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Taft's Environmental Practice provides nationally recognized services in the areas of  trial practice, Superfund defense and negotiation, enforcement defense, cost-recovery for plaintiffs and defendants, criminal environmental defense, environmental insurance and toxic tort litigation, mold and sick building litigation, lawsuits involving environmental problems discovered as a result of real property transfers or mergers and acquisitions, Brownfields redevelopment, defense of claims of occupational exposures, and administrative proceedings before state and federal agencies. Taft's environmental lawyers also regularly are engaged in insurance disputes concerning environmental issues and agricultural issues involving CAFOs and CFOs. As a Taft client, you can utilize the capital of 31 intensely motivated and focused attorneys in all facets of environmental law.

"Something Smells at EPA": Fifth Circuit Court of Appeals Rejects EPA's Mission Creep With CAFOs

Kim Burke
Kim K. Burke

 kburke@taftlaw.com  

(513) 357-9369

 

The Fifth Circuit Court of Appeals, sitting as the designated court to hear the Multi-District Litigation appeals to six circuit courts of appeal from EPA's 2008 Concentrated Animal Feeding Operations (CAFO) Rule, recently held that U.S. EPA overstepped its authority when it required all CAFOs to apply for NPDES discharge permits.  CAFOs are usually large animal farms, and were to be subjected to EPA regulation due to discharges of stormwater containing manure.  In language reminiscent of Justice Scalia's spanking of the Corps of Engineers in the Rapanos wetlands case... 

 

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Lessons in Government Immunity for Sewer Districts 

Bill Wagner
William C. Wagner

wwagner@taftlaw.com 

(317) 713-3614

LinkedIn 

 

Many states provide governmental entities immunity from tort liability under certain circumstances.  The Indiana Court of Appeals recently issued a decision instructive on when such immunity may exist in the context of negligence claims against municipal and sanitary sewer districts.  

 

In Town of Highland v. Lieberman, 2011 WL 797485, homeowners filed a class action complaint against the Town of Highland and the Highland Sanitary District (collectively, "Highland") alleging they negligently operated and maintained the sewer system resulting in sewage entering into their homes.  Highland's sewer system was designed to... 

 

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E-Discovery's New Frontier: Metadata  


Robert R. Clark

rclark@taftlaw.com 

(317) 713-3523

 

In a recent federal opinion, National Day Laborer Organizing Network v. Immigration & Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. 2011), Judge Shira Scheindlin provided guidelines for production of electronically stored information ("ESI") that may have substantial implications for the future of e-discovery.  The opinion specifically dealt with how to produce metadata and the additional costs that may be imposed on a careless party.  In National Day, the court recognized that "certain metadata" are inextricable from an electronic record and, consequently, that metadata managed by a government agency as part of an electronic record are "presumptively producible" under FOIA.  This presumption applies unless the agency shows that the metadata are not "readily producible."  Logically, if courts can compel the government to produce metadata, litigants and recipients of information collection requests ("ICR") will not be immune from the same protocols.  

 

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Electrical Utility Is Not a CERCLA "Arranger"    
 

Laura Ringenbach
Laura A. Ringenbach

ringenbach@taftlaw.com

(513) 357-9632 

LinkedIn 

Plaintiffs, who owned a scrap yard, sued two of its utility customers under CERCLA for contribution towards the $1.37 million cost to conduct the State-mandated remediation of the on-site PCB contamination in Schiavone v. Northeast Utilities Service Company, 2011 WL 1106228 (D. Conn. Mar. 22, 2011).  The defendants had contracted with the plaintiffs to sell their used transformers for scrap.  The plaintiffs testified that they would pickup the transformers and bring them to their scrap yard where they would cut them open with a blow torch, remove the copper, and burn off the oil in the transformers.  Plaintiffs never tested the oil for PCBs, which are hazardous substances under CERCLA.

 

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Insurance Company Acts in Bad Faith by Refusing to Defend Environmental Claims 
 

Tom O'Gara

Thomas F. O'Gara

togara@taftlaw.com

(317) 713-3610

LinkedIn 

 

On March 17, 2011, an Indiana trial court found that an insurance company acted in bad faith as a matter of law when it refused to defend its insured, 1100 West, LLC ("1100 West"), against two third-party claims seeking the cleanup of environmental contamination on 1100 West's property.  The finding was made by the Environmental Division trial court of the Marion County Superior Court in an order granting partial summary judgment in favor of 1100 West and against the insurance company on the issue of liability for breach of the duty to defend and bad faith. 

 

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America's Next Top Energy Innovator Challenge
 

Larry Vanore
Lawrence A. Vanore 

lvanore@taftlaw.com 

(317) 713-3524

LinkedIn 

 

Jonathan Polak
Jonathan G. Polak

jpolak@taftlaw.com 

(317) 713-3532

LinkedIn  

Yes, this is a real program, but it isn't on television.

 

The U.S. Department of Energy has announced a series of steps designed to give energy entrepreneurs a leg up on licensing and marketing innovative energy technologies developed by our national laboratories.  The goal is to double the number of federal patents held by the national labs that are licensed to be commercialized.  According to Energy Secretary Steven Chu, these new steps will create green energy jobs while promoting America's energy independence.

 

The program begins May 2, 2011, when the DOE posts a streamlined option agreement online for entrepreneurs to submit to laboratories.  Entrepreneurs have until December 15, 2011 to identify the technology of interest and submit a business plan. Currently, the national labs hold 15,000 unlicensed patents and patent applications, and all will be available for licensing by startup companies.

 

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CERCLA Liability From Local Government Acquisitions and Other Activities 

 

Bill Wagner
William C. Wagner

wwagner@taftlaw.com 

(317) 713-3614 

LinkedIn 

CERCLA liability is a top concern for local governments interested in acquiring, cleaning up, or redeveloping contaminated property. Accordingly, U.S. EPA's Office of Site Remediation Enforcement recently released a fact sheet addressing CERCLA liability issues for local governments, which summarizes key statutory provisions and requirements.  The fact sheet, titled "CERCLA Liability and Local Government Acquisitions and Other Activities," is available here, and its aim is to identify the important role local governments can play in facilitating the cleanup and redevelopment of contaminated properties.  Significantly, the fact sheet cautions that EPA "encourages local governments to consult with their state environmental protection agency and legal counsel prior to taking any action to acquire, cleanup, or redevelop contaminated property."

 

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April 2011 Issue

· Court Rejects EPA's Mission Creep
  With CAFOs
· Lessons in Government Immunity
  for Sewer Districts 
· E-Discovery's New Frontier:
  Metadata
· Electrical Utility Is Not a CERCLA
  "Arranger" 
· Insurance Company Acts in Bad
  Faith  
· America's Next Top Energy
  Innovator Challenge 
· CERCLA Liability






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