Environmental Law & Climate Change Community Hazardous Waste

Court Rules In 2013 That Mining Environmental Contamination Going Back To Late 1800’s Covered By Insurance Issued In 1950’s

slamden@ngelaw.com (Seth Lamden) — Tue, 30 Apr 2013 12:30:00 -0400

by Seth Lamden, Partner, Neal, Gerber & Eisenberg LLP

The court in Doe Run Resources Corporation v. Certain Underwriters at Lloyd's London, No. ED98086, 2013 Mo. App. LEXIS 468 (April 16, 2013) [enhanced version available to lexis.com subscribers], held that excess liability insurers were jointly and severally liable under policies issued to Doe Run in the 1950s for "all sums" that

9/11 and the CERCLA “War Risk” Exclusion

maniloffr@whiteandwilliams.com (Randy J. Maniloff) — Thu, 11 Apr 2013 17:22:00 -0400

By Randy J. Maniloff, White and Williams, LLP

New York Federal Court Holds That September 11th Was An "Act Of War"

In the immediate aftermath of the September 11, 2001 attacks, there was intense political pressure on the insurance industry not to invoke the "war risk" exclusion contained in any responsible party's liability policy.

The message to the industry was: don't even think about it. In addition to this pressure, a consensus among some insurance commentators was that the "war risk" exclusion was inapplicable anyway.

The conclusion by some that the "war risk" exclusion was inapplicable to the September 11th attacks was generally based on the

Jenner & Block: Insurer Unable To Step Into CERCLA Shoes Of Insured

ssiros@jenner.com (Steven M. Siros) — Thu, 11 Apr 2013 09:25:00 -0400

A recent Ninth Circuit decision limited the ability of an insurer to seek CERCLA contribution and/or cost recovery from potentially responsible parties ("PRPs"). In Chubb Custom Insurance Company v. Space Systems/Loral et al., [enhanced version available to lexis.com subscribers], Chubb issued a pollution premises liability ("PPL") policy for a site in Palo Alto, California. Chubb's insured sought

ExxonMobil Found To Be Negligent and Ordered To Pay $236 Million For MTBE Contamination To Groundwater

Wed, 10 Apr 2013 14:31:00 -0400

CONCORD, N.H. - (Mealey's) A state court jury in New Hampshire on April 9 found that ExxonMobil Corp. was negligent in adding methyl tertiary butyl ether (MTBE) to gasoline and that it should pay $236 million to remediate groundwater contamination caused by the additive (State of New Hampshire v. Hess Corporation, et al., No. 03-C-0550, N.H. Super., Merrimack Co.).

(Verdict form available. Document #08-130412-026V.)

The jury deliberated for less than two hours before reaching its

Jenner & Block: DOJ Not Required To Produce Interagency Memorandum in CERCLA Case

ssiros@jenner.com (Steven M. Siros) — Thu, 28 Mar 2013 09:23:00 -0400

A recent Seventh Circuit decision rejected a PRP's efforts to obtain interagency memorandum and other communications between the Environmental Enforcement and the Environmental Defense Sections within the United States Department of Justice ("DOJ"). See Menasha Corp. et al. v. United States, (7th Cir. 2013) [enhanced version available to lexis.com subscribers]. In 2010, the United States, on behalf of U.S. EPA and the Department of the Interior

Tenants Might Breathe a Little Easier

WilliamsMullen@placeholder.com (Williams Mullen) — Tue, 12 Mar 2013 09:35:00 -0400

By William A. Anderson, II

In new guidance, the Environmental Protection Agency (EPA) has expanded the classes of tenants that, in the exercise of its enforcement discretion, it may consider Bona Fide Prospective Purchasers (BFPPs) on a site-specific basis. See "Revised Enforcement Guidance Regarding the Treatment of Tenants Under the CERCLA Bona Fide Prospective Purchaser Provisions" (2012) ("Tenant BFPP Guidance"). In the absence of BFPP treatment, tenants may be held liable under the Superfund law as the current operators (or even owners, in some cases) for the costs of cleaning up contaminated property that they occupy and of restoring any damaged natural

