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Lowenstein Sandler LLP

Mark S. Heinzelmann

Mark S. Heinzelmann

Associate

Expertise

  • Environmental Law & Litigation
  • Litigation
  • Products Liability & Specialty Torts
  • Real Estate

WSG Practice Industries

Activity

Lowenstein Sandler LLP
New Jersey, U.S.A.

Profile

Mark counsels business clients on regulatory issues, dispute resolution, and federal and state court litigation. Mark is well-versed in the current enforcement and regulatory agendas driving the New Jersey Department of Environmental Protection.

Prior to joining the firm, Mark served as a Deputy Attorney General for the State of New Jersey’s Department of Law & Public Safety, Division of Law, and Environmental Enforcement and Cost Recovery department. In that capacity, he assisted the Department of Environmental Protection in recovering unpaid costs for the remediation of contaminated sites and was involved in enforcing the Spill Compensation and Control Act, Water Pollution Control Act, Underground Storage Tank Act, Industrial Site Recovery Act, Brownfield and Contaminated Site Remediation Act, and Site Remediation Reform Act. He advised on the establishment and enforcement of liens and executed enforcement actions in municipal court and the Office of Administrative Law. Mark also worked extensively on issues involving the New Jersey Spill Compensation Fund and Hazardous Discharge Site Remediation Fund claims programs and advised on the legal impact of new hazardous substance remediation standards.

Mark has handled all aspects of environmental litigation. Notably, he tried a case involving complex expert testimony related to Superstorm Sandy before the Office of Administrative Law. He also argued numerous appeals in the Appellate Division, including: Cranford Development Associates v. Township of Cranford, 2016 N.J. Super Unpub. LEXIS 955 (April 26, 2016 App. Div.); CD&L Realty, LLC v. State, 2015 N.J. Super. Unpub. LEXIS 1832 (July 30, 2015 App. Div.); and Drytech, Inc. v. State, N.J. Super. Unpub. LEXIS 2750 (December 29, 2016 App. Div.). In Morristown Assocs. v. Grant Oil Co., 220 N.J. 360 (2015) before the New Jersey Supreme Court, Mark authored a brief advocating the Department of Environmental Protection’s position.

Prior to joining the Division of Law, Mark served as a law clerk to the Hon. Edward M. Coleman, P.J.Ch., Superior Court of New Jersey, Chancery Division. He also held internships on the 9/11 Commission Monograph Project, in the New Jersey Office of the Public Defender, and in Judge Coleman’s chambers.

Bar Admissions

    New Jersey
    U.S. District Court for the District of New Jersey

Education

Rutgers Law School (J.D. 2012), cum laude, Order of the Coif; articles editor, Rutgers Law Review
Monmouth University (B.A. 2009), summa cum laude; Dean’s List; Phi Alpha Theta honor society
Areas of Practice

Environmental Law & Litigation | Litigation | Products Liability & Specialty Torts | Real Estate

Professional Career

Significant Accomplishments

Speaking Engagements

Mark S. Heinzelmann will be moderating the “Site Remediation Practitioners’ Forum” where panelists will discuss topics of interest, practice pointers, and other technical and regulatory environmental issues.


 Program location: Lowenstein Sandler, 56 Livingston Avenue, Roseland, New Jersey 07068



Professional Associations

Member, District VC Ethics Committee for Essex - West (DEC VC)Member, New Jersey Environmental Inn of CourtMember, New Jersey State Bar AssociationMember, Monmouth University Alumni Group


Professional Activities and Experience

Accolades
  • Justice Henry E. Ackerson, Jr., Prize - Mark Heinzelmann
  • Volunteer of the Month (Volunteer Lawyers for Justice) - Mark Heinzelmann

Articles

SCOTUS Requires Clean Water Act Permits for Some Groundwater Discharges, Pronounces “Functional Equivalency” Test
Lowenstein Sandler LLP, April 2020

On April 23, the Supreme Court of the United States issued a landmark decision interpreting the reach of the federal Clean Water Act (CWA). That case isCounty of Maui, Hawaii v. Hawaii Wildlife Fund, No. 18-260, 590 U.S. ___ (2020). The Supreme Court’s opinion can be viewed here. The CWA requires regulated entities to obtain a permit for any discharge of pollutants from a point source to navigable waters of the United States. 33 U.S.C. 1311(a)...

First Employee Lawsuit Filed Seeking to Avoid the Workers' Compensation Exclusivity Bar for COVID-19-Related Injuries
Lowenstein Sandler LLP, April 2020

Among the many issues employers are struggling with in the midst of the current COVID-19 crisis is the risk of harm to an essential employee who is compelled to report to work. While, of course, most employers are proactively taking measures to minimize an employee’s risk of contracting the virus, there is a risk of exposure and illness inherent in coming to work...

