Greetings colleagues and friends!

In recent months, the attorneys at Lieberman & Blecher have seen a surge in cases involving leaking underground storage tanks and related issues.  In light of this surge, we are dedicating a portion of this newsletter to topics related to underground storage tanks in order to help our readers remain aware of these important issues.  Below you will also find developments about landfill, wind turbine, and environmental insurance claims in which our firm is involved.  
 
NEW THIS MONTH:  We are introducing our "Ask An Environmental Lawyer" series.  If you have a general question about environmental legal issues, send them to [email protected], and with your permission, we will share them with our readers.  
 
As always, we invite you to continue the conversation by visiting and commenting on our environmental and land use law blog, or chiming in on LinkedInFacebook or Twitter.   
 
Sincerely,

MARCH 2012 NEWSLETTER

 

Leaking Underground Storage Tank Complaints Continue at L&B

 

For years, Lieberman & Blecher has represented homeowners and business owners with leaking heating oil tanks. Although the problem was not as severe when the State of New Jersey established a fund to assist property owners with cleanup costs, the rise in incidents and the economic recession have caused the fund to dry up.

 

Many individuals, businesses and condominium associations have retained Lieberman & Blecher to assist them with their leaking tank claims and these cases have increased since the Underground Storage Tank Fund announced that it would not be entertaining new applications.  Relief provided by Lieberman & Blecher often involves working with the property owner's insurance companies. In addition, claims can be made against former property owners if the discharge occurred or began some time in the past. When necessary, litigation is an available option to assist our clients in recouping these cleanup costs.

 

A video is available for viewing that addresses underground storage tanks at the Lieberman & Blecher website.  We have seen UST cleanup expenses range from the tens of thousands to nearly a million dollars.  It is important the property owners facing such contamination issues know and protect their rights.

Firm Pursues Insurance Broker on Behalf of Korean-owned Dry Cleaners in NJ

 

Lieberman & Blecher is pursuing the Korean Dry Cleaners Merchants Association insurance company on behalf of its clients. We have filed a tort claim against the company associated with the Korean Dry Cleaners Merchants Association that provides insurance for some of these dry cleaners here in New Jersey. The problem appears to be that some of these policies do not cover expenses associated with the release of dry cleaning fluid into the atmosphere. This dry cleaning fluid is called PERC and is very costly to cleanup if it enters the ground and even worse if it contaminates groundwater.

 

The real problem is that many people who own these dry cleaners do not speak English as their first language.  In the lawsuits filed on behalf of our Korean-owned dry cleaner clients, we assert that the warnings made by the broker to these business owners was not sufficient to warn them that potential environmental liabilities would not be covered by the insurance that they were purchasing. 

 

Small businesses and individuals have a right to expect that their insurance broker will look out for them and will help protect their interests.  In these cases, our clients expected that the insurance product they were purchasing would protect their small businesses in the event of an environmental release.  Now faced with costly environmental cleanups and insurers who simply say "you're not covered."

 

 

Suit Filed Against Waste Management Subsidiary for Contamination Emanating from Landfill in Burlington County, NJ
 
  

Living next to a landfill is never ideal, except maybe for seagulls. Lieberman & Blecher has just filed suit against a subsidiary of Waste Management, alleging damage and harm from the operation of one of their landfills in Burlington County. Our clients represent property owners in the immediate vicinity of the landfill.

 

New Jersey law provides very specific protections with regard to landfills.  In addition, landfills are generally known for exceeding their original or intended boundaries. Often, trucks bringing material to landfills are unable to distinguish the property lines, which may result in encroachments of the landfill material.

 

EPA data indicates that even municipal solid waste landfills that accept waste from homes and small businesses tend to contain contaminants such as wasted paint, lacquers, and other small amounts of hazardous chemicals that people typically discard regular trash. Batteries represent a typical source of contamination in this regard as well.

 

Leachate is the soupy mix that results when rain enters a landfill and mixes with these contaminants. After migrating into the groundwater and surface water, it leaves the site and is discharged into nearby rivers, streams, and drinking water supplies.

 

Lieberman & Blecher has a long history of representing businesses and individuals with regard to landfill issues.  We have represented businesses and municipalities in Superfund and related actions, as well as individuals whose properties have been impacted by contamination migrating from landfills.

Have an Underground Storage Tank?Make Sure That It Is Insured

 

Over the last ten years, homeowner insurance policies in New Jersey have begun to eliminate coverage for underground storage tanks in the event that they leak. Where coverage is available, a carrier may provide for the expense of the cleanup.  These policies often also provide the property owner with a legal defense in case litigation ensues.  The problem, however, is that many homeowners are unaware that this coverage is no longer available. Let's face it:  people frequently do not read that fine print and that is basically where this notification is found.