Pepper Hamilton: New Liability Protection for Tenants on Brownfield Properties

Wed, 27 Feb 2013 10:41:00 -0400

By Jane C. Luxton, Partner, Pepper Hamilton LLP

In a December 2012 Guidance Memo, the Environmental Protection Agency (EPA) announced new enforcement principles intended to enhance protections for tenants on contaminated or previously contaminated "brownfield" properties. The new guidance, available at http://www.epa.gov/enforcement

Jenner & Block: New MOU Between EPA And Kentucky

lgrayson@jenner.com (E. Lynn Grayson) — Wed, 23 Jan 2013 09:02:00 -0400

By E. Lynn Grayson, Partner, Jenner & Bloc

EPA Region 4 and the Commonwealth of Kentucky Department of Environmental Protection (KYDEP) have entered into a Memorandum of Understanding (MOU) to support and strengthen efforts to achieve cleanups

Jenner & Block: Post-Sackett Challenge to U.S. EPA RCRA Order

ssiros@jenner.com (Steven M. Siros) — Tue, 22 Jan 2013 10:08:00 -0400

By Steven M. Siros, Partner, Jenner & Block

The first of perhaps many post-Sackett challenges to RCRA orders was filed in the Central District of California in December. On December 18, 2012, a chemical company (Soco West, Inc.) challenged U.S. EPA's issuance of a RCRA Section 7003 unilateral compliance order. In its complaint, the chemical company argues that the unilateral

Jenner & Block: New EPA Guidance On Institutional Controls

lgrayson@jenner.com (E. Lynn Grayson) — Mon, 14 Jan 2013 09:35:00 -0400

By E. Lynn Grayson, Partner, Jenner & Block

EPA has released guidance on the use of institutional controls at CERCLA, RCRA and UST sites. The guidance titled Institutional Controls: A Guide to Planning, Implementing, Maintaining and Enforcing Institutional Controls at Contaminated Sites is the second in a series of guidance developed by the Agency. The first document was issued in September 2000 titled Institutional Controls: A Site Manager's Guide to Identifying, Evaluating and Selecting Institutional Controls at Superfund

Jenner & Block: U.S. EPA Issues Revised Guidance On The Use Of Institutional Controls At Contaminated Sites

ssiros@jenner.com (Steven M. Siros) — Tue, 08 Jan 2013 16:45:00 -0400

   By Steven M. Siros, Partner, Jenner & Block

U.S. EPA's Office of Solid Waste and Emergency Response ("OSWER") recently issued revised guidance relating to the use of institutional controls at Superfunds sites and other contaminated properties. The first guidance document, titled    By Gabrielle Sigel, Partner, Jenner & Block

On December 19, 2012, the U.S. Court of Appeals for the Seventh Circuit issued a panel decision that clarifies the law within that Circuit on issues left unresolved after several U.S. Supreme Court's decisions interpreting certain provisions of the Comprehensive Environmental Response, Compensation and Liability Act, On November 21, 2012, a federal district court in Wisconsin rejected PRP efforts to seek modification of the remedial plan established by U.S. EPA and the State of Wisconsin to address PCB-contaminated sediments in the Fox River. In 2010, U.S. EPA and the State of Wisconsin sued several potentially responsible parties ("PRPs") in order to enforce a Unilateral Administrative Order ("UAO") that had been issued in 2007. As part of that enforcement proceeding, several PRPs argued that U.S. EPA and the State of Wisconsin had acted in an arbitrary and capricious manner by failing to issue a formal ROD amendment for the Fox River PCB remediation in light of significant exceedences of the original cost estimates.

