MassDEP’s Interim Policy on Re-Use of Soil and the Metaphysics of Dirt

Bowditch & Dewey
Robert D. Cox, Jr.

August 12, 2015

MassDEP’s interim policy for using soil to reclaim quarries, gravel pits and sand pits is out. You can read the new interim policy HERE.  After two public meetings, a few drafts, and a lot of conceptual thinking, MassDEP’s policy is pretty simple: MassDEP will issue site-specific approvals, in the form of Administrative Consent Orders, to ensure that the reuse of large volumes of soil for the reclamation of sand pits, gravel pits and quarries poses no significant risk of harm to health, safety, public welfare or the environment, and will not create new releases or threats of releases of oil or hazardous materials.

Is this so new? Not really. It is what MassDEP was doing for large projects before the issue of what to do with mildly contaminated soils came up a few years ago and before MassDEP was directed by Section 277 of Chapter 165 of the Acts of 2014 to come up with regulations, guidelines, standards or procedures for determining the suitability of soil used as fill material for reclamation projects.

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Avoid These Evidence Issues in Environmental Litigation

Fox Rothschild, LLP
Jeffrey M. Pollock

July 22, 2015

Experience is a cruel teacher, and I write this article in the hope that others will be spared some of the evidence problems I have faced. Environmental trial practice is unique because of the incredible breadth of environmental laws, as well as the great variety of disputes. Environmental law is an amalgamation of federal and state common law, with a number of statutory structures (federal and state) adding to the mix.

To add to the complexity, environmental law covers a number of areas, ranging from coastal zone management (CZMA), storm water discharge (CWA and SWD), hazardous waste remediation (Spill Act and CERCLA), air pollution (CAA), chemical process (TSCA), preventing manufacturing from contaminating (RCRA), landfill design and operation (SWDA), protection of endangered and threatened species (ESA)—and this list does not cover dozens of other areas such as nanotechnology, farm run-off, lead paint pollution, asbestos, nuisance, trespass, second-hand smoke, pesticide application, underground storage tanks (USTs), etc.

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Insurance Coverage for Pollution: An Important Part of The Picture

Dickstein Shapiro LLP
Erin L. Webb

July 31, 2015

Originally published in the In-House Counsel Committee Newsletter of the American Bar Association Section of Environment, Energy, and Resources, Volume 16, Number 2, July 2015. © 2015 by the American Bar Association.

Many companies face pollution risks, either through liability to other parties or due to property contamination. Insurance policies can be an important asset to protect the company against these types of liabilities. These policies can provide coverage for the costs of cleanup efforts, as well as the costs of lawsuits and related legal fees from third parties. Emergency response costs and business interruption costs can also be covered, depending on the policy, as well as coverage for contractor costs, cleanup of specific sites, and remediation related to storage tanks. Not only does insurance serve as an important part of the larger risk management picture for a company, it is also often required by state or federal regulators, by lenders, or by business partners.

Decades ago, pollution coverage often could be found under general or “all-risk” policies. For example, commercial general liability (CGL) coverage did not absolutely exclude coverage for pollution liabilities until the late 1980s. Modern CGL policies, however, tend to have very broad “pollution exclusions” stating that most pollution related risks will not be covered. The same is true for modern “all-risk” first-party property policies. Other key types of insurance coverage for companies, such as directors and officers (D&O) and errors and omissions (E&O) policies, also usually contain exclusions for pollution liabilities. Thus, to obtain coverage for pollution, companies usually must purchase a separate policy. There are several types of policies available to cover pollution risks. This article will summarize some of the most common.

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EPA Finalizes Ambitious Clean Power Plan

Paul Hastings LLP
Kevin Poloncarz & Ben Carrier

August 7, 2015

On August 3, 2015, the Environmental Protection Agency (hereinafter, “EPA”) released its final “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units” (the “Clean Power Plan” or “Final Rule”), a much-anticipated regulation to reduce carbon dioxide (“CO2”) emissions from existing power plants. Compared to the June 18, 2014 proposed Clean Power Plan (“Proposed Rule”, see 79 Fed. Reg. 34830 (June 18, 2014)), the Final Rule establishes more ambitious CO2 emission reduction goals while providing additional flexibility to affected electric generating units (“EGUs”) and states in meeting the Clean Power Plan’s goals. Along with the Final Rule, the EPA concurrently proposed a federal plan to implement the requirements of the Clean Power Plan in states that do not submit an approvable plan. The proposed Federal Plan also provides proposed model rules that states can adopt to facilitate interstate trading to achieve either their respective rate- or mass-based goals.

The Clean Power Plan is one of the boldest and most ambitious environmental regulations of our time and, for those reasons alone, is likely to be one of the most contested as well. Several states and coal producers already challenged the Proposed Rule in court, even before it was final, and are poised to challenge the Final Rule again, once it appears in the Federal Register. Sixteen states have already sought an administrative stay of the Final Rule pending resolution of litigation.

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