinguished Hannaford from those cases because in Hannaford approximately 1800 of the 4.2 million credit/debit cards stolen, or 0.00042%, actually suffered some degree of identity theft or misuse.  Thus, the defendant had notice and was aware that the identity theft or misuse had occurred.

Although the Hannaford holding is contrary to the general trend in data breach litigation, the particular set of facts in this case is so narrow that one should not infer a swing in the data breach litigation pendulum. However, insurance carriers and their insureds would be wise to shift their approach in underwriting by keeping in mind that there is now precedence in distinguishing between breaches that target credit/debit card information and inadvertent data breaches.

Todd B. Ruback is head of the Privacy and Technology Law Group at DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, P.C. ( www.dbnjlaw.com ). He is also chairman on the Privacy Committee of the New Jersey State Bar Association.  He can be reached at truback@newjerseylaw.net or by phone at 908-757-7800 x196. His practice focuses on data breach incident response, litigation defense, and data breach prevention.

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 privacy matters.  For additional information about the matters in this bulletin or in the firm’s Privacy and Technology Law Group, please contact Todd B. Ruback, Esq., CIPP, CIPP/IT.

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

In 2007, the notification requirements under the Act were changed, which resulted in the application of such requirements to a wider array of real estate transactions and, thus, a lot of uncertainty as to what was covered and required of real estate attorneys and other professionals.  Basically, under the 2007 law, the notification requirements applied to all transactions in which there was a sale, in bulk, of all or any part of a person’s business assets, except in the ordinary course of business.

For purposes of the 2007 law, “business” meant any endeavor from which revenue is realized for the purposes of generating a profit or a loss, and “business assets” included realty if the primary use of the realty is to support a business on its premises.  On its face, without any other clarification, the 2007 law had to be presumed to include any real estate transaction where the purpose of the real property was to support a business of any type from which a profit or loss could be obtained and for which the sale is not in the ordinary course of business.  This would likely encompass sales by single purpose entities where the sole asset is the subject property and the sole business is the leasing, operation or management of that property.  However, it could also be deemed to include any   other real estate transactions such as seasonal rentals, vacation homes, and timeshares.

Consequently, other than the sales of single family residences by the owners thereof, it was unclear whether or not sellers of real estate in New Jersey had to comply with the notification requirements under the Bulk Sales Act.  The uncertainty was risky, too, because the failure by the purchaser to file the requisite notices with the Division of Taxation meant that the purchaser was deemed, by statute, to have personally assumed all liability for the payment of the seller’s outstanding tax obligations to the State of New Jersey.

A recent amendment now resolves that uncertainty.  According to the revised  legislation, the Bulk Sales Act does not apply to the sale, transfer or assignment of a simple dwelling house if the seller, transferor or assignor is an individual, estate or trust, but it does still apply if the seller, transferor or assignor is a business entity, including a corporation or a partnership.  A “simple dwelling house” means a dwelling unit, attached or detached, and the land appurtenant thereto, including but not limited to (1) a one-family or two-family building or structure, (2) a cooperative unit, (3) a condominium unit, and (4) a unit in a horizontal property regime, but it does not include a structure containing more than two units of dwelling space or containing commercial property including, or in addition to, the units of dwelling space.

In addition, the Act does not apply to the sale, transfer or assignment of a seasonal rental unit or the sale, transfer or assignment of a lease for the seasonal use or rental of real property if the seller, transferor or assignor is an individual, estate or trust, but it does still apply if the seller, transferor or assignor is a business entity, including a corporation or a partnership.  A “seasonal rental unit” means a timeshare estate and a dwelling unit that is rented for a term of not more than 125 consecutive days for residential purposes by a person having a permanent residence elsewhere.  A “lease for the seasonal use or rental of real property” means a timeshare use and the use or rental for a term of not more than 125 consecutive days for residential purposes by a person having a permanent place of residence elsewhere.

In short, limited liability companies and other similar entities are still subject to the bulk sales notice requirements, as are all owners of multiple (more than two) dwelling properties and properties containing commercial units.  However, individuals, trusts and estates are not subject to the bulk sales requirements, if the property in question is a single-family of two-family residence, a coop or condo unit, a timeshare, or a seasonal rental unit.

Although this amendment clarifies the applicability of the Bulk Sales Act to certain real estate transactions, it remains important to review any sale of this nature with your counsel.

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 real estate transactions. For additional information about the matters in this bulletin or in the firm’s real estate group, please contact Richard Ahsler, Esq.

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.