LATEST INSIGHTS

Pollution Exclusion
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Pollution Exclusion Continues to be Examined

Recently, two courts scrutinized the application of the pollution exclusion in the context of the facts alleged in the underlying pleadings. The Washington Supreme Court, in the case of Xia, et al. v. ProBuilders Specialty Insurance Co. RRG, 393 P.3d 748 (2017), rendered a groundbreaking analysis of the pollution exclusion favorable to policyholders. The court, in analyzing the underlying complaint segregated the pollution events and a claim of negligent installation. Within the context of the efficient proximate cause doctrine, the court held that the …

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Offshore Drilling
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NMFS and NOAA Solicit Comments Regarding Offshore Seismic Surveys; Environmental Groups Enthusiastically Oblige

On June 6, 2017, the National Marine Fisheries Service (NMFS) and National Oceanic and Atmospheric Administration (NOAA) took the next step towards oil and gas drilling offshore of the east coast of the United States. The agencies filed a notice of takes of marine mammals incidental to geophysical surveys in the Atlantic Ocean and opened the subject for public comment.

Three geophysical mapping companies have sought permits to conduct surveys off the east coast. The surveys would involve the use of air-guns, hydrophones, and …

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General
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Green vs. Grey Infrastructure? Practical Incentives for Developers to Consider “Going Green”

Stormwater Management:

One of the biggest threats to our waterways and impediments in providing safe and clean water to our nation’s communities is stormwater runoff. With the construction of impervious materials that abound from the development of buildings, roads, and parking lots, it’s no surprise that rainwater has trouble getting absorbed into the ground. So where does it go? The answer — rainwater runs off into storm drains and ditches, and along its journey over various impenetrable surfaces picks up contaminants, such as oil from …

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Landfill with blue sky and cumulus clouds
EPA / Missouri
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Where There’s Fire, There’s Not Always Smoke. EPA Finds No Radioactive Contamination at Homes Near Suburban St. Louis Landfill

The Environmental Protection Agency declared a landfill near St. Louis, Missouri containing Manhattan Project waste has not contaminated nearby homes with radioactive materials.

Approximately 40 years ago, waste materials from the Manhattan Project were buried in the West Lake Landfill in Bridgeton, a St. Louis suburb. The discovery of an underground fire at the nearby Bridgeton Landfill has led to the lawsuits alleging that radioactive materials could be polluting nearby residential neighborhoods.

In November 2016, Robbin and Mike Dailey filed suit in state court against …

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New York / Wastewater
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NYC’s Plan to Disinfect Sewage and Pipes: Is Chlorine Still a Good Option?

New York City is 305 square miles and about 72 percent of that space is covered with impenetrable surfaces like rooftops, roadways, and playgrounds. So when it rains in the metropolis, the precipitation floods storm drains and sewers. With what some call an antiquated sewer system that treats about 1.3 billion gallons of city wastewater on a dry day (and twice that during moderate rainfall) coupled with a growing population, the Big Apple is experiencing increasing problems in treating the bacteria found in the City’s …

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Ohio / PFOA
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Must Be Something in the Water: High Levels of PFOAs Found in Mid-Ohio River Valley Residents

A recent study by the University of Cincinnati found high levels of perfluorooctanoic acid (PFOAs) in residents from the Mid-Ohio River Valley over a 22-year period. The study’s findings are largely consistent with increased detection of PFOAs in water sources nationwide in recent years. Perfluorooctanoic acid (PFOA), also known as C8, persists indefinitely in the environment and is identified as a substance that is “possibly carcinogenic to humans.” Until recently, PFOAs were routinely used in making a number of consumer products like stain-resistant fabrics, food …

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EPA
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Pruitt Intends to Rebalance the EPA – Rejecting the idea that “You Can’t Have Your Cake and Eat It Too”

In March, Scott Pruitt, the administrator of the Environmental Protection Agency, discussed a new direction for the EPA during his remarks at Ceraweek, an annual conference involving leaders in industry, energy, the financial sectors, and government. In his opening statements, Pruitt discussed changes at the EPA dedicated to these core values: (1) where process matters; (2) the rule of law will be respected; and, (3) cooperative federalism. Pruitt explained this new balance as a synergy of pro-growth and environmental policy.

According to Pruitt, “the process …

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Clean Air Act / Texas
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Regulated Industry Beware: Citizen Suit Under Clean Air Act Results in Largest Ever Penalty

In late April 2017, ExxonMobil was ordered to pay almost $20 million in penalties for violations of the Clean Air Act in the Houston area. The oil giant was sued in 2010 by environmental groups The Sierra Club and Environment Texas, which alleged that the corporation emitted levels of hazardous contaminants in excess of what is permitted by federal and state law. U.S. District Judge David Hittner stated in his decision that Exxon financially benefited to the tune of $14 million from delaying implementation of …

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CERCLA / Ohio
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CERCLA Update – Watch Out for Inadequacies in Allegations; Pleading Requirements to Satisfy a “Disposal”

Late last year, in our Law360 article “Definition Of ‘Disposal’ Limits CERCLA’s Applicability,” we analyzed an Ohio District Court’s pleading requirements to state a claim for liability under CERCLA. The plaintiffs’ initial complaint in that case had been dismissed because it failed to sufficiently allege “active human conduct” causing hazardous substances to be “discharged, deposited, injected, dumped, spilled, leaked or placed into or on any land or water at the Site so that it could enter the environment.” We left off with the …

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New York
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Up in the Air: The Evaporating Confidence of New York Property Owners

A growing number of New York State property owners are facing legal issues, decreases in property value, unexpected environmental remediation costs, and general uncertainty because of a phenomenon called “vapor intrusion.” Goldberg Segalla’s John F. Parker and Rosa D. Forrester have explained the issue in an article for New York Law Journal.

“In New York, recent changes in environmental guidelines and practices have led to the reopening of previously closed environmental spill sites to further investigate the presence of volatile organic compounds that have …

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