Engineering Firm Not Liable for Failing To Disclose Air Emission Testing Results

In Reeser v. NGK North American, Inc., No. 3275 EDA 2008 (Pa. Super Ct. Jan. 24, 2011), the a Reading, PA resident claimed he developed lung cancer due to exposure to beryllium emissions from a nearby plant. He filed a toxic tort lawsuit against both the facility AND the engineering firm that the firm retained to test and monitor the facility emssions. The plaintiff argued that the  engineering firm knew that the purpose of the testing was to investigate compliance with regulatory emission standards designed to protect public health and that the engineering firm breached a duty to individuals in the community by not disclosing the test results to any government agency and nearby residents.

The trial court granted summary judgment to the engineering firm and appeal court affirmed, holding that the engineering firm had no duty to report its test results to anyone other than its client (the facility owner). Moreover, the court noted that the plaintiff fif not allege that the engineering firm had negligently performed its contractual duty of monitoring and accurately reporting the emissions results to the facility owners.
Of course, even if the engineering firm failed to properly carry out its contractual duties, I suspect the court would have found that there was no duty to the plaintiff.

Court Reverses Revocation of NFA Letter

Levelor operated a vinyl blind manufacturing facility in Hoboken from 1951 to 1988. By way of merger, Dean Witter acquired Levelor as wholly-owned subsidiary in 1988. This transaction triggered ISRA and Levelor entered into adminstrative consent order with NJDEP. In 1990, Levelor sold property. Investigation detected VOCs in soil and groundwater, and PHC above residential standards in soils.

Levelor proposed remedy consisting of engineered cap and declaration of Environmental Restrictions consisting of Classification Exception Area (CEA) restricting use of groundwater.  Calpro initially refused ti agree to restrictions and then filed for bankruptcy but eventually entered into settlement allowing proposed remedy to be implemented. NJDEP issued NFA in 1998.

Prior to issuance of NFA, Calpro entered into Memorandum of Agreement with NJDEP in 1998 to implement redevelopment plan for site but NJDEP terminated in 2000 after Calpro railed to conduct any remediation at the site. In 2001, a related entity to Calpro,  Monroe Center Development (MCD), entered into another MOA to develop site for mixed use. NJDEP conditionall approved remedial plan in 2002 that would have provided for removal of cap and additional soil/groundwater remediation. In 2004, MCD discovers more extensive VOC contamination in soil and groundwater than previously known. In April 2009, NJDEP rescinds 2001 MOA for MCD's failure to implement remedial measures NJDEP  and then rescinds 1998 NFA letter in June 2009. NJDEP then issues a Spill Act Directive to plaintiff (as successor of Levelor and Dean Witter).

Plaintiff argues that the NJDEP's letter revoking  NFA was not supported by any specific findings of fact, and was therefore arbitrary and capricious. Court agrees, saying it was not the court's job to "scour the record" to ascertain if there was a basis for the agency's action. Ct says that NJDEP did not adequately articulate the basis for its conclusions that the plaintiff had "failed to adequately investigate the site" and to disclose the true levels of the contamination. Court said NJDEP failed to explain why recission was the proper regulatory response eleven years after its NFA had recognized elevated levels of VOCs in groundwater and why the original remedy was no longer protective. The court also said that NJDEP did not explain why after issuing the NFA based on non-residential use, the agency then approved removal of the cap in connection with a residential development that was not originally contemplated. While NJDEP subsequently tried to address these deficiencies in its briefs, the court said the NJDEP should have supported its conclusions when it decided to revoke the NFA letter.

Accordingly, the court vacated the recission of the NFA letter and remanded the matter back to the NJDEP for further consideration, including the opportunity for the plaintiff to submit supplemental materials prior to issuing another final determination.    Morgan Stanley Services Corp. v NJDEP, 2011 N.J.Super. Unpub. LEXIS 182 (App. Div. 1/26/11)

Target Corp Agrees to Pay $22.5MM for Haz Waste Violations

Target Corp. has agreed to pay $22.5 million to settle a multiyear government investigation into the alleged dumping of hazardous waste by the retail chain.

I previously posted about how lenders frequently overlook environmental compliance for retail or commercial properties on my EDR Schnapf Judgment blog. See http://commonground.edrnet.com/posts/ba6464cfa8, http://commonground.edrnet.com/posts/899933f985, http://commonground.edrnet.com/posts/0e841cd373

The violations identified by prosecutors included improper storage, transportation and disposal of bleach, paint, pesticides, batteries, lightbulbs and other hazardous materials. Prosecutors accused the company of cutting corners for the bottom line. Chemicals returned by customers or found to be defective were poured down the drain, tossed into dumpsters and trucked to landfills not equipped for hazardous waste. Stores also kept incompatible and combustible liquids like ammonia and bleach side-by-side on shelves and poured them into dumpsters mixed together, creating fire and other safety hazards
As a result of this investigation, prosecutors have launched investigations of other large retailers.

Complete story from LA Times is at: http://www.latimes.com/news/local/la-me-target-settlement-20110205,0,7700027.story