Amid COVID-19 Pandemic, NJDEP Publishes Key Remediation Standard Proposal
Lowenstein Sandler LLP, April 2020

UPDATE: In an apparent response to the numerous requests submitted by industry groups and the regulated community, the NJDEP has now extended the public comment period for this rule proposal by sixty (60) days to August 5, 2020, and it has postponed the May 11, 2020 public hearing indefinitely. The NJDEP anticipates holding a public hearing for this proposal at some point in the future. The precise date and time, however, will depend on the circumstances surrounding the COVID-19 pandemic...

Additional Articles

COVID-19 is at this point ubiquitous, affecting our daily lives in myriad ways.  But it has not altered our continuing need to work and generate income.  Many of us have reconciled that need by adopting alternative work arrangements, such as working from home or (for working parents) employing staggered work hours.  There are many, however, who do not have that luxury.  These are the essential workers.  They include doctors, nurses, EMTs, and police officers, as well as those who ensure that we are able to carry on with everyday life, such as supermarket employees, waste disposal professionals, truck drivers, and delivery workers.  In the midst of a pandemic, these individuals must continue to work.  Most employers have already adopted health and safety measures designed to protect these employees to the greatest extent possible. Despite those efforts, for essential employees, there is still a risk of contracting the virus that is inherent in going to work.


On April 6, the estate of one such worker (a deceased Walmart employee) filed perhaps the nation’s first wrongful death action arising from COVID-19. In Toney Evans, Special Administrator of the Estate of Wando Evans v. Walmart, Inc., et al., No. 2020L003938, out of Cook County, Illinois, the estate alleges that the decedent contracted COVID-19 while working for defendant Walmart and that Walmart committed “willful and wanton misconduct” by failing to implement proper workplace safety measures. The estate argues that Walmart owed a duty of reasonable care “in keeping the store in a safe and healthy environment” and that it should have taken all of the preventive measures recommended by the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA), including store sterilizations, strict social distancing guidelines (for employees and customers), and the provision of personal protective equipment. According to the estate, “As a direct and proximate cause of [Walmart’s alleged failure to take those steps], the decedent was infected by COVID-19 and ultimately died . . . .”


When an employee is injured on the job, his or her claim for damages is ordinarily handled by the workers’ compensation system. In nearly all states, that system is an employee’s sole source of recovery for a workplace injury or occupational disease. It bars a direct claim for damages against an employer. This preclusive effect is sometimes referred to as the “exclusivity bar.” Of course, there are exceptions, and while the standard is usually quite high, when those exceptions are satisfied, they will allow an employee to pursue an employer directly.  In the Illinois COVID-19 litigation, for instance, the deceased employee’s estate attempts to avoid the exclusivity bar by alleging that Walmart acted willfully and wantonly (i.e., with intent) in failing to implement the preferred health and safety measures.  This argument is designed to invoke one of the most common exceptions to the exclusivity bar: the intentional-wrong exception. Whether through statute or case law, most states have adopted some version of this exception; although it is worth nothing that a minority of states, such as Pennsylvania, still do not recognize it.


It remains to be seen whether the estate of the Walmart employee will be successful in avoiding the exclusivity bar and advancing that litigation past the inevitable motion to dismiss. The results will, of course, depend on certain nuances in Illinois law, as well as the judicial appetite (if any) for carving out a limited exception for essential employees who are faced with these unique and unprecedented circumstances. But if the estate is successful, and if plaintiffs in other jurisdictions are also successful in advancing the same or similar arguments, then this could signal an erosion of the exclusivity bar in the context of COVID-19 and would undoubtedly trigger a wave of litigation across the nation.


As of April 20, the CDC has tallied nearly 750,000 cases of COVID-19 in the United States and nearly 40,000 deaths.  Every state has reported cases, with many reporting several thousand, and in some instances, tens of thousands.  Although we cannot be sure until an official study is performed, it is possible that a significant portion of those cases were contracted in the workplace.  This demonstrates the extraordinary scope of this pandemic and the ongoing threat to employees.  Given that scope, if litigation arising from employee exposure to COVID-19 gains traction and is not otherwise slowed by the exclusivity bar, then we could see those matters consolidated into mass tort actions.  Navigating such actions would be complex, time-consuming, and resource intensive.  Any litigants that are ultimately faced with COVID-19-related litigation, and the law firms they hire to represent them, would thus be wise to explore and capitalize on all available support services.  Until then, the progress of the Illinois litigation (and any future actions) should be monitored closely.


Reprinted with permission from the April 24, 2020, issue of the Verus LLC blog. © 2020 Verus LLC. All Rights Reserved. Further duplication without permission is prohibited.


To see our other material related to the pandemic, please visit the Coronavirus/COVID-19: Facts, Insights & Resources page of our website by clicking here.

A gas station owner receives a ticket in the mail from the local municipal court. It cites a violation of an environmental regulation and orders him to appear in court. Perplexed, he seeks legal advice. What has happened?


This article will provide some background information about the New Jersey Department of Environmental Protection’s (DEP’s) expanded Municipal Ticketing Program.


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