Beveridge & Diamond P.C.
John H. Kazanjian, Nicole B. Weinstein

April 20, 2017

Companies facing environmental cleanup liability typically confront claims that are brought multiple decades after the alleged polluting activity took place. This passage of time often results in the loss or disappearance of crucial historic documents, including insurance policies, necessary to respond to the claims.  Historic general liability insurance policies issued before pollution exclusions became commonplace in the 1970s are of particular value in protecting a company from exposure to “long-tail” environmental liability.  Finding these policies, or evidence of their existence, therefore is a must.  A recent New Jersey federal court decision serves as a helpful reminder that when the actual policies cannot be located, even limited documentary evidence of their existence, when buttressed by the expert testimony of a credentialed insurance archaeologist, may be sufficient to prove the coverage and facilitate recovery.

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Mitchell Williams Selig Gates & Woodyard PLLC
Walter Wright

April 7, 2017

The Subcommittee on Environment of the United States House of Representatives Committee on Energy and Commerce (“Subcommittee”) held a hearing on April 4th titled:

“Discussion Draft: Brownfields Reauthorization” (“Hearing”)

The focus of the hearing was the development of legislation reauthorizing the United States Environmental Protection Agency (“EPA”) Brownfield Program.

An additional objective was stated to be statutory improvements to the Brownfield’s aspect of the Comprehensive Environmental Response Compensation Liability Act (“CERCLA”).

EPA and most states (including Arkansas) have governmental programs addressing properties whose marketability has been impaired because of perceived or real environmental contamination issues. The interest in initiating reuse of idle properties is not limited to commercial development or industrial manufacturing facilities. For example, the impediments to the purpose and reactivation of abandoned mining or retail motor fuel properties might involve similar issues.

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Venable LLP
Fred R. Wagner

This article was originally posted in the Venable’s EnviroStructure Blog

April 12, 2017

A constant refrain from clients over the years, in both the public and private sectors, is that certainty may be the most valuable characteristic of any regulatory program. The “Waters of the United States” controversy perfectly illustrates this perspective. One could argue whether the Army Corps of Engineers’ reach over jurisdictional waters governed by Section 404 of the Clean Water Act has expanded or contracted over the years. But there can be no dispute, thanks to a series of confusing Supreme Court decisions and regulatory inertia, that a property owner still doesn’t know precisely whether all or part of her land qualifies as “waters of the U.S.” This reality leads to the legitimate complaint from the regulated community that its cost of proposed development rises dramatically because of regulatory uncertainty.

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Taft Stettinius & Hollister LLP
Kim K. Burke and E. Chase Dressman

March 9, 2017

On Feb. 28, 2017, President Trump issued the executive order “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” Section 3 of the order provides:

 Sec. 3. Definition of “Navigable Waters” in Future Rulemaking. In connection with
the proposed rule described in section 2(a) of this order, the Administrator and Assistant Secretary shall consider interpreting the term “navigable waters,” as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).

Upon issuance of this executive order, many commentators claimed that it represented a reversal of the aggressive approach taken by the EPA and the Army Corps of Engineers in classifying remote wetlands and ponds as “navigable waters” that would subject them to the jurisdiction of the Clean Water Act. Justice Scalia’s opinion in Rapanos was and is known for its wit and clarity in addressing what the late justice considered a clear overstepping by the EPA and the Corps of their authority to classify virtually any body of water as subject to their permitting and other jurisdiction:

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Synergy Environmental, Inc.
Brink Young

February 21, 2017

SYNERGY ENVIRONMENTAL INC has successfully completed the Pennsylvania Department of General Services’ process for self-certification as a small business under the Commonwealth’s Small Business
Contracting Program. The small business designation was issued on February 10, 2017.

This designation will allow Synergy to partner with other team members (both smaller & larger entities) to meet small and minority business goals in regards to State Projects

Manko Gold Katcher & Fox
William Hitchcock

February 10, 2017

Land developers and remediators in Pennsylvania and New Jersey may soon have an easier time addressing soils containing benzo[a]pyrene, one of the most ubiquitous urban contaminants, thanks to updated information that was just released by U.S. Environmental Protection Agency (EPA). The new information comes from EPA’s Final Assessment of Benzo[a]pyrene, which was completed in January 2017 and is now part of EPA’s Integrated Risk Information System (IRIS). The assessment includes revised estimates of several important toxicological parameters that are used by EPA and state regulatory agencies to develop risk-based standards for the remediation of environmentally-impaired sites. While the Final Assessment concludes that benzo[a]pyrene is still a potent carcinogen, the revised parameters show that the chemical is not as toxicologically potent as was previously thought. Once the regulatory agencies incorporate this new information into their cleanup programs, it should result in less stringent cleanup standards for impacted sites regulated at the state and federal level.

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