New Jersey

November 25, 2013

Carlstadt-South Hackensack berm the subject of Sandy damage lawsuit filed by property owners

Source:, November 21, 2013
By: Meghan Grant

A group of four property owners, including Cheridan Realty LLC that owns a commercial building on Commerce Road, are suing the owners of the Kane Tract in Carlstadt, claiming improper berm construction was to blame for the severity of the damage suffered due to Hurricane Sandy, a storm experts called unprecedented.

Owners of two Little Ferry garden apartment complexes, Williamstowne Manor Inc. and Liberty Bell Village, Cheridan Realty LLC and one Hackensack apartment building, Albarelli Hackensack Associates, and its insurance company, Greater New York Mutual Insurance Company filed the lawsuit, which names 10 governmental agencies and companies as defendants – the New Jersey Department of Environmental Protection (NJDEP), New Jersey Meadowlands Commission (NJMC), EnviroFinance Group LLP, Earthmark NJ Kane Mitigation LLC and others.

The Kane Tract

The Richard P. Kane Natural Area, the 254-acre section of wetlands on the Hackensack River in Carlstadt and South Hackensack is home to two berms, one of which gained notoriety during Sandy due to an initial emergency report being issued the night of the storm surge that a levee allegedly was breached, later identified as a berm.

The lawsuit, identifying the Kane Tract by name, builds upon the conviction that the berm had broken. It alleges contractors took shortcuts in their building of the berm that put neighboring properties at risk and state environmental and land agencies were lax in their oversight.…

November 22, 2013

Roxbury landfill owners ordered to pay state

Source: Star-Ledger (NJ), November 16, 2013
Posted on:

A Superior Court judge has ruled that the owners of the Fenimore Landfill in Roxbury are responsible for all “recoverable costs” associated with the closure of the facility.

The order by Judge Thomas Manahan, written Thursday and released yesterday in Morristown, finds that the landfill owner, Strategic Environmental Partners, violated terms of the consent order that allowed the landfill to reopen.

But the judge’s ruling does not specify an amount. It says a hearing must be scheduled within 45 days to determine the costs Strategic would pay to the state Department of Environmental Protection.

The DEP seized the landfill in June after thousands of complaints about rotten-egg-like, hydrogen sulfide odors and associated health problems. The agency is expected to submit a figure that would reimburse the state for the cleanup and closure costs.

But in a hearing yesterday, Manahan held out hope the DEP and Strategic can make “some attempt at resolution.” The agency and company are battling each other in state and federal courts in a total of eight civil cases in which the issues frequently overlap.

Strategic “may be somewhat under the gun financially,” the judge said, adding that the “multi-million-dollar expenses” needed for the cleanup and closure might be paid more easily if there were a settlement of the litigation.

Manahan’s ruling also terminated the consent order that permitted the landfill’s reopening in 2011 with plans to cap it with additional debris, close it and build a solar facility there. The landfill had been closed since 1977.…

September 20, 2013

No Coverage for Claim Expenses Where Insured Did Not Obtain Prior Written Consent of Insurer

Source:, September 18, 2013

The United States District Court for the District of New Jersey, applying New Jersey law, has held that a policy provision requiring written consent of the insurer in order for claims expenses incurred by the policyholder to be reimbursed is unambiguous. Paulus Sokolowski & Sartor, LLC v. Cont’l Cas. Co., No. 12-7172 (D.N.J. Aug. 30, 2013). Wiley Rein represented the insurer.

The insured, a design and engineering firm, was retained during the construction of a residential townhouse community. The developer of the community and the community’s condominium association later sued the firm for professional negligence, seeking damages for construction defects at the site. The firm sought coverage under its architects and engineers professional liability policy. The insurer provided a defense and ultimately settled the claims against the firm. The firm later sought reimbursement for claim expenses it incurred when its employees assisted the insurer and its engineering expert. The insurer denied the request for reimbursement on the grounds that the firm had not obtained written consent prior to incurring the expenses and that the firm had a duty to assist in the defense. The firm filed suit in New Jersey state court, which the insurer removed to federal court.

The court dismissed the firm’s breach of contract claims, determining that the policy provision requiring the insurer’s written consent prior to the policyholder incurring claim expenses was unambiguous, and that the firm’s complaint had conceded that there had been no explicit consent from the insurer. In reaching this conclusion, the court noted that interpretive principles calling for insurance policies to be interpreted against the insurer are less applicable where the policyholder is a large business with the resources to bargain for particular policy provisions, as was the case with the insured. The court additionally dismissed the firm’s claims for unjust enrichment and quantum meruit because the express written contract covered the issues in dispute.