In a decision issued September 26, 2012, the New Jersey Supreme Court clarified the standard for demonstrating causation in a claim for damages under the    By Allison Torrence, Associate, Jenner & Block

Ever since the U.S. Supreme Court decided United States v. Atlantic Research Corp. in 2007, CERCLA PRPs and courts have been struggling with a crucial question: Whether parties subject to a consent decree may file claims for cost recovery under    By Steven M. Siros, Partner, Jenner & Block

On September 4, 2012, a federal judge in New Jersey denied Arcadis U.S. Inc.'s ("Arcadis") request for summary judgment in a CERCLA lawsuit relating to the disposal of contaminated concrete from a demolished Ford Motor Company assembly plant in New Jersey. As part of its efforts to demolish

California State Water Board’s Low-Threat UST Case Closure Policy Is Now Effective

sbanks@ggfirm.com (Sedina L. Banks) — Thu, 06 Sep 2012 09:08:00 -0400

   By Sedina L. Banks, Attorney, Greenberg Glusker Fields Claman & Machtinger LLP

On May 1, 2012, the California State Water Resources Control Board (SWRCB)

Jenner & Block: New EPCRA Tier I and Tier II Updates

lgrayson@jenner.com (E. Lynn Grayson) — Mon, 27 Aug 2012 11:41:00 -0400

   By E. Lynn Grayson, Partner, Jenner & Block

EPA has proposed changes to EPCRA Section 312 Tier I and Tier II   By Gabrielle Sigel, Partner, Jenner & Block

The U.S. Court of Appeals for the Second Circuit has issued a mandate to the U.S. District Court for the Southern District of New York, requiring the lower court to determine whether contamination from the collapse of the World Trade Center buildings are subject to the "act of war" affirmative defense from liability

Pepper Hamilton: Nike, Adidas Pledge to Stop Toxic Discharges from Supply Chain by 2020 – A Pledge that May Be Easier to Make than Keep

Thu, 31 May 2012 11:23:00 -0400

By William J. Walsh, Of Counsel, Pepper Hamilton LLP

A number of companies (Adidas Group, C&A, G-Star, H&M, Li Ning, Nike Inc., and Puma) have pledged to eliminate hazardous chemical discharges from their factories by 2020. Specifically, they plan to verify that phthalates (a substance that makes plastics

Jenner & Block: Corporate Purchaser Not Liable to the Government for CERCLA Liability; Former Operator Must Begin Cleanup

gsigel@jenner.com (Gabrielle Sigel) — Fri, 25 May 2012 18:50:00 -0400

   By Gabrielle Sigel, Partner, Jenner & Block

In long-running litigation regarding one of the costliest Superfund cleanups in the country, the U.S. District Court for the Eastern District of Wisconsin reversed a decision it reached just 5 months earlier and found that Appleton Papers Inc. ("API") was not liable to the federal government for performance of a cleanup

Bank Not Liable For Auction Sale of Contaminated Property

Larry@schnapflaw.com (Larry Schnapf) — Thu, 17 May 2012 09:24:00 -0400

   By Lawrence Schnapf, Principal, Schnapf LLC

In Lusk v First Century Bank, 2012 W. Va. LEXIS 241 (Sup. Ct. 4/27/12), the plaintiff/petitioners purchased a commercial property at an auction foreclosure

Settling Party Barred from Bringing a CERCLA Section 107(a) Claim

sbanks@ggfirm.com (Sedina L. Banks) — Wed, 14 Mar 2012 14:20:00 -0400

   By Sedina L. Banks, Attorney, Greenberg Glusker Fields Claman & Machtinger LLP

Last week, in the case of Solutia, Inc. and Pharmacia

EPA Plans To Amend RCRA Hazardous Waste Generator Regulations

lgrayson@jenner.com (E. Lynn Grayson) — Tue, 31 Jan 2012 18:53:00 -0400

   By E. Lynn Grayson, Partner, Jenner & Block

EPA recently announced plans to amend certain hazardous waste regulations under RCRA at 40 C.F.R. Parts 261-265 in its Action Initiation List. According to EPA, the focus will be to streamline these regulations with the overall objective to make targeted, sensible improvements to the hazardous waste regulatory program.

   By Steven M. Siros, Partner, Jenner & Block

DOJ attorneys representing the United States Army Corps of Engineers (the "Corps") and the United States Environmental Protection Agency ("EPA") found themselves unable to rely on the attorney work product, attorney-client, or deliberative process privileges to avoid disclosure of internal communications relating to a pending CERCLA