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State of New Jersey Not Liable for pre-1977 Hazardous Discharges

On March 27, 2017, the New Jersey Supreme Court issued a very important decision concerning Spill Act liability in contribution cases.  In the case of NL Industries, Inc. v. State of New Jersey, the Court held that the State is not liable to pay cleanup costs for “pre-Act” discharges, meaning discharges that occurred before the… Read More »

Laches to defeat a private party contribution claim under the Spill Act?

In 2015, the New Jersey Supreme Court ruled that private party contribution claims under the New Jersey Spill Compensation and Control Act (the “Spill Act”) are not time barred by a statute of limitations. See Morristown Associates v. Grant Oil Co., 220 N.J. 360 (2015).  Accordingly, private claims for contribution pursuant to the Spill Act… Read More »

When Remediation Goes Wrong: Appellate Division Says Remedial Efforts May Constitute Evidence Spoliation

In 18-01 Pollitt Drive, LLC v. Engel, the Appellate Division held that the discard of piping, a sump pit, and concrete flooring during remediation constitutes spoliation of material, physical evidence. Docket No. A-4833-13T3 (App. Div. Oct. 31, 2016).  Spoliation of evidence occurs when a litigant has “hidden, destroyed, or lost relevant evidence and thereby impaired… Read More »

A draft settlement is not an executable agreement for parties seeking to settle Natural Resource Damage liability under the Spill Act

The Appellate Division recently handed down its decision in Cumberland Farms, Inc. v. New Jersey Department of Environmental Protection, et al., holding that no enforceable settlement existed between the two parties with respect to Natural Resource Damage (“NRD”) claims associated with fifty-four sites. Under the Spill Act, the New Jersey Department of Environmental Protection (“DEP”)… Read More »

New EPA Rule Increases Civil Monetary Penalties in the Name of Inflation

Civil penalties, including those levied by the United States Environmental Protection Agency (“EPA”) under statutes such as the Clean Air Act (“CAA”) and Resource Conservation and Recovery Act, dramatically increased on August 1, 2016.  Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “Inflation Improvement Act”), federal agencies are required… Read More »

Appellate Division Sheds Light on Procedural Requirements for Certain Environmental Claims

A recent Appellate Division case shed some light on certain procedural requirements for environmental claims. In Bradley v. Kovelesky, et al., Docket No.: A-0423-14T4, the claims before the court pertained to an 8.3 acre property in Middletown Township. Lawrence Carton, deceased June 2007, purchased the property January 2006. Carton set out to build a residence… Read More »

The Path(way) to Reinvestigation: MassDEP Revisits Closed TCE Sites

The Massachusetts Department of Environmental Protection (“MassDEP”) recently proposed to reopen closed waste sites based on available data that suggests levels of trichloroethylene (“TCE”) may exceed current United States Environmental Protection Agency (“EPA”) toxicity values.  While the New Jersey Department of Environmental Protection (“NJDEP”) has not yet proposed a similar endeavor, it is worth following… Read More »

U.S. Supreme Court Affirms Army Corps Jurisdictional Determinations as Judicially Reviewable Final Agency Actions

On May 31, 2016, the United States Supreme Court unanimously held in United States Army Corps of Engineers v. Hawkes Co., Inc. that an Army Corps of Engineers jurisdictional determination (“JD”) is a judicially reviewable final agency action under the Administrative Procedure Act (the “APA”). No. 15-290, slip op., 578 U.S. ___ (May 31, 2016)…. Read More »

Unprecedented Climate Change Case Proceeds in Court

A federal magistrate judge in Eugene, Oregon recently allowed an unprecedented climate change case to proceed in court.  Bill McKibben and Naomi Klein call it the “most important lawsuit on the planet right now.” In Kelsey Cascade Rose Juliana; et al. v. the United States of America; et al., Docket No.6:15-cv-1517-TC (D. Or. Apr. 8,… Read More »

New York Court of Appeals Considers Navigability of Adirondack Waterway

In Friends of Thayer Lake LLC v. Brown, 2016 NY Slip Op 03647, the issue recently in front of the Court of Appeals of New York was whether a certain Adirondack waterway is navigable-in-fact, a question that determines whether the public has access to the waterway. Plaintiffs own land in a remote area of the… Read More »