The court also dismissed the firm’s claims for breach of the duty of good faith and fair dealing, breach of fiduciary duty, and bad faith. The court concluded that the firm had failed to allege facts demonstrating that the insurer had bad motive or intention and that the implied covenant of good faith and fair dealing could not override the express terms of a contract. The court further held that the insurer did not owe the firm a fiduciary duty in the context of reimbursing claim expenses.

The opinion is available here.


September 19, 2013

A cautionary insurance tale for project owners

Source:, September 4, 2013
By: Stanley A. Martin, Duane Morris LLP

The contractor’s excavator digging the foundation for a new building undermines the abutting building, which collapses, and a worker is injured. In the subsequent lawsuits, one by the abutter and one by the injured worker, the project owner tenders the defense to its GL carrier. The carrier eventually gets a court decision, that there is no coverage due to the subsurface soil movement exclusion. In the circumstances of a clear accident, and clear personal injury and damage to property, is this correct? Yes.

The appellate decision (subscription required) in this New Jersey case[1] does not explain why the owner had to defend itself and was not able to insist on a defense by the contractor or its subcontractor. But there was common ownership of the project owner entity and the contractor, and one can only surmise that the apparent absence of contractual indemnity or insurance obligations arose from this relationship.

The critical point is that standard exclusions in project owner policies – for damages arising from “movement of land or earth,” for personal injury claims of a contractor/subcontractor employee, and for property damage arising from work of a contractor/subcontractor – will be upheld. In the absence of a builder’s risk policy or other specific coverage or endorsement, project owners continue to rely on the indemnity and insurance requirements of standard form contracts. If there is no indemnity obligation, if the project owner is not an additional insured on the contractor’s policy, and if the owner is relying upon typical GL and property coverage, that owner will be defending itself with its own money from personal injury and property damage claims arising from construction.


September 13, 2013

Interstate pollution: Smother my neighbour

Source: The Economist, September 7, 2013
Posted on:

How much should upwind states care if their filth blows next door?

“ON SOME days even if we shut down the entire state, we would be in violation of some health standards because of pollution coming over from other states.” Thus the late Senator Frank Lautenberg griped about foul air blowing into New Jersey. For years, upwind states could dump part of the cost of pollution onto their neighbours, while reaping all the benefits of the factories that caused it. Though banned by the Clean Air Act, such smother-my-neighbour policies persist.

The Supreme Court may soon weigh in, however. It has accepted appeals by the Environmental Protection Agency (EPA) and the American Lung Association concerning the agency’s 2011 Cross-State Air Pollution Rule (CSAPR), which controls interstate emissions that cause ozone and fine-particle pollution.

Under the law states are responsible for cleaning their own air. They must also reduce emissions that “contribute significantly” to another state’s dirty air. The CSAPR is the latest attempt to give teeth to this “good neighbour” requirement. The rule’s scope is vast, covering 28 eastern and midwestern states. Power plants there were found to emit too much sulphur dioxide and nitrogen oxides, pollutants that can travel long distances and harm people.…

July 30, 2013

Dioxin removal to begin on Passaic River

Source:, July 29, 2013
By: Scott Fallon

After a month’s delay, preliminary work to remove dioxin-laden mud from the banks of the Passaic River next to a popular county park is scheduled to begin Tuesday, according to the companies funding the $20 million project.

The delay came when workers were unable to open the Bridge Street Bridge in Newark, preventing barges from hauling mud to a processing facility down river.

While the bridge is still not fixed, workers will be able to open it manually once a day starting early Tuesday. Barges will be able to bring equipment to the site about nine miles north of the bridge where the highest levels of dioxin ever recorded at the river’s surface sit just feet away from Riverside County Park.

About 20,000 cubic yards of contaminated mud will be scooped out of the river and eventually hauled out. But the bridge must be fixed first. The companies are still waiting for new motors to be delivered and installed on the busy bridge, which was damaged during Superstorm Sandy. It connects Newark to Harrison and is owned by Essex and Hudson counties.

“The first barge containing dredged material would be transported back downriver after the bridge is repaired,” said Jonathan Jaffe, a spokesman for Cooperating Parties Group, a collection of about 70 companies that either polluted the river or inherited the liability of past polluters and are paying for the cleanup.

