13 Nov 2018Can an EPA or State Agency Information Demand Trigger a Liability Insurer’s Duty to Defend?
It is well established that insurance coverage for potentially responsible party (PRP) letters is available under the law of most jurisdictions. Many, if not most, jurisdictions now recognize that a demand from the Environmental Protection Agency (EPA) or a state agency to investigate and remediate contamination is the functional equivalent of a suit, which triggers
07 Nov 2018EPA Region 5 and IDEM in Full Collaboration Mode (Mostly)
On Oct. 30, 2018, the U.S. Environmental Protection Agency (EPA) Region 5 officials met with officials from the Indiana Department of Environmental Management (IDEM) and members of the regulated community to discuss current priorities and issues within the Region 5/IDEM area. The gathering included almost all of the upper management of EPA Region 5 and
23 Oct 2018Sidestepping Issues of Causation and Constituent Ingredients in Northern Illinois
A recent decision in a pending contribution action associated with the Lake Calumet Cluster Superfund site in southeastern Chicago highlights a circuit split with regard to causation in private actions. The decision also addresses—but does not resolve—a novel legal and factual question related to the scope of hazardous waste under CERCLA: When does a substance
16 Oct 2018Ten Year Statute of Limitations for ELA Claims Starts When Cost Is Incurred
On October 3, 2018, the Indiana Court of Appeals answered some important questions about Indiana’s Environmental Legal Action (ELA) statute, Ind. Code § 13-30-9-1 et seq. The 18-page appellate decision in Elkhart Foundry & Machine Co., et al. v. City of Elkhart, et al. affirmed the trial court in every respect. The court found that:
02 Oct 2018Michigan Uses Drones to Investigate PFAS Contamination
Recently, Michigan has become the first state in the United States to use unmanned aerial vehicles (UAVs) to assist in a search for groundwater contamination by perfluoroalkyl and polyfluoralkyl substances (PFAS). The drone’s Forward Looking Infrared (FLIR) and regular cameras will be used to determine whether there are springs in the area being observed, which
25 Sep 201810 Common Hurdles to Securing Insurance Coverage for Legacy Contamination, Part 2
Today, we return to our two-part article exploring 10 common issues that arise in pursuing insurance coverage for legacy environmental contamination. Catch up: 10 Common Hurdles to Securing Insurance Coverage for Legacy Contamination, Part 1 6. The “Known Loss” Doctrine. The basic premise of insurance is that it protects against the risk that a policyholder
20 Sep 201810 Common Hurdles to Securing Insurance Coverage for Legacy Contamination, Part 1
In certain circumstances, companies may be able to pursue their historical general liability coverage to offset their potential liability for legacy environmental contamination. For those companies seeking coverage for legacy environmental liabilities, the fundamental, big-picture questions are the same from case to case: Does legacy contamination trigger the historical general liability coverage? Do any exclusions
07 Sep 2018Proposed Changes to Ohio River Pollution Standards Up for ORSANCO Vote
Following through on a proposal first considered in 2015, the Ohio River Valley Water Sanitation Commission (ORSANCO) is nearing an October 4, 2018, vote on whether to remove portions of its Pollution Control Standards in its 2018 review of these rules. Based on the comments received on the proposal, the vote may be controversial. If
24 Aug 2018EPA Streamlining Efforts Look to ACE the Clean Power Plan
Following through on one of President Trump’s first executive orders that instructed EPA to repeal and replace the CPP, the EPA issued a new proposal on August 21 to replace the 2015 Clean Power Plan, along with supporting changes to the New Source Review (NSR) program. The administration’s draft regulation to address emissions from existing
21 Aug 2018WARNING: New Prop 65 Warning Regulations Go Into Effect August 30
If your business and products are subject to the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65), you should be aware that new warning regulations go into effect on August 30, 2018, for products manufactured after that date. Prop 65 was intended to protect drinking water and has resulted in a
09 Aug 2018ASTM Works to Standardize Resiliency Planning
Resiliency planning and infrastructure management are growing issues not only in environmental law, but also more generally in the normal affairs of communities and businesses. For example, resiliency planning – once relegated to climate-change discussions – recently has appeared in guidance documents from USEPA and the US Army Corps of Engineers, and may be a
25 Jul 2018Will a longstanding environmental mystery finally be solved?
This blog post was co-authored by Sean Griggs and Jennifer Baker. Twenty years ago, the Indiana General Assembly enacted the Environmental Legal Action (ELA) statute, Ind. Code § 13-30-9-1 et seq., to allow recovery of costs related to remedial or removal actions that address “the release of a hazardous substance or petroleum into the surface or
12 Jul 2018PHMSA Enforcement Actions – What’s Trending?
This post was co-authored by partner Paul Drucker, and Summer Associate, Zachary Miller. A review of the Pipeline & Hazardous Materials Safety Administration (PHMSA) enforcement statistics continues to emphasize enforcing “lesser” safety violations committed by hazardous liquid pipeline operators. This trend may be part of an enforcement strategy to prevent more sizable and dangerous violations
06 Jul 2018Three Tips to Find Real Environmental News, Real Fast
If your inbox is like mine, you received at least a dozen messages announcing that U.S. EPA Administrator Scott Pruitt resigned on July 5. There is sure to be a flood of news stories predicting how this may affect either the administration in general or the EPA in particular. This post isn’t one of them.
28 Jun 2018Preparing for PFAS Regulation – Important Considerations on Emerging Contaminants
I just gave a presentation on emerging contaminants, with the response to “PFAS” contamination – perfluorinated chemicals – the latest, high-profile set of chemicals providing lessons for the regulated community (and perhaps regulators) to learn from. This presentation was an outgrowth of a State Bar journal article I’d recently published providing a primer on how