EPA Proposes to Remove New Jersey Crown Vintage Landfill from Superfund ListMay 6, 2015
The United States Environmental Protection Agency (“EPA”) is proposing to remove the Crown Vantage Landfill Superfund site in Alexandria Township, New Jersey from the Superfund List. A small portion of the landfill sits on the bank of the Delaware River. Crown Vantage was used as a landfill from the 1930s to the early 1970s for disposal of waste from the Curtis Specialty Papers mill as well as Riegel Paper Company. The 10-acre landfill was contaminated with semi-volatile organic compounds, polychlorinated biphenyls (PCB) and other pollutants. EPA removed approximately 2,450 drums and waste from the site and backfilled the site. A wall was constructed between the site and the river, along with fencing and signs to keep people from entering the site. The EPA implemented deed restrictions, which prevent activities that can disturb the site and prohibit future on-site construction. The EPA will review the site every five years to assure that it remains protective of human health and the environment
Kodak Settles with the Government to Pay Costs for Clean-up at Sites in New York and New JerseyMarch 20, 2014
Following its emergence from bankruptcy in September 2013, Eastman Kodak has settled with the government to pay $49 million towards the clean-up of its Rochester business park site and the Genesee River from decades of generation and storage of hazardous waste. The New York Department of Environmental Conservation will fund additional costs up to $99 million towards the clean-up. As part of a second settlement, Kodak will also pay $2 million towards clean-up of a site in Fair Lawn, New Jersey and $750,000 for the Mercury Refining Superfund Site in Colonie and Guilderland, New York.
Minneapolis Residents File Class Action Suit Against General Mills over TCE Vapor IntrusionJanuary 8, 2014
Residents of a Minneapolis neighborhood have filed a class action suit against General Mills over vapor intrusion into their homes from a trichloroethylene (TCE) plume (Ruzicka v. General Mills Inc., Minn. Dist. Ct., No. 27-CV-13-21004, 12/5/13).
The residents allege that soil gas vapors from the TCE plume are intruding into their homes, reducing their value and threatening resident’s health. In addition, they accuse General Mills of failing to adequately investigate and remediate the vapor intrusion caused by its TCE disposal and violations of Minnesota’s Environmental Response and Liability Act. The complaint also includes allegations of negligence, trespass and willful and wanton conduct.
The plaintiffs are seeking certification as a class action; investigation, delineation and remediation of the contamination; establishment of a medical monitoring and treatment fund; damages and attorney fees.
The TCE plume developed as the result of onsite disposal of TCE and other volatile organic compounds at a General Mills research facility that operated in the area between the 1940s and 1980s. The facility is a designated Superfund site and General Mills has been working to clean up the contamination for the past 25 years.
Brach Eichler Launches New Subsidiary, Brach Eichler Government Affairs LLCNovember 5, 2013
Rocco Iossa has joined the Firm and has helped launch the Firm's new government affairs and lobbying firm Brach Eichler Government Affairs LLC.
The subsidiary will be located in Trenton, NJ and Rocco will be the Managing Member. Rocco is the former founding member of State Street Partners, a well known and reputable full service government affairs lobbying firm. Brach Eichler Government Affairs will serve clients across a broad base of business and industry, with particular focus in the healthcare, environmental, transportation, real estate and pharmaceutical industries. Rocco brings to the Firm more than 25 years' experience in government affairs and law as well as valuable expertise and relationships. He served as senior assistant counsel in the Office of the Governor for the State of New Jersey where he represented Governor Christie Todd Whitman on all legislative matters pending before the New Jersey Senate. In 1995, he was named appointments counsel to the Governor, where he directed all gubernational appointments in the State of New Jersey.
Also a part of Brach Eichler Government Affairs LLC is Alan Steinberg. Alan has been one of the leading governmental officials in the environmental arena in the Northeastern United States over the past two decades. As Executive Director of the New Jersey Meadowlands Commission under New Jersey Governor Christie Whitman, Steinberg was in charge of the zoning, planning, solid waste management, and environmental regulation of the New Jersey Meadowlands, one of America's most sensitive environmental areas. As Region 2 Regional Administrator of the U.S. Environmental Protection Agency under President George W. Bush, Steinberg was the top Federal environmental official of a region that included all of New York State, New Jersey, Puerto Rico, the U.S. Virgin Islands, and eight federally recognized Indian nations. In both these positions, Steinberg developed a thorough knowledge of environmental regulation of air, land, and water, the Superfund program, and extensive contacts with the career environmental officials in the jurisdictions he supervised.
For more information visit www.bracheichlerga.com
Brach Eichler Launches Criminal Defense and Government Investigations PracticeNovember 1, 2013
Riza Dagli has joined Brach Eichler as a member and chair of the Criminal Defense and Government Investigations Group.
Prior to joining the firm, Mr. Dagli was Deputy Director of the NJ Division of Criminal Justice, where he supervised complex investigations and prosecutions, including Environmental Crimes.
Before government service, Mr. Dagli litigated environmental matters for a large NJ law firm. As a prosecutor, defense attorney, and litigator, he has been actively involved in the full spectrum of environmental law, from minor violations and releases to superfund cleanups and criminal prosecutions.
EPA Adds Essex County Site to National Priorities List for Superfund Clean-upSeptember 21, 2012
The United States Environmental Protection Agency (EPA) added the Orange Valley Regional Groundwater Contamination site in Orange and West Orange, New Jersey to the National Priorities List (NPL) for clean-up under the Superfund program. The EPA reports that the public supply wells were found to contain tetrachloroethylene (PCE), trichloroethylene (TCE) and cis-1, 2-dichloroethylene (cis-1, 2-DCE) in the Orange Park and Gist Place wells, with PCE and TCE exceeding the EPA Safe Drinking Water Act maximum contaminant levels (MCLs).
