Love Canal – the infamous neighborhood in Niagara Falls, New York where large quantities of chemical waste was dumped, and which became the catalyst for enactment of the federal Superfund program – is still generating legal opinions, nearly 40 years after President Jimmy Carter declared a federal health emergency and Love Canal became the first Superfund site.  Read More »

Share | Email| Comments|  Topics: Contamination, Damages, Defense Costs, Indemnification, Insurance, Insurance Coverage, Medical Monitoring, Negligence, New York, Remediation, Second Circuit, Superfund, Toxic Torts

Last week, the U.S. District Court for the District of New Jersey denied Alcoa Domestic LLC’s request that the court dismiss claims against it regarding a previously owned site, finding that Alcoa may be in breach of the Purchase and Sales Agreement for the site and thus still liable for contamination caused by the removal of materials from the site. The case, Borough of Edgewater v. Waterside Construction, LLC et al., Civil Action No. 14-5060 (D.N.J. December 14, 2016), concerns the Borough of Edgewater’s endeavor to remediate contamination at Veteran’s Field in Edgewater, New Jersey in 2012.  A New Jersey contractor, Defendant Waterside Construction, LLC (and several other interrelated companies, collectively, “Waterside”), was awarded the contract for the remediation, which required Waterside to import clean stone to be used as fill in certain areas of the Veteran’s Field site.  Subsequent inspections revealed that the fill was contaminated, and Waterside admitted that the fill material originated from the former Alcoa Site, which is contaminated. Read More »

Share | Email| Comments|  Topics: Breach of Contract, CERCLA, Cleanup, Cost Recovery, Defense Costs, Indemnification, New Jersey, Real Estate, Remediation, Spill Act, Superfund

As part of EPA’s investigation of a Superfund site, EPA typically issues a 104(e) information request to any person or entity that EPA believes to have information regarding release of hazardous substances at the site, including those that may be considered to be PRPs charged with the ultimate cleanup of the site.  Responding to a 104(e) request often requires the recipient to provide detailed responses regarding historical and current industrial operations, and can often set the stage for settlement negotiations with EPA and other PRPs regarding funding the investigation and remediation of the Superfund site. In an unpublished non-precedential opinion filed yesterday, the United States Court of Appeals for the Ninth Circuit ruled that receipt of a 104(e) information request for a Superfund site triggers an insurer’s duty to defend a policyholder for attorneys’ fees and related costs associated with responding to the request.   Read More »

Share | Email| Comments|  Topics: CERCLA, Decisions of Note, Defense Costs, Duty to Defend, Insurance, Insurance Coverage, Ninth Circuit

An issue that insurers and industry have grappled with is whether a company can obtain environmental insurance coverage for costs to address violations of the Clean Air Act, when the costs at issue are aimed at curbing future air emissions, rather than remediating emissions that have already occurred.  Last week, one federal judge in Louisiana answered that question in the affirmative in La Gen Louisiana Gen. LLC, et al. v. Illinois Union Ins. Co., Dkt. No. 3:10-cv-00516 (M.D. La., Aug. 5, 2015).  Read More »

Share | Email| Comments|  Topics: Air, Cases to Watch, CERCLA, Clean Air Act, Decisions of Note, Defense Costs, Electric, Emissions, Energy, Enforcement Action, EPA, Fifth Circuit, Indemnification, Insurance, Insurance Coverage, Louisiana, Remediation

In a case of dueling summary judgment motions, a defendant insurance company came up on the short end of the stick on two principal legal issues resulting in a summary judgment finding in favor of Plaintiff, Wells Cargo, Inc. Read More »

Share | Email| Comments|  Topics: CERCLA, Cost Recovery, Defense Costs, Insurance