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Disposal of Contamination = Disposal of Evidence. Be Careful What You Throw Away!

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by Mitchell J. Klein

In a recent unpublished case, the Superior Court of New Jersey held that the Plaintiff in a CERCLA case had committed spoliation when, during the course of the remedial activity, it disposed of various contaminated materials. See Pollitt Drive, LLC v. Harvey Engel.

While the case does not establish any precedent, it certainly serves as notice to anyone involved in remedial activities. The owners, operators, consultants, and contractors involved in remediation will need to recognize that enterprising defense counsel may raise these issues to limit, or even prohibit, cost recovery for the remedial activities at issue.

Generally speaking, if a party to a lawsuit should reasonably have anticipated the litigation, it had an obligation to preserve the evidence in its possession, even if the litigation had not yet commenced. The failure to preserve evidence when litigation should have been anticipated can lead to drastic sanctions, including severe limitations on the use of evidence, jury instructions that the evidence was presumptively contrary to a party’s claims, or even dismissal of the complaint or answer.

In the environmental setting, if there is any thought given to seeking reimbursement or indemnification from another person for the costs involved in a cleanup, it has long been good practice to effectively and properly preserve at least some of the soil or water samples in order to prove that the contamination did exist and at the levels claimed. This is also true if a government or citizen suit plaintiff intends to use the sample results to prove the necessity of an injunctive order compelling clean up. Aside from spoliation issues, failure to do so allowed the other side to challenge the accuracy and credibility of the data, reports, and claims.

The court here, however, went well beyond the idea that some samples should be maintained for re-testing or additional testing by the defendant. The court held that pipes, sumps, concrete flooring and other man-made objects should have been preserved, because the Plaintiff was going to use their existence and placements to show the fate and transport of the releases.

Typically, these types of structures and pipes (ubiquitous at industrial facilities) are photographed extensively during the remedial process, to show their locations and placement, and to show cracks, staining, or other evidence of releases. They are then properly disposed of, as they are likely contaminated and/or nonfunctional, or re-used if they are not.

This case, however, should make everyone involved in environmental remediation sit up and start re-thinking their SOPs. Do contaminated sumps, pipes, and storage tanks need to be preserved as evidence? ALL of them? The entire structure? The entire concrete floor? The costs of doing this would be enormous, from intact excavation through transport, through effective preservation over the course of years. At a large facility, these costs could exceed the cost of the remedial action.

Instead, can only pieces of the structures be kept? If so, which pieces? Can this entire issue be avoided by giving notice to the likely defendants, and offering to allow them to inspect and test themselves prior to disposal?

The case raises very significant issues that should be considered prior to undertaking the remedial actions.