June 30, 2017 – Soil Safe, Inc., a recycling company for which Rich & Henderson acts as general counsel, successfully defended a Resource Conservation and Recovery Act’s (“RCRA”) citizen suit filed in the U.S. District Court for the District of New Jersey Camden in 2014 by the Delaware Riverkeeper Network (“DRN”). Tim Henderson worked closely with trial counsel Chris Gibson and Patrick Flynn, both with the New Jersey firm, Archer, on the strategy and preparation of the defense. Judge Bumb presided over a four day bench trial in March, 2017. On June 30, she issued the decision which found in favor of Soil Safe on all counts. In rejecting DRN’s claims, Judge Bumb determined that Soil Safe’s petroleum-contaminated soil recycling operations created legitimate products and not solid waste, that Soil Safe’s operations create remedial capping and structural fill products which are used as intended to turn property filled with dredge spoil into useable land, e.g., for a county park, an equestrian park and construction of buildings for industrial/ commercial operations, and that the DRN introduced no credible evidence that the Soil Safe product created an imminent and substantial threat to the environment. The decision provides important guidance for navigating what Judge Bumb refers to as the ‘dense, turgid, and circuitous,'” RCRA framework that governs the distinction between proper recycling and discarding of nonhazardous secondary materials. Consistent with the rulings of a number of federal cases she cites, Judge Bumb concludes that “material being used for its intended purpose is not being ‘discarded,'” and, therefore, is not a solid waste.
June 2017 – In the case of Murr v. Wisconsin, the Supreme Court held that a land use regulation preventing the Murrs (Petitioners) from selling one of their two adjacent lots for development was a legitimate exercise of state power and not a Fifth Amendment taking. The Wild and Scenic Rivers Act of 1972 resulted in the adoption of state and local regulations in 1976 which were designed to protect designated rivers, including the St. Croix River which borders the two adjacent lots. The 1976 regulations included a provision that prevents the use or sale of adjacent lots under common ownership as separate building sites, unless each site has at least one acre of land suitable for development. The Murrs acquired the lots in the 1990s. The Court’s decision expanded the traditional means of characterizing a “property” for purposes of a takings claim beyond just state and local regulations to include additional considerations such as the reasonable expectations of the landowner’s use of the property, the property’s physical characteristics, its topography, and the surrounding environment. The Court reasoned that in addition to the Murrs’ knowledge of state and local laws that effectively merged their two lots, the Murrs could not have reasonably expected to sell or develop their lots separately because of their size and position by a river.
January 2017 – Tim Henderson was the program co-chair of the Environmental Law, Land Use, Energy and Litigation section for the 34th Annual National CLE Conference in Snowmass, Colorado. He also facilitated a session addressing climate change, the 2015 Paris Accord, the Clean Power Plan, adaptation and resiliency tools, and change predicted by the Trump administration. Information for the 2018 National CLE Conference can be found at: http://nationalcleconference.com/programs/.