Here is a selected sample of the kind of environmental coverage subscribers receive twice monthly. Every major development -- and many minor ones -- are reported here in one place. (This list is for sample purposes; it is not the most recent cases.) Sample the contents of some past issues. Table of Contents from September 22, 1999 issue of New Jersey Journal of Environmental Litigation (Table of Contents of earlier issues follows this issue.) HOME (To search, use FIND.) (Subscribers received this wealth of timely information: unbiased summaries of these cases and full texts of many of the rulings, including not-for-publication decisions, within days of being filed. Since most of these filings occurred within two weeks of the date of publication, subscribers found in one convenient place the latest important and often unreported environmental law developments.) Clean Water Act Citizen groups challenge EPA to produce records for two rivers American Littoral Society and PIRG want documents on Upper Millstone and Passaic Rivers EPA seeks reargument of ruling on 'unreasonable delay' claim Judge allowed citizen groups to assert agency fails to identify quality of water in NJ In response, citizen groups say NJ's inaction is tied to 'delay' Contend inaction is yardship for measuring extent of 'unreasonable delay' EPA insists groups are not entitled to access TMDL material Says groups' APA challenges to EPA approval are time-barred Groups: EPA hides behind 'formalistic' reading of discovery order They argue that agency has not sought to protect documents Environmental Coverage Amadei opposes jury trial on pollution exclusion ruling Tells Supreme Court that Appellate Division erred in reversing bench ruling on GEMS Aetna says Amadei seeks to abrogate right to jury trial jury trial on occurrence and exclusion Contempt/FOIA 3rd Cir. affirms dismissal of case alleging failure to respond Citizens contend PADEP failed to respond to neighboring contamination Seeking rehearing in banc, petitioners claim reversible error Argue constitutional claim was dismissed for lack of subject matter jurisdiction Clean Air 3rd Cir. orders EPA and Texaco to address Clean Air rules EPA's response describes how agency implements New Source Performance Standards Of Interest in Circuit Judge approves consent decree with eight generator defendants Agree to pay $7.4 million for cleanup of PA site; three settlements withs 576 parties Waterfront Development ALJ finds bulkhead will not minimize impact on wetland and beach Table of Contents from September 7, 1999 issue of New Jersey Journal of Environmental Litigation (Table of Contents of earlier issues follows this issue.) (To search, use FIND.)
CERCLA Settlement
Judge approve's $7.1-million settlement with 20 defendants
Part of $27.1-million settlement; separate accord aUows funding
subject to future aUocation
Waste Plow/Liability
Appellate Division abrogates waste agreement between counties
But remands to find equitable remedy for Warren County taxpayers
Waste Plow/Liability
Panel declares interdistrict agreement is no longer binding
Atlantic County authority and Somerset County have no further
obligations, it says
Radioactive Waste
Panel finds waste assessment against Westinghouse is valid
Company contended it has not produced waste at property since
1986
Of Interest in Circuit
Insurer insists pollution exclusion is not restricted to
CERCLA
Tells PA Supreme Court that exclusion does not relate only
to release into natural environment
Solid Waste
PA board grants Atlantic Coast Recycling supersedeas with
conditIons
Supersedeas terminates if facility that challenged NJ waste
flow exceeds 5,000-ton limit
Fishing
ALJ denies horseshoe crab fishing permit for two years
Pinds fisherman knowingly harvested crabs in prohibited area
for profit
Wetlands
ALJ finds FWPA, not WPCA standards, apply to office building
Petitioners claimed construction is exempt because of reauthorization
of NWP
