Source: http://www.lexology.com, September 6, 2012
By, Steven M. Siros, Jenner & Block
On September 4, 2012, a federal judge denied Arcadis U.S. Inc.’s (“Arcadis”) request for summary judgment in a CERCLA lawsuit relating to the disposal of contaminated concrete at a demolished Ford Motor Company plant in New Jersey. In the course of demolishing its assembly plant located in Edison, New Jersey, Ford is alleged to have entered into a contract with Edgewood Properties, Inc. (“Edgewood”) pursuant to which Ford agreed to provide Edgewood with 50,000 cubic yards of concrete in exchange for Edgewood hauling it off site. Edgewood hauled the concrete to seven properties it was developing where the concrete was used as fill material. Unfortunately, the concrete that Edgewood hauled off-site was found to contain elevated concentrations of PCBs. As part of the litigation relating to the remediation of these seven contaminated sites, Edgewood filed counterclaims against several other parties, including Arcadis, under CERCLA and New Jersey’s spill act.
Arcadis was apparently retained by Ford to provide regulatory compliance assistance related to disposal and/or reuse of the crushed concrete under New Jersey’s ISRA program. In its summary judgment motion, Arcadis characterized its activities at the site as limited to providing consulting services related to ISRA compliance, without having had any involvement in the off-site disposition of crushed concrete. However, Edgewood responded to Arcadis’ argument by offering evidence that Arcadis played a critical role in the decommissioning, demolition and ultimate distribution (i.e., disposal) of the PCB-contaminated concrete. Although the court was careful to note that it was not making any findings as to ultimate liability, the court did find that Edgewood had raised an issue of material fact that precluded Arcadis from obtaining summary judgment on Edgewood’s CERCLA arranger liability claims.
It will be interesting to see how this case plays out especially since the basis for Edgewood’s arranger liability claim is that Arcadis took “intentional steps to dispose of hazardous substances … based on Arcadis’ extensive communications with Ford about the need for NJDEP variance, development and approval of sampling and categorization plans, oversight of the concrete operation and direct involvement with Ford regarding off-site distribution of concrete” which really is not that different than what environmental consultants do on a daily basis at thousands of sites across the country. Clearly, this is a case that will be carefully followed by environmental consultants across the country. Please click here to see a copy of the court’s opinion.