Category Archives: Environmental Litigation

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NJ Assembly Approves Bill Granting Final Decision-Making Power to Office of Administrative Law

By Jill Richardson on May 6th, 2013 Posted in Environmental Litigation

In an effort to streamline administrative law hearings, the New Jersey Assembly recently approved a bill granting the Office of Administrative Law final agency decision-making power in certain contested state agency cases, including those from the Department of Environmental Protection.  Under A-1521, passed on April 29, 2013, the department heads of ten state agencies would no longer have the ability to… Continue Reading

Warrantless Inspections are Not Warranted under the Freshwater Wetlands Protection Act

By Jill Richardson on April 22nd, 2013 Posted in Environmental Litigation

The New Jersey Supreme Court recently held that the New Jersey Department of Environmental Protection (NJDEP) may not conduct a warrantless administrative inspection of a residential property subject to a Freshwater Wetlands Protection Act (“Act”) permit without the consent of the permittee.  The warrantless search exception authorized by the U.S. Supreme Court in New York… Continue Reading

The New Jersey Waiver Rule is Upheld by Court

By David P. Steinberger on March 27th, 2013 Posted in Environmental Litigation

On March 21, 2013, the New Jersey Appellate Division upheld the validity of the New Jersey Department of Environmental Protection’s (DEP) controversial “Waiver Rule.”  The Waiver Rule generally allows the DEP to waive regulatory requirements under certain conditions.  The Waiver Rule was proposed by the DEP in March 2011, and was finalized in March 2012… Continue Reading

EPA Issues Revised Enforcement Guidance Regarding Tenant Liability Under CERCLA’s Bona Fide Prospective Purchaser Provision

By Douglas I. Eilender on February 26th, 2013 Posted in Environmental Litigation

Late last year, the United States Environmental Protection Agency (“EPA”) issued Revised Enforcement Guidance Regarding the Treatment of Tenants under the Federal Comprehensive Environmental Response, Compensation, and Liability Act’s (“CERCLA”) Bona Fide Prospective Purchaser Provision.  CERCLA generally provides that the owner and operator of a facility from which there is a release or a threatened… Continue Reading

Appellate Court Upholds Statutory Due Diligence Requirement and Finds Ownership Status after Declaration of Taking

By Susan C. Karp on November 19th, 2012 Posted in Environmental Litigation, Transactions Involving Contaminated Property

Liability based on property ownership under New Jersey’s Spill Compensation and Control Act (“Spill Act”) and its impact on condemnation cost recovery suits were the subject of an interesting decision last  month in New Jersey Schools Development Authority vs. Marcantuone (October 29, 2012 ). The New Jersey Appellate Division made two rulings in this eminent… Continue Reading

Failure to Perform Appropriate Pre-Purchase Investigation Renders Buyer Liable for Cleanup

By Gerard M. Giordano on October 4th, 2012 Posted in Environmental Litigation, Transactions Involving Contaminated Property

New Jersey property buyers need to be aware of liability for existing contamination as a result of failing to do an appropriate environmental investigation prior to purchasing.  The recent case State Farm Fire and Cas. Co. v. Timothy Shea, No. A-4124-10T1 (App. Div. Sept. 28, 2012) illustrates such risks. In State Farm, Kimberly Rossi owned… Continue Reading

New Jersey Supreme Court: The Spill Act Requires Proof of a Nexus Between a Discharger and the Contamination Being Cleaned Up

By David P. Steinberger on September 27th, 2012 Posted in Environmental Litigation

On September 26, 2012, the New Jersey Supreme Court issued its decision in New Jersey Dep’t of Envtl. Prot. v. Ofra Dimant.  In this case, the Supreme Court was called upon to address the proofs needed to tie a discharger to a contaminated site in order to find that discharger liable for the contamination under… Continue Reading

Court Invalidates NJDEP Cleanup Rule For De Minimus Quantity Exemptions

By Gerard M. Giordano on July 13th, 2012 Posted in Environmental Litigation

On July 6, 2012, the New Jersey Appellate Division, in the case of Des Champs Laboratories, Inc. v. NJDEP, invalidated the NJDEP’s regulation requiring an owner or operator of an industrial establishment to certify that their property is clean when applying for a De Minimus Quantity Exemption (DQE) under the Industrial Site Recovery Act (ISRA). … Continue Reading

Once Again, the EPA Gets Tough on Stormwater Violations

By David P. Steinberger on June 25th, 2012 Posted in Environmental Litigation

Back in 2009, we reported here that the United States EPA was imposing significant penalties on parties for violating the Clean Water Act’s stormwater permitting requirements for construction projects.  The enforcement of these violations continues with a new penalty settlement announced by EPA against Toll Brothers, Inc. on June 20, 2012. In the settlement, Toll… Continue Reading

Essex Chemical Successfully Challenges NJDEP’s Natural Resource Damages Suit

By Douglas I. Eilender on April 12th, 2012 Posted in Environmental Litigation

The New Jersey Appellate Division sides with Essex Chemical Corporation, a subsidiary of DOW Chemical, in a suit filed by the NJDEP in its effort to obtain both restoration and compensatory natural resource damages (“NRDs”) pursuant to the Spill Compensation and Control Act (“Spill Act”).  The Court held that Essex Chemical did not need to… Continue Reading

How Clean is Clean in New York

By Gerard M. Giordano on February 1st, 2012 Posted in Environmental Litigation

New York’s highest court recently upheld New York Department of Environmental Conservation’s (“NYDEC”) regulations regarding cleanups at contaminated sites.  In New York State Superfund Coalition Inc. v. New York State DEC, No. 189 (12/15/11), the New York State Superfund Coalition, a group of companies that own contaminated sites in New York, challenged NYDEC’s regulations requiring… Continue Reading