The Bridge Street Bridge is one of 11 mostly low-lying bridges along the Passaic that the barges will have to travel under.

The companies had hoped to finish work by the Head of the Passaic Regatta, a major crew competition on Oct. 12 that has drawn more than 1,000 rowers in the past. With work scheduled to go beyond that date, contractors will stop work and secure all of their equipment before the race.

Despite a history of pollution that dates to the late 18th century, the Passaic is popular among competitive rowers because of its calm current and lack of commercial boating.


July 9, 2013

Honeywell begins next round of chromium cleanup on West Side

Source:, July 7, 2013
By: E. Assata Wright

Environmental work will culminate in Bayfront groundbreaking, new waterfront development

Honeywell International Inc. recently announced that it has begun the next phase of chromium cleanup at sites along Jersey City’s West Side, work that will culminate in the construction of the Bayfront development, a planned mixed use residential community the city hopes will be a linchpin to waterfront development along the Hackensack River. According to officials from Honeywell, who briefed area residents on its environmental cleanup plans at a public meeting held on June 26, areas that are to be redeveloped for residential use will be remediated by removing contaminated soil that is currently on the site. Areas that are to be used for open space and park land will be capped.

Cleanup of the site is part of a 2008 settlement agreement Honeywell reached with the city and community groups to remediate 100 acres of chromium-contaminated land along Route 440 and the Hackensack River that was once home to the Mutual Chemical Company. The affected site also borders the Droyer’s Point section of Society Hill.

Under the 2008 agreement, the city agreed to turn over 35 acres of municipal land to Honeywell and the company agreed to cover the cost of the environmental cleanup, which is being conducted under the watch of a federal monitor. In addition, Honeywell was given the right to develop the entire 100-acre site, but was required to split the profits from the future development with the city 60 – 40. (Honeywell will get 60 percent of the profits from the Bayfront development; the city will get 40 percent of the profits in exchange for the 35 acres of municipal land the city turned over to Honeywell to make the development possible.)…

June 14, 2013

Companies to pay NJ in River Pollution Case

Read here about the millions of dollars that New Jersey will receive from several companies to settle the Passaic River pollution case.…

June 12, 2013

Portland power plant owners settle pollution lawsuit

Source:, May 15, 2013
By: Peter Hall

Coal-fired generating units will cease operation six months earlier than scheduled

The Portland Generation Station will close June 1, 2014, about six months earlier than planned. (MONICA CABRERA, The Morning Call / June 15, 2011)

The owner of a power plant in Upper Mount Bethel Township has agreed to stop burning coal as part of a settlement in a lawsuit by two downwind states over air pollution.

NRG Energy, which acquired the Portland Generating Station last year in a merger with GenOn, will shut down two coal-fired generating units by June 2014 as part of the settlement with New Jersey and Connecticut, the company said in a statement Wednesday.…

May 22, 2013

Are Commercial Buildings and Public Buildings a Lead-Paint Hazard? Contractors Could be Impacted by Renovation Regulations Contemplated by EPA

Source: Environmental Law Solutions, May 13, 2013
By: Andrew Brought

If you manage or perform renovations, repairs, or painting activities on the exterior or interior of public building or commercial buildings, you should be aware that EPA is currently evaluating whether and how to regulate such activities in public buildings or commercial buildings constructed before 1978 that pose lead-based paint hazards. On Monday, May 13, 2013, EPA issued a notice in the Federal Register that it is seeking public comment on this topic until July 12, 2013, and will host a public meeting at EPA’s headquarters on June 26, 2013.

In April 2008, the EPA issued final regulations covering child-occupied target housing, which includes residential structures and most pre-1978 housing, as well as a subset of public and commercial buildings where young children spend a significant amount of time (known as the Lead Renovation, Repair, and Painting (RRP) Rule). The RRP Rule requires, among other things, that contractors and subcontractors be properly trained and certified and use safe work practices to minimize lead dust. The EPA has begun aggressively enforcing the RRP Rule. On May 2, 2013, EPA announced 17 enforcement actions for violations of the RRP Rule in Missouri, Nebraska, Michigan, Indiana, Florida, Tennessee, Maryland, Pennsylvania, New Jersey, New York and New Hampshire. EPA initiated a similar sweeping enforcement action in November 2012 against 16 companies in a number of states including Kansas and Illinois.