 

It is always a bad idea to own a property with an Underground Storage Tank and not have insurance in the event that it leaks. Ask your insurance company if a rider is available or if another product is available to cover you. While some tank services provide some type of indemnification product, frequently this is not enough and will not cover third-party claims. In other words, claims for ground water contamination or contamination to neighboring property owners will typically not be part of the tank servicers' coverage. This is important because third party claims tend to be the most expensive portion of a cleanup.

 

The bottom line is this -- if you are a property owner and you have an underground storage tank, try to do whatever you can to make sure that it is insured.

 

 Homeowner Association Transition Impacted by New Case Law

 

Transition refers to the process of transferring ownership and custody of the common elements of a development from the original developer to a community association. When this occurs, there is often a determination as to whether the common elements were constructed in accordance with the original specifications and applicable building standards.

 

When common elements are found to be deficient, litigation often results, and insurers are called upon to defend and indemnify the developer.  In East Coast Residential Assoc. v. Builders Fire Source, et al., the court considered whether or not a developer's insurance company was required to pay for defects associated with rotting decks.  Although the case involved a rental building rather than a homeowners association, the legal concepts are somewhat universal. The trial court found that the insurance company had an obligation to defend the developer and to contribute to the settlement.

 

However, the appeals court reversed that decision, finding that there would be no coverage if the alleged property damage occurred after the insurance coverage had been terminated.  In this case, because the developer was not able to demonstrate that the property damage occurred during the policy period, the insurance company was not found liable, and the judgment against it was reversed.

 

Transition-related litigation often involves related insurance claims brought by the developer. These claims can be as important to community associations as they are to the developers.  Often times, the ability of the developer to correct defects uncovered during transition depends on the availability of insurance coverage.

 

 
Proposed Wind Turbine Rule Must Be Carefully Considered
 

 

Currently pending before the New Jersey Department of Environmental Protection (NJDEP) is a proposed rule concerning wind turbines. The rule would allow wind turbines to be constructed on piers to be used as power sources for operations associated with the pier.


In light of the firm's work in the wind turbine space, our attorneys know first hand the importance of adequately weighing the pros and cons of locating these projects. First, it is important that turbines be situated in such a way that minimizes or removes potential impact on neighboring property owners.  Their aesthetic can become a major concern, they must have a sufficient fall zone, and they cannot create a noise or other nuisance.  All of this requires local input and veto power for each proposed turbine - something glaringly absent from the proposed rule.


Lieberman & Blecher is special counsel to a New Jersey municipality that has been opposing a proposed turbine for over a year. In that case, the NJDEP completely ignored the negative impacts of the turbine and showed no concern for local residents.  As is almost always the case in siting infrastructure projects: stakeholder and community buy-in is essential.

It seems that the proposed turbine rule should be amended to include local community involvement. It is hard to understand how the NJDEP can expect local officials to sit on the sideline when potentially bad decisions are emanating from Trenton.
 
Ask An Environmental Lawyer

 

 

Q.        Dear Environmental Lawyers:

I am buying a home in New Jersey and I am very concerned that an underground oil tank may be on the property. What can I do to protect myself?

 

A.        Buying a home can be nerve wracking enough without having to worry about the various hidden environmental issues that may befall a potential home owner. However, there are several steps you can take before you purchase a property to put your mind at ease.

 

 First, hire a licensed home inspector to look for any red flags such as pipes that lead to nowhere, which could be indicative of a former tank.

 

Second, hire an environmental consultant to perform a sweep of the property. This process can show if there are unidentified objects under the ground that could be a potential tank.

 

Third, take a trip to the local municipal office to perform a file review of all the documents concerning the site. Keep an eye out for any documents talking about a tank or even a permit which allowed a previous owner to abandon a tank in place on your property.

 

Finally, make sure you hire an attorney who understands both real estate and environmental law. The attorney can review the seller's disclosure sheet, home inspection report, environmental consultant's findings and any documents you find at the municipal office, and identify any cause for concern. The attorney can also protect you by providing strong language in your real estate contract to allow you to cancel the purchase if you discover a potential environmental hazard on your property. Lieberman & Blecher has the experience you are looking for to lead you through this complicated process.

 
Tune in to the NJDEP Falcon Cam
 
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About Lieberman & Blecher 

 


Our Offices:

10 Jefferson Plaza
Princeton, New Jersey 08540

845 Third Avenue, 6th Floor
New York, NY 10022

Telephone:  732.355.1311

In This Issue
Undergorund Storage Tank Complaints Continue
Dry Cleaners Duped by Insurance Brokers
Suit Filed Against Waste Management Subsidiary
Make Sure Your Underground Storage Tank Is Insured
Homeowner Association Transition & the East Coast Residential Case
Proposed DEP Turbine Rule Must Be Carefully Considered
Introducing: Ask An Environmental Lawyer!
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Firm Launches

New Website & Blog

 

Lieberman & Blecher recently launched a fully redesigned website this that includes additional resources for our clients, colleagues and friends.  We also now have a law blog that will bring you current news and developments relating to our various practice areas. Check it out!