New Jersey Appellate Court Grants Hearing to Contest Rescission of a No Further Action Letter

By Douglas I. Eilender on November 30th, 2011 Posted in Environmental Litigation, Remediation Oversight

In the Matter of Crompton Colors, Inc., No. A 0778 09T1 (App. Div. 10/27/11), the NJ Appellate Division ruled that a property owner is entitled to have an administrative hearing regarding the rescission of a no further action letter (“NFA Letter”) by the DEP.  In this case, a subsidiary of Hartz Mountain Industries, a former… Continue Reading

Cole Schotz Welcomes New Partner

By LexBlog on October 17th, 2011 Posted in Environmental Litigation

Cole Schotz is pleased to welcome Richard J. Ericsson as the Chair of the Environmental Law Department. Mr. Ericsson regularly counsels clients on the impact of environmental laws on corporate and property transactions and financing, the clean up and redevelopment of contaminated properties, responding to governmental enforcement actions, and air, water and waste regulatory compliance…. Continue Reading

Sole Shareholder Of Company That Owns Contaminated Property Can Be Held Liable Under CERCLA As Current Operator

By Gerard M. Giordano on June 8th, 2011 Posted in Environmental Litigation

In the case of Litgo v. Martin, 2011 WL 65933 (D.N.J. Jan. 7, 2011) the federal District Court of New Jersey held that a shareholder of a single-purpose entity that owns a contaminated facility is liable as a current operator under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sec. 9601 et al…. Continue Reading

New Jersey’s Appellate Division Rules that Mere Generation of Hazardous Substances Without Evidence of Spill is Insufficient for Spill Act Liability

By Gerard M. Giordano on October 27th, 2010 Posted in Environmental Litigation

In the recent case of Northern International Remail and Express Co. v. Lester Robbins, et al., the Appellate Division held that a plaintiff’s claim against a former owner of property cannot survive without evidence that the former owner’s tenants did more than just generate hazardous waste. In Northern International, Northern International Remail and Express Co…. Continue Reading

DEP Announces New Office of Dispute Resolution

By David P. Steinberger on September 28th, 2010 Posted in Environmental Litigation

On September 27, 2010, New Jersey Department of Environmental Protection Commissioner Bob Martin announced the opening of the DEP Office of Dispute Resolution. Commissioner Martin stated that “The Office of Dispute Resolution will play a key role in achieving our goal of breaking down the barriers that have often existed between the DEP and businesses,… Continue Reading

NJDEP Steps Up Efforts to Collect Natural Resource Damages in New Jersey

By Gerard M. Giordano on January 18th, 2010 Posted in Environmental Litigation

In the past couple of years, the New Jersey Department of Environmental Protection (“NJDEP”) filed more than 100 lawsuits against companies seeking compensation for restoration of damages to natural resources caused by the companies’ discharge of chemicals to the environment. NJDEP also sought compensation for the public’s loss of use of those natural resources. These… Continue Reading

Failure of Notice Deadly to Plaintiff’s Claim

By Dorothy Mello Laguzza on May 6th, 2009 Posted in Environmental Litigation

The District Court of New Jersey in a case of first impression recently held that a New Jersey resident’s lawsuit under the New Jersey Environmental Rights Act (“ERA”) must be dismissed due to her failure to give the appropriate parties notice. (Scott v. Dupont, 2009 WL 901135 (D.N.J. April 1, 2009). Although the plaintiff later… Continue Reading

Getting Heard: When Are Hearings Before the NJDEP or Courts Available?

By David P. Steinberger on April 14th, 2009 Posted in Environmental Litigation, Regulatory Counseling

Every day, the New Jersey Department of Environmental Protection (“NJDEP”) makes many decisions which disappoint the agency’s varied stakeholders. Individuals are upset with NJDEP land use permitting decisions, either because they prevent planned development or allow development on adjacent properties. Permit applicants are upset with limitations placed upon various wastewater or air emissions discharge permits. The ways by… Continue Reading

Recent Decision Presents Valuable Case Study In the Legal Considerations Attendant to Shutting Down Business Operations

By Carl A. Rizzo and Gerard M. Giordano on March 26th, 2009 Posted in Environmental Litigation

In deciding to continue or cease business operations at a particular location, a business owner needs to be fully informed as to how his actions will impact the company’s rights and obligations under the laws governing his business, such as environmental and real property tax laws.  In this way, the business owner can ensure that his decisions are made with the… Continue Reading

USEPA Cracks Down on Stormwater Violations – Levies Multi-Million Dollar Penalties.

By David P. Steinberger on March 5th, 2009 Posted in Environmental Litigation, Land Development & Sustainable Building

In June 2008, the United States Environmental Protection Agency announced a $4.3 million dollar settlement against four national residential real estate development companies. The government alleged that those companies violated the federal Clean Water Act (“CWA”) requirements addressing the discharge of stormwater (i.e., rainwater/snow melt runoff) from construction sites. Under the CWA, a permit and a stormwater… Continue Reading

Enforcement Power of NJDEP Increased

By Dorothy Mello Laguzza on March 5th, 2009 Posted in Environmental Litigation, Land Development & Sustainable Building, Regulatory Counseling

On January 4, 2008, the New Jersey legislature passed the Environmental Enforcement Enhancement Act. This Act enhances the enforcement authority of the New Jersey Department of Environmental Protection (“DEP”) under ten environmental statutes: Waterfront Development Act, Pesticide Control Act of 1971, Wetlands Act of 1970, Freshwater Protection Act, Coastal Area Facility Review Act, Endangered and Nongame Species… Continue Reading