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Taft's environmental attorneys practice in all facets of environmental law, including 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 are regularly engaged in insurance disputes concerning environmental issues and agricultural issues involving CAFOs and CFOs. The purpose of this newsletter is to provide you with insights from our team that may be of interest to yours.

Frank Deveau and David Guevara Publish Book Titled "Environmental Liability and Insurance Recovery"    

 

Taft environmental attorneys Frank J. Deveau and David L. Guevara, Ph.D. designed and edited a new book titled Environmental Liability and Insurance Recovery. The book was published in May 2012 by ABA Book Publishing and was sponsored by the ABA's Tort Trial and Insurance Practice Section.

 

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Taft Co-Sponsors Seminar "Synergy of Energy: Environmental and Energy Regulations and Their Impact on Economic Development"

 

Taft is a co-sponsor of the seminar "Synergy of Energy: Environmental and Energy Regulations and Their Impact on Economic Development" along with the Indiana Manufacturers Association and KERAMIDA to be held on June 6. The seminar features industry leaders and environmental professionals who will review current legal and technical trends in water, air and waste regulation. To learn more and to register, please click here

 

Wisconsin Federal Court Reverses Itself: No CERCLA Liability under Asset Purchase Agreement     

 

Kim K. Burke 

kburke@taftlaw.com

(513) 357-9369

LinkedIn   

 

On January 4, 2012, we reported to you my view that the United States District Court for the Eastern District of Wisconsin "could not have been more wrong" in finding that an Asset Purchase Agreement (APA) imposed direct CERCLA liability on the purchaser.  The purchaser filed a motion for reconsideration of this summary judgment, and on April 10, 2012, the district court reversed itself, and dismissed all claims against the purchaser.  In so holding, the court held that the APA was not drafted "broadly enough to encompass [defendant's] direct liability for the CERCLA liability at issue in this case."  Slip Op. at p.2.  The court found that the present liability did not arise from any "violation" of law or any "compliance" issue.  The court rejected the argument of the Justice Department that the filing of a CERCLA lawsuit triggered the "violation" thereby causing defendant's CERCLA liability under the APA.  The court was kind to the Justice Department in describing this position as "a wholly circular argument."  United States of America v. NCR Corp. et al., Case No. 1:10-cv-00910-WCG (April 10, 2012)(doc. 349).  

Using Insurance to Pay for Environmental Response Costs, Including a Remedial Investigation  


William C. Wagner

wwagner@taftlaw.com 

(317) 713-3614

LinkedIn 


Businesses and property owners can often have their own insurance companies pay for the costs to investigate and clean up environmental contamination on their own property under old liability insurance policies, such as commercial general liability (or CGL) policies.  Many older policies either do not have pollution exclusions or have pollution exclusions that courts have decided are unenforceable because they are too broad and ambiguous.  It often comes down to how your state law treats a particular policy's pollution exclusion.  For instance, since 1996, Indiana courts have consistently held that pollution exclusions in various insurance policies are ambiguous and, therefore, do not exclude coverage for claims related to past environmental contamination.

 

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Indiana Supreme Court Requires Insurers to Pay for Environmental Cleanup    

 

Bradley R. Sugarman 

bsugarman@taftlaw.com

(317) 713-3526

LinkedIn   

 

 

The Indiana Supreme Court issued its opinion in State Automobile Mutual Insurance Co. v. Flexdar, Inc. on March 22, 2012. In a 3 to 2 decision, with Justice Rucker writing for the majority, the Supreme Court issued its greatly anticipated opinion upholding Indiana jurisprudence on the ambiguity of the "absolute pollution exclusion" in general commercial liability insurance policies.  Since 1996, with the Court's ruling in American States Insurance Co. v. Kiger, 662 N.E.2d 945, these clauses have been held to be vague and ambiguous because of the over-breadth of the term "pollutants," and have been read out of CGL policies.  Consequently, insurance coverage has been available to Indiana insureds to help defray the cost of defending lawsuits brought as a result of environmental contamination as well as the cost of cleaning up environmental contamination.

   

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Who Should Regulate Fracking?    


William C. Wagner

wwagner@taftlaw.com 

(317) 713-3614

LinkedIn 

 

Fracking is the process of injecting water, sand, and chemicals into deep geological formations at high pressures to create fractures that free the flow of oil or gas.  The United States Environmental Protection Agency (EPA), the states, and even local governments are attempting to regulate hydraulic fracturing (or "fracking"), but where do those efforts stand?   

 

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Supreme Court Overrules EPA "Strong-Arming" Under Clean Water Act      

 

Bradley R. Sugarman 

bsugarman@taftlaw.com

(317) 713-3526

LinkedIn   

 

 

The United States Supreme Court recently held that an enforcement order issued by the United States Environmental Protection Agency ("EPA") under the Clean Water Act (the "Act") constituted "final agency action" and that the Act did not preclude judicial review of the order. (Sackett v. EPA, No. 10-1062 (U.S. March 21, 2012).

 

The dispute arose after landowners, the Sacketts, placed fill material on their property in the beginning stages of building their house. The Sacketts then received an order from the EPA, which stated that their residential lot qualified as a wetland and that their construction project violated the Act. Specifically, the order stated that by placing the fill material on the property, the Sacketts unlawfully discharged a pollutant as prohibited by the Act. The order directed the Sacketts to take various actions, including restoring the "wetland" on their property pursuant to an EPA-created plan and providing EPA access to their property and any related documentation. According to the order, the Sacketts faced fines of up to $75,000 for each day of non-compliance.

 

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EPA Finalizes List of 30 'Unregulated Contaminants' For Monitoring in Drinking Water       

 

Robert A. Bilott

bilott@taftlaw.com 

(513) 357-9638

LinkedIn   


On May 1, 2012, US EPA announced that it had finalized its third list of 'unregulated contaminants' for future monitoring by drinking water providers.  We reported on release of the draft list of 30 substances, and included a listing of the originally-proposed 28 chemicals and 2 viruses, on January 12, 2011.   The final rule identifies mostly the same subtances for monitoring, such as previously-unregulated perfluorochemicals, PFOA and PFOS, except that EPA has deleted n-Propylbenzene and sec-Butylbenzene from the list and has added the controversial listing of hexavalent chromium and total chromium.

 

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EPA Proposes Carbon Performance Standard for Fossil Fuel Fired Power Plants        

 

Jeffrey D. Stemerick

 jstemerick@taftlaw.com 

(317) 713-3414 


On April 13, 2012, the EPA published a proposed new source performance standard under Section 111 of the Clean Air Act for CO2 emissions from fossil fuel fired power plants.  See Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources:  Electric Generating Units, 77 Fed. Reg. 22,392 (published April 13, 2012) (to be codified at 40 C.F.R. pt. 60).  If the proposed rule is enacted, new fossil fuel fired power plants will need to comply with the output-based emission standard of one thousand pounds of CO2 per megawatt-hour.

 

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April/May 2012 Issue
Frank Deveau and David Guevara Publish Book
Taft Co-Sponsors Seminar
Wisconsin Federal Court Reverses Itself
Using Insurance to Pay for Environmental Response Costs
Indiana Supreme Court Requires Insurers to Pay for Environmental Cleanup
Who Should Regulate Fracking?
Supreme Court Overrules EPA "Strong-Arming" Under Clean Water Act
EPA Finalizes List of 30 'Unregulated Contaminants' For Monitoring Drinking Water
EPA Proposes Carbon Performance Standard for Fossil Fuel Fired Power Plants






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