Environmental Toxic Torts Civil Procedure

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Insurance Recovery Law -- December 2014 #2

Ammonia Release Constitutes “Direct Physical Loss” Under Policy - Why it matters: A New York federal court recently ruled that the discharge of ammonia at a manufacturing plant – causing a facility shutdown for...more

NJ Spill Act Contribution Rights in Jeopardy Under Proposed Bill: Points to Consider - M&E Environment & Energy Alert

A bill (A-3880/S-444) recently introduced in both houses of the New Jersey legislature would prevent companies and private individuals from exercising their existing contribution rights under New Jersey’s Spill Act to recover...more

California Federal Court Dismisses CERCLA Claims and Strikes Request for Attorneys’ Fees

In N. Cal. River Watch v. Fluor Corp., __F.Supp.3d__, 2014 WL 4954638 (N.D. Cal. Oct. 2, 2014), a Northern California district court dismissed Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”)...more

Minnesota Federal Court Clarifies Pleading Standard in Vapor Contamination Case

In an opinion that may help clarify the jurisdictional and pleading requirements for plaintiffs seeking damages and injunctive relief for alleged injuries from vapor intrusion, the federal district court in Minnesota denied a...more

Third Circuit Affirms Dismissal of Toxic Tort Claims Based on Unreliable Experts

Underscoring the importance of reliable expert methodology, the U.S. Court of Appeals for the Third Circuit upheld the dismissal of a personal injury suit based on unreliable expert testimony. See Henry v. St Croix Alumina,...more

New Jersey Landowner Forfeits Damages by Allowing Defendant to Remediate

In what may be a cautionary tale for owners of contaminated property, a New Jersey appellate court has ruled that a landowner forfeited any claim to property damages when he allowed the responsible party to perform...more

Hydrocarbon Exposure Reconsidered

You might recall previous entries discussing the $2.9 million Dallas County verdict and judgment in Parr v. Aruba. Not all similar suits have the same result. Michael and Myra Cerny sued Marathon Oil Corp. and Plains...more

Tenant Who Sublets A Superfund Site Is Not Likely To Be A CERCLA Liable Party

It is generally the rule that a lessee who does not operate the property it rents will not be liable under CERCLA except in the unusual circumstance where the lessee qualifies as an “owner” of the property. Typically, this...more

California's Eastern District: Government Agency Liable for Costs When Site Cleanup Is Mismanaged

In a ruling last month (California Department of Toxic Substances Control v. Jim Dobbas, Inc., et al), the United States District Court for the Eastern District of California held that the Department of Toxic Substances...more

NJ Supreme Court to Rule on Application of General Six-year Statute of Limitations to Spill Act Claims

The Supreme Court of New Jersey recently heard arguments on whether private claims for contribution brought under the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. (Spill Act) are subject to a...more

The Expanding Availability of Apportionment To Limit Liability in Superfund Cases

In Burlington Northern in 2008, the US Supreme Court ruled that Superfund liability could be apportioned whenever there was a reasonable basis for showing that the harm was divisible, such as by considering the length of time...more

No Need To Wait For NJDEP’s Approval When Seeking Contribution For Site Cleanups

Parties that find themselves responsible for the remediation of contaminated property in New Jersey do not have to wait for the New Jersey Department of Environmental Protection (“NJDEP”) to approve a final cleanup plan...more

CERCLA’s Three Year Statute of Limitations for Contribution Applies To Non-CERCLA Settlements

Parties which settle environmental liability in a judicially approved settlement have three years from the date of that settlement in which to seek contribution even if the settlement is not a CERCLA settlement. That is the...more

The Wait Is Over: Liable Parties Can Now Seek Early Contribution Claims Without New Jersey Department of Environmental Protection...

The recent Supreme Court of New Jersey ruling in Magic Petroleum v. Exxon Mobil demonstrates a trial court’s ability to allocate liability to “dischargers” while maintaining the role of the state’s Department of...more

Not So Fast: New York’s High Court Relieves Pressure on Liability Carriers to Disclaim Coverage “As Soon As Possible”

Under a New York statute, a liability insurer that denies coverage for a death or bodily injury claim must provide written notice of its decision “as soon as is reasonably possible.” Last year, in Long Island Lighting Co. v....more

Federal Court Determines Low Levels of Carcinogens PCE and TCE Insufficient to Establish Private RCRA Cause of Action Absent...

Further underscoring the importance of expert testimony to support environmental claims, the United States District Court for the District of New Jersey in Leese v. Lockheed Martin Corp., et al., No. 11-5091 (JBS/AMD), 2014...more

Importance of Judicial Approval of CERCLA Settlements

Before a Superfund settlement becomes enforceable, it must be reviewed by a federal court to confirm that it is fair, reasonable, and consistent with CERCLA’s objectives. This judicial review is at the heart of CERCLA’s...more

How Much Deference Do States Get in Entering CERCLA Consent Decrees? Probably A Lot, But Perhaps Not As Much as You Thought

In Cannons Engineering, the First Circuit Court of Appeals famously stated that, when CERCLA consent decrees arrive at the courts of appeal for review, they do so “encased in a double layer of swaddling,” because both the EPA...more

BP Oil Spill Litigation – Current Status of the Litigation

As many are aware, BP entered into a Settlement Agreement to compensate citizens of areas surrounding the Gulf of Mexico for losses arising from the epic oil spill in 2010. There has been substantial litigation and appellate...more

New Jersey Supreme Court Allows Early Contribution Claims Under the Spill Act

Parties sued by the New Jersey Department of Environmental Protection (“DEP”) for remediation now have an immediate right to seek contribution from other potentially responsible parties. Following last week’s unanimous ruling...more

Toxic Tort & Product Liability Quarterly Volume 7, Number 3

PREEMPTION - Supreme Court Says CERCLA Does Not Preempt Repose Defense for Tort Claims - The U.S. Supreme Court has put to rest a longstanding legal question affecting the deadline for plaintiffs to bring toxic tort...more

Supreme Court Says CERCLA Does Not Preempt Repose Defense for Tort Claims

The U.S. Supreme Court has put to rest a longstanding legal question affecting the deadline for plaintiffs to bring toxic tort and contamination claims stemming from certain contaminated sites. CTS Corp. v. Waldburger, No....more

Fourth Circuit Affirms Liability for Selenium Discharges - Rejects Permit Shield Defense

By a published decision released on July 11, 2014, the U.S. Court of Appeals for the Fourth Circuit affirmed a district court decision out of the Western District of Virginia finding that A & G Coal Corporation (“A & G”)...more

Morristown Associates v. Grant Oil

In 2006, Morristown Associates filed a suit against multiple heating companies and the previous owners of a dry cleaning business to seek payment for the costs they incurred redeveloping the property. They cited the source...more

Settling Parties In Government Consent Orders Have CERCLA Claims For Contribution Not Cost Recovery

To the extent there was any remaining uncertainty, the Sixth Circuit has now made crystalline that a party settling some or all of its liability under CERCLA with the United States or a state has a contribution claim under...more

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