One Year After The Gold King Mine Wastewater Release – What Is The Status?

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Fox Rothschild LLP
Melissa J. Lyon

August 9, 2016

Originally published August 5, 2016

Today is the one year anniversary of the Gold King Mine wastewater release incident….

As you may recall, on August 5, 2015, the U.S. Environmental Protection Agency (“EPA”) was conducting an investigation into the Gold King Mine near Silverton, Colorado when approximately 3 million gallons of mine wastewater spilled into Cement Creek, a tributary of the Animas River, over a period of about eight days. The wastewater release flowed down the Animas River to the San Juan River.

The wastewater was “acidic, mine-influenced water,” according to the EPA, and the released waters cascaded through three states (Colorado, Utah and New Mexico) and three American Indian reservations (Southern Ute Indian Tribe, Ute Mountain Ute Tribe and Navajo Nation).

Where are we now, one year later?

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Despite Pollution Exclusion, Insurer On Hook for Contamination in Indiana

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Seyfarth Shaw LLP
Andrew H. Perellis, Patrick D. Joyce and Craig B. Simonsen

August 9, 2016

Originally Posted to the Seyfarth Shaw Environmental  & Safety Law Update

Seyfarth Synopsis: The Northern District of Indiana rejected the insurer’s assertion that its pollution exclusion clauses unambiguously included all contaminants.

Indiana, unlike other jurisdictions, is pro-insured when it comes to providing coverage for damages arising from pollution events. This is so even where the insurance policy attempts to exclude coverage.

Old Republic Ins. Co. v. Gary-Chicago Int’l Airport Auth., No. 15-cv-00281 (N.D. Ind., July 25, 2016), is the latest in a line of cases to hold that, in Indiana, if an insurer wants to exclude coverage for pollution, the policy must state with specificity the contaminants and pollutants for which coverage is excluded.

In Old Republic, the Northern District of Indiana denied Old Republic Insurance Company’s (Old Republic) motion for summary judgment, finding that Old Republic must pay defense costs arising from contamination at the Gary-Chicago International Airport (Airport) because of ambiguities in the insurance policies issued by Old Republic.

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A Foolish Consistency Is The Hobgoblin Of Little Minds: So Said Emerson, So Says EPA

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Foley Hoag LLP
Seth D. Jaffe

August 11, 2016

On Wednesday, EPA issued a final rule amending its “Regional Consistency Regulations.”  The new rule provides that EPA will only follow adverse judicial decisions in the areas of the country where such judicial decisions are applicable.

Previously, EPA’s Clean Air Act regulations specifically required EPA to “assure fair and uniform application [of the CAA]  by all Regional Offices.” As I previously discussed, this regulation came back to haunt EPA in National Development Association’s Clean Air Project v. EPA, when the Court said that, while EPA might otherwise be free to engage in what is known as “intercircuit nonaquiescence”, EPA is bound by its own regulations, so that, at least under the CAA, it is required to follow adverse judicial decisions nationally, in order to maintain regional consistency.

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USEPA Can Seek Restitution for CERCLA Clean-Up Based on EPA Accounting Table and EPA Employee Testimony Without Further Evidence

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Vorys, Sater, Seymour and Pease LLP
Mark A. Norman, Kristin L. Watt and David M. Edelstein

August 8, 2016

The United States Court of Appeals for the Sixth Circuit recently affirmed the guilty plea of Mark Sawyer for conspiring to violate the Clean Air Act (CAA), 18 U.S.C. 371. United States v. Sawyer, No. 15-5181 (6th Cir. 2016). The Court affirmed both Sawyer’s 60-month prison sentence and $10,388,576.71 restitution order. Whether Sawyer’s maximum-guideline sentence is unreasonably high for an individual with no criminal history who pleaded guilty is a matter of debate for another forum. However, components of the restitution analysis are relevant to anyone owning or operating, or working at a U.S. Environmental Protection Agency (EPA) regulated entity.

The case found that Sawyer conspired with four other owners of his company, A&E Salvage, to knowingly violate the CAA by demolishing buildings containing friable asbestos without following the CAA’s standards. His illegal demolition practices resulted in 300 acres of commercial property contaminated with asbestos. The EPA exercised its power under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) which included over $10 Million in direct costs for the clean-up of contamination related to asbestos at the site.

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