Synergy to Sponsor the RTM Conference in Philadelphia


of the RTM Conference in Philadelphia

October 7 – 9, 2014

Sheraton Philadelphia
Society Hill Hotel

This RTM conference zeroes in on deal flow of corporate commercial/industrial and local government properties, business tactics and strategies for reducing the uncertainty caused by environmental risk and closing the deals employing creative financing and environmental risk management and redevelopment solutions.

Click here for more information and to register

If the Suit Fits: A Washington Court Clarifies Triggers for the Duty to Defend

Carlton Fields Jorden Burt
Scott C. Shine

July 24, 2014

Like many other federal and state environmental laws, Washington’s Model Toxics Control Act (MTCA) exposes property owners to strict liability, regardless of fault or intent, for certain types of environmental contamination.  Twenty years ago, in Weyerhaeuser Co. v. Aetna Cas. & Surety Co., 874 P.2d 142 (Wash. 1994), the Supreme Court of Washington held that a property owner’s efforts to remediate polluted sites triggers a liability insurer’s duty to indemnify the owner, even where the government has not yet taken formal action against the insured.  Weyerhaeuserleft open the question of whether a voluntary clean-up, undertaken to avoid strict liability, also triggers the insurer’sduty to defend.  Although, in most circumstances, the duty to defend is actuated before the duty to indemnify, a Washington appellate court held, in Gull Industries, Inc., v. State Farm Fire and Casualty Co. of NY, 69569-0-1 (Wash. App. Ct. June 2, 2014), that an insurer has no duty to defend where the government has not issued “an explicit or implicit threat of immediate and severe consequences.’

The Petroleum Leak and the MTCA

In 1984, Gull Industries discovered a release of petroleum product into the soil adjacent to one of its gas stations, and it undertook a voluntary remediation of the soil and groundwater.  In 2005, under the MTCA, Gull reported the leak and the clean-up to Washington’s Department of Ecology (“DOE”).  The DOE responded by letter, stating that Gull’s report had revealed levels of contamination that required action, that the DOE had “placed the property … with an ‘Awaiting Cleanup’ status,” and that the plaintiff should “be aware that there are requirements in state law which must be adhered to.” The response did not cite any specific state laws or identify any consequences for failure to comply.

Continue Reading

Environmental Claims: Twenty Years Later

Pepper Hamilton LLP
Vicki R. Harding

August 5, 2014

In re Solitron Devices, Inc., 510 B.R. 890 (Bankr. S.D. Fla. 2014)

A Chapter 11 debtor moved to reopen its bankruptcy case more than 15 years after it was closed in order to enforce the plan confirmation order to prevent claims by a state environmental agency and other potentially responsible parties for clean-up costs at a landfill.

The threshold issue was whether the state environmental agency (NYSDEC) had a “claim” that could have been discharged. Section 101 of the Bankruptcy Code defines “claim” as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured …” The court noted that the 11th Circuit held in the context of a products liability case that “claims” should be read broadly to include all legal obligations “no matter how remote or contingent.”

Continue Reading

Significant Superfund Ruling: 9th Circuit Rejects De Minimis CERCLA Settlements

Pillsbury Winthrop Shaw Pittman LLP
Anthony B. Cavender

August 7, 2014

Over a strong dissent, the U. S. Court of Appeals for the Ninth Circuit rejected the lower court’s approval of several proposed de minimisconsent decree settlements. The Arizona Department of Environmental Quality (ADEQ) had negotiated these settlements with a number of potentially responsible parties (“PRPs”) at the Broadway-Patano Landfill, a former hazardous waste site located in Tucson, Arizona; the site is being cleaned up at an expected cost of $75 million. Several parties claiming to be de minimis PRPs approached the ADEQ seeking early settlements of their alleged liability. Their allocations at the site ranged from 0.01% to 0.2% of the overall liability, and the ADEQ’s review of the record agreed with these conclusions. A proposed Consent Decree was filed with the U.S. District Court for Arizona. Although opposed by many intervenors, the court approved the Consent Decree. An appeal followed; the case is State of Arizona v. Raytheon, et. al., decided August 1, 2014.

Continue Reading