The New Jersey Appellate Court recently found that a responsible party cannot rely solely upon previously issued No Further Action (“NFA”) letters from the New Jersey Department of Environmental Protection (“NJDEP”) when complying with a new trigger under the Industrial Site Recovery Act (“ISRA”).
In a cautionary tale for all parties remediating contaminated sites who may want to pursue recovery of cleanup costs from another party, the New Jersey Appellate Division recently held that discarding piping and other physical material during the course of remediation constitutes spoliation of evidence warranting sanctions in the ensuing contribution litigation.
A New Jersey trial court recently determined that the equitable defense of laches can bar a private-party claim for contribution under the New Jersey Spill Compensation and Control Act (the “Spill Act”). 22 Temple Avenue, Inc. v. Audino, Inc., et al., Docket No. BER-L-9337-14 (Law Div. Oct. 5, 2016). This is a seemingly surprising decision considering that just last year the New Jersey Supreme Court ruled that there is no statute of limitations defense for private-party contribution actions under the Spill Act.
In New Jersey, governmental entities with the power of condemnation have long battled with owners of real property over the compensation that the government must pay for condemned property. One important issue in these clashes has been the impact of environmental contamination on the valuation of real property and the cost of the investigation and remediation of contamination for which the property owner is otherwise liable.
In recent years, the New Jersey Department of Environmental Protection (“NJDEP”) has focused on addressing the improper disposal of contaminated soil, which can result in soil piles that create environmental and health risks from polluted run-off. To address one such site, in 2011 the NJDEP filed suit alleging that an approximately 60-foot high contaminated soil stockpile in Woodbridge, New Jersey had been operated as an illegal landfill for over 11 years.
The New York State Legislature recently passed a law allowing plaintiffs to pursue “personal damages” for injuries caused by “exposure to any substance or combination of substances contained within an area designated as a [S]uperfund site” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) or New York’s Environmental Conservation Law within three years after the site’s designation.
In a recent case, Commonwealth of Pennsylvania Department of Environmental Protection v. Trainer Custom Chemical, ---- F. Supp. 3rd --- (2016), 2016 WL 4525451, the District Court for the Eastern District of Pennsylvania found that a current owner of contaminated property is not liable under Section 107(a)(1) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) for cleanup costs incurred prior to ownership. Trainer limits current owner liability under CERCLA to only those costs incurred after the owner takes title to the contaminated site.
In our August 10th blog entry, we reported on the New Jersey Appellate Division’s recent decision that policyholders do not share in the insurance allocation of long-tail environmental losses for periods when insurance was not reasonably available in the marketplace.
On August 15th, the Appellate Division permitted the owner of contaminated property to assert a claim under the Environmental Rights Act (“ERA”), N.J.S.A. 2A:35A-1 et seq., to compel prior owners that allegedly discharged hazardous substances to remediate the contamination.
Under New Jersey insurance law, many of the coverage issues arising under comprehensive general liability (“CGL”) policies related to long-tail environmental claims have been resolved, however, allocation issues, what percentage of the loss each carrier and/or the policyholder is responsible for, are hotly disputed.