Table of Contents from August 24, 1999 issue of New Jersey Journal of Environmental Litigation (Table of Contents of earlier issues follows this issue.) (To search, use FIND.) Waste Flow/State Liability NJ Supreme Court is told all waste contracts are not void Camden County Energy Recovery Associates says state has liability for franchises Freeholders say factors in financing were in control of state Camden County board sees damage as 'irreparable, of major importance' Authority says decision allows state to walk away from duty County financing authority contends state is responsible for curing NJ waste system Clean Water Act Citizens groups move to compel EPA to complete record Suit alleges agency fails to perform mandatory water quality duties Length of Cleanup Judge rejects argument that 14 years is 'reasonable' for cleanup Buyer contended seller had contractual duty to complete cleanup in reasonable time Malicious Prosection Notice of appeal filed in dismissal of malicious prosecution case Judge found plaintiff had due process available up to Appellate Division Waste Flow/Contracts 3rd Cir. approves dismissal of Bergen County contract appeal Union County Utilities Authority stipulated to settlement reached through mediation Walkway Rule Judge upholds public's right to use portion of 18-mile waterfront area Declares filled land along Hudson River was once submerged 'public trust property' WPCA ALJ affirms $36,000 penalty for failure to sample water Finds Pra Mar Realty conceded it did not sample and analyze discharged groundwater Table of Contents from August 10, 1999 issue of New Jersey Journal of Environmental Litigation (Table of Contents of earlier issues follows this issue.) (To search, use FIND.) Clean Water Act Judge allows claims alleging EPA fails to protect NJ streams Citizens groups argue agency failed to perform mandatory water quality duties Wetlands Judge finds lack of allegation of malicious wetlands prosecution Plaintiffs alleging malicious prosecution always had recourse to due process, he says Waste Flow Appellate Div. holds settlement before Atlantic Coast is enforceable Third Circuit waste flow ruling did not make parties' prior settlement unconstitutional Supreme Court will hear appeal of breach of contract case Camden County facility opeator insists state is liable for waste flow ruling damages Access Judge denies access by former cleanup contractor to inspect site Affirms magistrate's decision that found burdens of inspection outweigh benefits Proprietary Data Shinn approves 18-month extension of protective status for data Ogden said material would provide competitors with insight into its operations Of Interest in Circuit PASupreme Court says pollution exclusion bars coverage Injury claim arose out of release of irritating fumes, court holds in first such ruling NJPDES ALJ imposes $314,750 for violations based on self-monitoring reports Finds Cedar Square failed to monitor outfalls and sample correctly Flood Hazard ALJ finds applicant knew wet conditions when lot was purchased Denies waiver of strict compliance because he created own 'hardship' Table of Contents from July 19, 1999 issue of New Jersey Journal of Environmental Litigation (Table of Contents of earlier issues follows this issue.) (To search, use FIND.) CAFRA Judge orders CAFRA rule proposal to be published Aug. 2 At urging of environmental groups, judge denies DEP's motion for extension CERCLA/Evidence Judge rules Lightman Drum severally liable for response costs Says Joint Defense Group established liability under §113 for past and future costs CERCLA/Evidence Judge denies defense group's motion as to Stepan's liability Says company's opposing evidence raises enough doubt to counter summary judgment CERCLA/Evidence Judge says evidence allows assumption on Stepan waste in report Denies company's motion to strike environmental report and letter of report's author Waste Flow Appellate Div. sends county charge appeal to Law Division Factual questions about enviornmentdla charge on hauler must be addressed Underground Tanks Panel says consequential damages from tanks should have been tried Finds error in now allowing trial of common law consequential damages CERCLA/Jurisidiction 3rd Cir. says state court must decide if CERCLA preempts state claim Finds PA state court must make determination after district court lost subject matter jurisdiction Waterfront Development Panel says owners are bound by permit condition for accessway Affirms ruling that owners cannot repudiate conditions attached to development CAFRA ALJ says lack of DEP's signature does not bar permit settlement DEP negotiated settlement agreement and set terms but did not sign accord Table of Contents from July 8, 1999 issue of New Jersey Journal of Environmental Litigation (Table of Contents of earlier issues follows this issue.) Natural Resources Damage Industry group says DEP blurs risk and resource damage assessments Assessments of ecological risk and of natural resource damage are not same, it