DB NJ Law Blog | New Jersey Lawyer & Attorney : New Jersey Law Blog » Pollution

NJ Federal District Court dismisses CERCLA Section 113 and private nuisance claim by subsequent property owner that conducted voluntary cleanup.

SteveK — Fri, 02 Sep 2011 02:02:19 +0000

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. 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 ‘ 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.

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.

Steven Kunzman to Co-Chair Seminar on Groundwater Contamination

SteveK — Mon, 15 Aug 2011 14:24:19 +0000

Steve Kunzman, partner in the firm, will be a co-chair of a comprehensive conference:

Groundwater Contamination and Vapor Intrusion Cases

The seminar, which will be put on by Law Seminars International, will take place at the Sheraton Newark Airport Hotel on September 15 and 16.

For more information and to register go to: http://www.lawseminars.com/seminars/11GWATNJ.php

The speakers include noted attorneys, remediation consultants and and other noted experts in the field. The seminar is co-chaired by Ira Gottlieb of McCarter & English. Steven and Ira will also be speaking on insurance coverage issues relating to groundwater claims.

N.J. App. Div. rules that Spill Act liability requires a nexus between a discharge and the contamination of the surrounding environment.

SteveK — Tue, 05 Jul 2011 13:28:22 +0000

In NJDEP v. Ofra Dimant, et.al. 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 the 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.

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.

DOT held liable as an “arranger” under CERCLA for design and management of stormwater system.

SteveK — Wed, 10 Nov 2010 14:21:13 +0000

In United States v. Washington State Department of Transportation, the U.S. District Court in Washington recently held the Washington State Department of Transportation (WSDOT) liable as an “arranger” of the discharge of hazardous materials under CERCLA. The case involved a portion of the Commencement Bay-Nearshore Tideflats Superfund Site in Tacoma, Washington, known as the Thea Foss and Wheeler Osgood Waterways. The U.S. contended that the WSDOT was responsible for contributing to the contamination at the site as an owner and operator of the highways and drainage structures, and as an arranger for the design and construction of the drainage structures that allowed contaminants to be discharged into the waterways. The issues of the responsibilities and liabilities of the WSDOT were considered by the court in a series of motions decided from June through September.

Ultimately, the court concluded that the WSDOT designed the stormwater system with the specific purpose to discharge the highway runoff into the environment, knowing that the runoff contained hazardous substances. The court further noted that the WSDOT could have designed the system to redirect, contain or treat the runoff, which would have avoided the discharges.

The WSDOT had also asserted that the discharge was a “federally permitted release,” and thus was exempt from CERCLA liability under ’107(j) as the drainage system was operated under a National Pollution Discharge Elimination System (NPDES) permit. The U.S. countered that there limitations of the permit had been exceeded and there were numerous unpermitted releases. The court concluded that there was insufficient evidence to determine the scope of the permits and whether the resulting injury from any impermissible discharges was divisible.

This decision provides an expansive view of the concept of arranger liability based upon the Supreme Court decision in Burlington Northern, whereas other courts have been taking a more narrow view. In most other matters, courts conduct a detailed analysis of the facts of the intent to discharge; whereas, in this decision, the factual analysis is somewhat limited.

District Court holds the Statute of Limitations for NRD claims under CERCLA is triggered by constructive knowledge of injury by Trustee.

SteveK — Sat, 17 Jul 2010 12:26:00 +0000

On July 13, 2010, in Commissioner of the Department of Planning and Natural Resources v. Century Alumina, LLC, et.al., the Federal District Court from the St. Croix division of the Virgin Islands, held that an action to recover natural resource damages (NRD) must be commenced within 3 years of the constructive knowledge of the injury by the trustee.

The plaintiff trustee brought the claim against a number of industrial entities for the release of contaminants onto a number of industrial tracts at various times which injured the land as well as groundwater and the Caribbean Sea. The defendants moved for summary judgment seeking dismissal of the claims under CERCLA’s limitation of actions provision, which provides that an action for NRD must be commenced within 3 years following “the date of the discovery of the loss and its connection with the release in question.” Although the statute does not state what is meant by “discovery” the court relied upon numerous prior decisions as to other statutes and other aspects of CERCLA to conclude that it is based upon the constructive knowledge of the trustee. The court went on to clarify that the knowledge of the agency, including the knowledge of any prior trustee, would be imputed to the present trustee. Accordingly, the determination of whether there was NRD related to the discharges would require an analysis of when the trustee knew or should have known that there was an injury to the natural resource related to the discharges, which would commence the running of the time for bringing an action. With this ruling in hand, the court analyzed the facts as to each site and each defendant, dismissing some claims and allowing others to continue.

This case demonstrates that there courts will take a rational approach in considering the relationship between knowledge of a discharge of contaminants and the commencement of NRD claims. The interests of the government to pursue recovery of NRD, while important, will not allow the government to be inattentive to their statutory obligation to act promptly to seek to enforce these rights.

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.