These two wells serve 10,000 people and there is another nearby well that cannot be used because of contamination. The Orange Water Department has installed treatment systems to remove volatile organic compounds (VOCs) from the ground water and treats it prior to distribution. The water quality and treatment system are monitored regularly according to EPA.
New Jersey identified this site to EPA. These are 54 proposed sites awaiting agency action including Matlack, Inc. in Woolwich Township, New Jersey and Riverside Industrial Park in Newark, New Jersey.
EPA Adds New York Site to Superfund National Priorities List and Proposes to Add New Jersey SiteApril 5, 2012
The United States Environmental Protection Agency (EPA) added nine new hazardous waste sites that poses risks to people's health and the environment to the National Priorities List (NPL) of Superfund sites. Since 1983, 1,661 sites have been added to the NPL, 359 of which have been cleaned up. Upon adding a site to the NPL, EPA looks to identify companies or people responsible for the contamination at the site and require them to conduct the remediation or to pay for the cleanup. It may be several years before EPA finds the responsible parties and obtains the funding to conduct the cleanup.
Of those nine sites, the Eighteenmile Creek in Niagara County, New York was added.
EPA also proposed an additional ten sites to be added to the NPL, including Orange Valley Regional Ground Water Contamination (contaminated ground water plume) in Orange/West Orange, New Jersey.
NJ Appelate Divistion Holds NJDEP Must Prove Nexus Between Discharge and Contamination Under Spill ActApril 14, 2011
In New Jersey Department of Environmental Protection, et al. v. Ofra Dimant, et al., Docket No. A-3180-09T2, the Appellate Division upheld the trial court's ruling that the New Jersey Department of Environmental Protection ("NJDEP") did not prove a nexus between a discharge by defendant and the contamination in the area.
NJDEP filed a New Jersey Spill Act claim for contribution and indemnification pursuant to the New Jersey Spill Act, N.J.S.A. 58:10-23.11 to 23.24 ("Spill Act") against several defendants, including Sue's Clothes Hanger and its individual owners ("defendant") alleging that the laundromat and dry cleaner was responsible for water contamination on properties in Bound Brook. The defendant occupied a unit of a strip mall that was north and northeast of the contaminated properties. There were also several other dry cleaners in the area as well as a gasoline station and two Superfund sites.
The defendant began its operation as a self-serve laundromat and a twice-per-week dry cleaner, after purchasing the property from another dry cleaner in May 1987. In early 1989, the defendant discontinued use of the dry cleaning machines and dismantled and sealed the discharge pipes, making the period of defendant's operations, for purposes of this case, May 1987 to early 1989. In 2000, the NJDEP investigator and geologist found that the potable wells with the highest levels of perchloroethylene ("PCE") in 1988 and 1989 were located behind the defendant's property and another dry cleaner. NJDEP took additional samples, which resulted in soil samples containing almost undetectable levels of PCE, trichloroethylene ("TCE"), and dichloroethylene ("DCE"), but groundwater samples above the maximum contamination levels ("MCL") for PCE and methyl tertiary butyl ether ("MTBE"), a gasoline additive. The investigator concluded that the defendant was the primary source of the contamination but that the presence of TCE and DCE indicated that the contamination had been there for a long time prior to 1988.
The defendant's expert also opined that the contamination was there prior to the defendant's business operations and certain contamination was from the upgradient gasoline service station. The NJDEP investigator and the defendant's expert had differing views of the direction of the flow of groundwater.
In 2004, NJDEP filed a complaint against the defendant, the strip mall owner, the other dry cleaner and the individual owners of the dry cleaner seeking contribution for the costs of the environmental remediation. The defendant filed an answer, counterclaim and third-party complaint against prior owners and operators, including the previous owners of their business. Several defendants settled with the NJDEP, while others filed for and received bankruptcy protection. The defendant was the only remaining party at trial. The trial judge found that the NJDEP did not establish by a preponderance of the evidence that there was a nexus between discharge by the defendant and the groundwater contamination on the adjacent properties. The judge held that even though the Spill Act provides for strict liability, there is a requirement that a nexus between the discharge and the consequent damages be proved. The judge made several other findings regarding the NJDEP's investigation, as well as the historic operations at the site. NJDEP appealed.
The Appellate Division noted that Spill Act cases are generally focused on the connection between the discharge and discharger and that the "in any way responsible" standard is usually interpreted very broadly. The Court does, however, note that the statute's definition of discharge specifically refers to a resulting damage. The NJDEP did not cite any cases in which a discharger is held liable under the Spill Act without some proof of damage. The Court held that it was NJDEP's burden to demonstrate that the defendant had some connection to the PCE contamination or had contributed to the contamination from previous site operations. The Appellate Division also upheld the trial court's finding that the NJDEP did not prove whether the defendant's predecessors had caused the contamination and not one of the other tenants in the strip mall; thus the defendant could not be found liable as the successor operator, even though it continued the business operations of the previous owner as there was insufficient evidence to establish a discharge.
This case demonstrates that it is critical to demonstrate that it is critical to demonstrate a nexus between a discharge and the contamination.
- Clean Air Act
- Clean Water Act
- Climate change
- Affordable Housing
- Due diligence
- Eminent Domain
- Floor hazard regulation
- Land Use
- Natural resource damages
- NJDEP Waiver Rule
- Site remediation
- Spill Act
- Toxic torts
- Vapor intrusion