asserts Waste Transporter Fees NJ says federal DOT has no jurisdiction over state's fees Seeks reargument of ruling on hazardous waste transporter registration fees Waste Transporter Fees Associations say courts are proper forum for Commerce Clause issues Welcome support of DEP after seven years on fairness of waste transporter fees CERCLA/Non-Settlors In reply, EPA tells 3rd Cir. CERCLA authorizes orders for non-settlors Agency wants to require non-settling parties to undertake joint responsibility for cleanup Stream Encroachment Shinn denies hearing, says flooding will be 'insignificant' Third-party sought to challenge replacement of culverts with larger ones Of Interest in Circuit Insurers say knowledge of contamination is 'known loss' standard Opposes Rohm and Haas appeal of rejection of 'certain liability' known loss in PA Water Pollution ALJ approves $12,075 settlement of alleged WPCA violations Weldon Materials agrees to make payments Inverse Condemnation Panel finds error in dismissal of inverse condemnation case Lower court found de minimis loss due to DEP monitoring wells on property Solid Waste DEP]s regulation of waste preempts township rules, panel says Township cannot establish hours for waste collection different from approved tariff Table of Contents from June 22, 1999 issue of New Jersey Journal of Environmental Litigation (Table of Contents of earlier issues follows this issue.) (To search, use FIND.) Alternative Liability In reply, NJ Turnpike Authority cites connection with generators Tells 3rd Cir. that lower court overlooked compelling direct and circumstantial evidence Statute of Limitations Appellate Div. says statute of limitations does not apply to Spill Act Reversing, lower court says six-year statute is not defense of contribution claim Site Remediation In this issue: DEP's response on natural resources remediation Says wide array of statutes allows department to impose remediation standards Walkway Rule Magistrate finds groups interests may differ from DEP's Allows environmental groups to intervene in challenge to Hudson Walkway Rule CERCLA/Non-Settlors 3rd Cir. will hear argument July 26 on holding nonsettlors liable EPA appeals decision barring recovery by U.S. where EPA obtained relief in settlement Transporter Fees Appellate Div. vacates ruling that invalidated transport fees Directs DEP is apply to U.S. DOT for ruling on validity of fees by different states Of Interest in Circuit Rohm & Haas says panel sets new rules for known loss in PA Seeks reargument en banc in decision that vacated $21-million award in coverage case Sewage ALJ approves agreement in dispute over sewage service area Settlement calls for Lower Township authority to pay $1,080,000 to Cape May authority Wetlands Shinn says LOI on wetlands does not approve construction Denies third-party hearing because letter contains only factual matters Inspection Fees ALJ approves settlement of $2,070 in inspection fees for $571.50 DEP alleged failure to pay inspection fees plus $1,080 for overdue fees Table of Contents from June 8, 1999 issue of New Jersey Journal of Environmental Litigation (Table of Contents of earlier issues follows this issue.) Alternative Liability PPG Industries tells 3rd Cir. doctrine does not apply to NJTA claims New Jersey Turnpike Authority contends fairness demands doctrine application for seven sites Alternative Liability Occidental Chemical says lack of damages bars doctrine Alternative liability is not needed to remediate any alleged harm, appellee asserts Alternative Liability AlliedSignal says N.J. Turnpike Authority is not 'victim' Authority is at least partially responsible for contamination of sites, appellee insists Site Remediation Industry Network challenges DEP's ecology-based remediation Argues that DEP lacked authority to promulgate natural resource damage provisions Site Remediation DEP says wide array of statutes allow site remediation standards Argues that opponents seek to delay ultimate remediation of contaminated sites RI/FS 3rd Cir. orders RI/FS costs allocated for defense and indemnity Government-mandated costs for cleanup of terminal in Bridgeport should be allocated Insurance/Transfer Judge transfers Geo-Con's federal suit against insurers to NY Seeks coverage for damage to asbestos dump in Myersville, NJ Chapter 11 3rd Cir. says environmental fine is not entitled to priority Fine on debtor for post-petition SWMA conduct in PA is not administrative expense Gag Agreement Judge upholds