Month: September 2013

Reed Smith
Christopher L. Rissetto and Mark A. Mustian

September 25, 2013

Since the National Pollution Discharge Elimination System (NPDES) permit requirements were first adopted by EPA back in 1972, the program has undergone significant changes. Categorical limitations, storm water permitting, toxics control, and biotoxicity testing are just a few of the many issues that have been implemented or significantly changed over the past 40 years. However, one aspect of the NPDES program has remained remarkably unchanged over this period. For a significant portion of the regulated community, permit compliance is still demonstrated in the same manner as always. The permittee will collect samples of his discharge, analyze the samples for the pollutants of concern, fill out a paper copy of his Discharge Monitoring Report (DMR) – often by hand – and then mail a copy of the report to the permitting authority. As proposed by EPA July 30, this approach will go the way of the typewriter. EPA is proposing to require most of the regulated community to submit monitoring data and other reports electronically to be compiled into a nationwide database.

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Manatt Phelps & Phillips LLP
Amy B. Briggs, David B. Killalea , Stephen T. Raptis, Robert H. Shulman and Susan P. White USA

September 18, 2013

With the advent of the “absolute” pollution exclusion in commercial general liability (“CGL”) policies in the mid-1980s, many in the insurance industry predicted that pollution-related insurance claims soon would be a thing of the past. But as three of our stories this week demonstrate, pollution claims–as well as coverage disputes involving such claims–continue to be prominent today. There are numerous reasons why these claims persist. Older CGL policies continue to provide coverage for pollution-related claims as long as the triggering “occurrence” at issue predates the mid-1980s. Moreover, since pollution coverage became more limited under CGL policies, insurers have marketed (and continue to market) all manner of specialty pollution coverages. In addition, courts interpreting the “absolute” pollution exclusion have recognized numerous exceptions. For all these reasons, policyholders need to be particularly diligent about evaluating their policies for coverage of environmental damage claims.

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Manatt Phelps & Phillips, LLP
Amy B. Briggs, David B. Killalea , Stephen T. Raptis, Robert H. Shulman
and Susan P. White

September 18, 2013

A letter sent by the EPA in 2001 pursuant to CERCLA warning Land O’Lakes that it could be a potentially responsible party (“PRP”) for cleanup of an old refinery site triggered Land O’Lakes’ insurers’ duty to defend, the Eighth Circuit Court of Appeals recently held. This is consistent with the majority rule nationally, and typically is the position advocated by policyholders. In the case of Land O’Lakes, however, this unfortunately meant that the statute of limitations applicable to breach of contract had run as a result of Land O’Lakes’ seven-year delay in challenging its insurers’ denials of coverage.

In 2001 the EPA sent a Special Notice Letter (or “PRP Letter”) to notify Land O’Lakes that the agency considered Land O’Lakes to be a PRP under CERCLA for an oil refinery acquired by Land O’Lakes and later declared a Superfund site. The PRP Letter demanded that Land O’Lakes reimburse the EPA for $8.9 million that it had spent cleaning up the site, and encouraged Land O’Lakes to enter into negotiations with the EPA regarding additional cleanup.

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Baker & Hostetler LLP
Peter C. Whitfield USA

September 11, 2013

Shortly after admonishing the Ninth Circuit for its strained interpretation of the Clean Water Act (“CWA”), the Supreme Court may be asked to repeat itself. On January 8, 2013, in Los Angeles County Flood Control District v. Natural Resource Defense Council, 133 S. Ct. 710 (2013), the Supreme Court reversed the Ninth Circuit’s finding that the Los Angeles Flood Control District (“County”) was liable for a CWA permit violation for channelling stormwater containing pollutants from one portion of a navigable waterway to another portion of that same waterway. The Court remanded the case to the Ninth Circuit. On August 8, 2013, the Ninth Circuit retooled its holding and again found the County liable for CWA permit violations. Natural Res. Def. Council, Inc. v. Cnty. of Los Angeles, 10-56017 (9th Cir. Aug. 8, 2013). This time, the Ninth Circuit focused on the specific language of the discharge permit rather than the jurisdictional operation of the CWA. The Circuit may need a third try to get it right.

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