settlement agreement that bars contacting DEP But orders defendant to submit to agency certain material presented to court Other Decisions ALJ approves settlement reducing $1,000 penalty to $600 Penalty assessed on Star Dollar Cleaners in Community Right to Know Survey action Failure to appear at SWMA hearing brings final penalty order Table of Contents from May 25, 1999 issue of New Jersey Journal of Environmental Litigation (Table of Contents of earlier issues follows this issue.) CERCLA/Alternative Liability NJ Turnpike Authority asks 3rd Cir. to consider alternative liability Contends fairness demands theory to be applied to generator defendants at seven sites S.1070/Minimum Standards Federal Electric says DEP 'mischaracterizes' Brownfield process Reply brief argues that regulated community was not given proper notice Waste Flow/Debt Appellate Div. upholds charge to assure payment of utilities' debt Affirms procedure to meet debt obligations in aftermath of Atlantic Coast decision Freshwater Wetlands Shinn approves 'close question' of rescinding $24,000 penalty ALJ found owner's belief in absence of wetlands was not unreasonable CERCLA/Settlements EPA tells 3rd Cir. nonsettling parties may be held liable for remedy Lower court barred recovery where EPA obtained relief in PA settlement 12 CERCLA/Settlements Occidental Chemical says §113 bars actions against nonsettlors Criticizes EPA practice of issuing orders to nonsettlors despite 'complete relief' Solid Waste/Rates ALJ sets rate for Passaic authority's former transfer station operator Operating margin of 30.4 percent is appropriate for PenPac, ALJ says CERCLA/Jurisdiction EPA tells 3rd Cir. that appeal is moot because of incineration But PA citizens' group says further EPA remedies may also pose a nuisance Community Right-to-Know Shin approves Spartan Auto Care settlement on survey Facility to pay $600 for alleged failure to submit 1996 Community Right to Know Survey Table of Contents from May 11, 1999 issue of New Jersey Journal of Environmental Litigation (Table of Contents of earlier issues follows this issue.) Minimum Standards DEP says Brownfield rules provide 'reasonable, consistant' approach Tells Appellate Division that regulations are consistent with legislative goals of Act Waste Flow/Retroactivity Supreme Court says retroactivity applies to cases in pipeline Penalties for out-of-state shipment of waste must be rescinded, court declares Freshwater Wetlands Appellate Div. finds structures are within exemption for projects Addition, dock and in-ground pool fall within exemption for projects prior to 1988 Statute of Limitations Panel says Crest Foam's cause of action accrued with coverage denial Rejects insurer's argument that accrual came with administrative consent order Freshwater Wetlands Appellate Div. reverses finding of FWPA inverse condemnation Says DEP should have gotten opportunity to ameliorate owner's alleged loss Waterfront Development ALJ says DEP did not amend prohibition of docks in habitat Despite thorough study of boats and shellfish, DEP did not delete prohibition, judge states CAFRA ALJ finds no 'taking' after petitioner admits entire site is dune Petitioner also says she has no basis to contest that dune will be adversely impacted Wetland Shinn says amendment of settlement does not alter fill limit Denies third-party hearing to township challenging amendment that allows new design CAFRA Judge orders DEP to publish new CAFRA rule in July Rule must be closely coordinated with State Development and Redevelopment Plan Table of Contents from April 20, 1999 issue of New Jersey Journal of Environmental Litigation (Table of Contents of earlier issues follows this issue.) Waste Flow/Retroactivity DEP tells Supreme Court that waste flow retroactivity is not moot 'Partial' settlement with Fiore does not justify dismissing DEP's appeal, DEP says Waste Flow/Retroactivity Fiore says retroactive application of waste flow rules is moot Consent judgment renders case moot and without public interest, brief asserts Waste Flow Appellate Div. says state is not liable for breach of contracts Rejects argument that state should assume damages following Atlantic Coast Demolition CERCLA/Settlement Judge approves $31.7-million CERCLA settlement with Grace Grace is successor to Rare Earths Inc. where radioactive Thorium was byproduct CERCLA/Intervene Judge says Wayne has no right to intervene in Grace case Intervention requires contractual, statutory or common law support, he explains Waste/Bidding Supreme Court denies USA Waste's petition on bidding challenge Appellate Div. allowed East Orange's acceptance of bid because of 'patent error' Solid Waste ALJ affirms $1.1-million penalty for excess waste processing DEP said National Transfer processed in excess of 80 tons a day beyond its permit NPDES Shinn finds executive is liable for $7,855,000 for NPDES excesses Adopts initial decision that also found sewer company liable for $7,873,000 Monitoring Shinn approves $43,000 settlement with Passaic Valley Sewerage DEP alleged failure to continuously record CO and O2 Odors Shinn adopts $2,600 settlement of garbage odor penalty assessment DEP alleged three violations by Recycling and Salvage Corp. Following is Table of Contents from the April 6, 1999 issue New Jersey Journal of Environmental Litigation Solid Waste Shinn rejects reduction of landfill penalty from $190,000 to $22,700 Says deterrence factor has to be considered in penalty assessments CAFRA Groups move to reactivate case seeking action on CAFRA Say DEP process to adopt a rule in satisfaction of CAFRA is 'way off trac' Insurance Supreme Court: Guaranty Assn. not liable for out-of-state business Environmental claim of company whose principal place of business is not NJ is not covered Waterfront Development Appellate Div. says Act preempts local ordinance on docks Coastal rules establish comprehensive scheme for siting and design of docks, it rules Freshwater Wetlands Shinn rejects third-party hearing in effort to have 150-foot buffer Says DEP must comply with 50-foot buffer at time of application approval Waterfront Development ALJ cites fact issue on extent of 'closure zone' for shellfish Denies summary judgment on whether area is exempt from prohibition of docks Pollution Exclusion Lloyd's tells PA court that regulatory estoppel violates due process Says NJ Supreme Court did not afford full opportunity to litigate doctrine's applicability EPA Pemits EPA tells 3rd Cir. that injection conditions prevent migration Fluid injected into ground will not be forced into drinking water, agency says Pollution Exclusion In this issue: Opinion on coverage for non-intentional discharge Appellate Division finds insured did not know pollutant was environmentally harmful Landfill Fund Shinn finds landfill did not diminish value of residence GEMS landfill had little, if any, effect on value of house that sold quickly, ALJ said
Following is Table of Contents
from the March 16, 1999 issue of
New
Jersey Journal of Environmental Litigation
S.1070/Minimum Standards
Petroleum Council says S.1070 calls for site specific risk-based
criteria
Amicus brief argues that DEP frustrates legislative intent
by failure to adopt standards
S.1070/Minimum Standards
Consultant contends DEP inaction is causing 'tremendous'
problems
2B Environmental wants Ground Water Quality Standards re-evaluated
CERCLA/Settlements
U.S. appeals ruling that nonsettlor need not pay because
of settlement
Court found EPA received complete relief for PA Superfund
site in prior settlement
Pollution Exclusion
Panel determines non-intentional discharge allows coverage
Insured did not know pollutant to be environmentally harmful,
panel says
Waterfront Development
ALJ finds Waterfront Development Act applies to scenic
views
Denies application for two buildings that would block Manhattan
skyline in Weehawken
CAFRA
Judge orders DEP to furnish bi-weekly list of CAFRA applications
But denies summary judgment to environmental groups seeking
expedited rules
Air Quality
Precision Hard Chrome agrees to $5,000 settlement
DEP alleged company exceeded chromium emission standard in
stack test
Air Pollution
Recycling and Salvage agrees to $2,600 penalty for odors
Odors from rotting garbage were allegedly emitted in quantitites
that resulted in air pollution
Monitoring
Passaic commission agrees to $43,000 settlement for monitoring
Sewerage Commissioners allegedly failed to continuously record
CO and O2
Community Right to Know
ALJ approves settlement of alleged failure to comply with
survey
Spartan Auto Care agrees to pay $600 for alleged failure to
submit 1996 survey
(Subscribers received unbiased summaries of these cases and full texts of many of the rulings, including not-for-publication decisions, within days of being filed. Since most of these filings occurred within the previous two weeks, subscribers found in one place important, current environmental law developments in their respective state.) HOME