News

Anderson Kill P.C.
Mark Garbowski

November 12, 2014

While international “tax inversion” deals found controversy and dominated the political headlines among merger and acquisition news stories this year, practicing attorneys are still focused on the nuts and bolts of making deals happen and protecting the interests of their clients on deals of all kinds. Insurance policies represent a significant asset class that is often overlooked by the people putting together such deals. Deal makers often spend a great deal of time negotiating the transfer of historic liabilities but little or no time on the insurance policies that will cover any pre-closing liabilities assumed. Whether the acquired company or division has liabilities resulting from securities transactions, financial activities, environmental damage, toxic torts, or professional activities, such as design work or healthcare, its insurance policies represent an important source of potential recovery for those losses. If you are advising a team that is acquiring another company and its liabilities, it will be vital to also acquire and properly value the insurance assets that might cover those liabilities.

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Greenberg Traurig LLP
Jerry Stouck

November 10,  2014

The First Litigation Challenge to EPA’s Greenhouse Gas (GHG) Rule is likely to be decided fairly soon after the December 1, 2014 deadline for comments on the rule.  Two separate suits brought by Murray Coal Corp. ask the D.C. Circuit to bar EPA from proceeding with the rulemaking, on the ground that EPA has no legal authority to regulate GHG emissions from existing fossil-fuel fired electricity generating plants.  Murray claims that section 111(d) of the Clean Air Act “expressly prohibits” EPA from regulating such those GHG emissions.  Murray’s final brief is due November 17., and given the importance of the issue and the close of the comment period on December 1 – after which EPA will begin addressing the comments. Many  expect the D.C. Circuit to issue a ruling reasonably promptly.

To recap, on June 2 EPA proposed its Clean Power Plan to require states to meet emission budgets for GHG pollution from existing power plants.  On October 28, issued a notice of data availability and issued a supplemental proposal shifting in some respects how those budgets would be calculated and how compliance would be demonstrated.  Comments on the main rule proposal close on December 1 and on the supplemental proposal on December 19.  Thus, the rulemaking schedule and the court’s briefing schedule roughly coincide.  After December 19, EPA is likely to begin considering comments and is free to issue the final rule whenever it has completed that task.

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Sheppard Mullin Richter & Hampton LLP
James Rusk

November 6, 2014

A landfill developer has asked the Supreme Court to review a decision of the Fifth Circuit holding that a jurisdictional determination by the U.S. Army Corps of Engineers is not final agency action subject to judicial review.  The Supreme Court previously held, in its 2012 Sackett opinion, that an EPA compliance order issued under the Clean Water Act is final and immediately reviewable under the Administrative Procedure Act.  But, so far, the Courts of Appeals have declined to extend Sackett to allow immediate review of a jurisdictional determination, which represents the Corps’ findings about whether a property contains wetlands or other waters of the United States subject to the Corps’ regulatory jurisdiction under Clean Water Act section 404.

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Sirote & Permutt PC
Charles R. Driggars

October 2, 2014

Of the three-letter acronyms for federal agencies that cause the most dread in CEOs, owners, officers and plant managers across the company,  EPA ( next, perhaps, to IRS) is probably right at the top. Ordinary regulatory actions (and civil suits) regarding alleged pollution violations are worrying enough; far worse, however, is the  specter  raised by notice by EPA (Environmental Protection Act)  that criminal investigations are under way.

EPA’s criminal enforcement actions resulted in more than $4.5 billion in combined fines, restitution and court-ordered environmental projects in fiscal year 2013 alone. In some cases, however, a wholly different kind of punishment can be – and has been – imposed, jail time. And this harsh penalty is utilized more than is commonly assumed.

One example: In March 2013, the owner of a Texas bio-diesel company was sentenced for 51 counts of wire fraud, 24 counts of money laundering and four counts of making false statements in the context of the Clean Air Act (CAA) violation after pleading guilty to participating in a scheme to defraud the EPA.   EPA, with the U.S. Secret Service, conducted the joint investigation; in the end, the individual received a $175,000 fine, 188 months in federal prison in addition to being ordered to pay almost $55 million in restitution.

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Pillsbury Winthrop Shaw Pittman LLP
Anthony B. Cavender

October 11, 2014

On October 6, 2014, the U.S. Court of Appeals for the Eleventh Circuit issued its ruling in the case of Adinolfe, et. at. v. United Technologies Corporation. The Court of Appeals reversed the decision of the lower court to dismiss, with prejudice, two toxic tort cases, involving hundreds of homeowners, at the pleading stage. United Technologies Corporation (UTC) is responsible for the operations of Pratt & Whitney, which operated an aircraft and rocket engine manufacturing plant that the plaintiffs allege released large quantities of toxic materials that migrated through groundwater to the properties of the plaintiffs, damaging their properties and even causing personal injuries.

The District Court presiding judge used a “Lone Pine” order which is used to manage discovery to require the plaintiffs in mass tort cases to provide prima facie factual support, including expert testimony, for their claims or run the risk of having those claims dismissed. See Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507, at *3-4 (N.J. Sup. Ct. Law Div. Nov. 18, 1986). The Court of Appeals decided that a Lone Pine order should not be used as a pre-discovery case management tool before the District Court judge rules on the legal sufficiency of a complaint, and therefore the decision to dismiss must be reversed.

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Pepper Hamilton LLP
Vicki R. Harding

October 10, 2014

Asarco LLC v. Goodwin, 756 F.3d 191 (2nd Cir. 2014) –

A reorganized company (Asarco) sought contribution for payment of environmental claims from beneficiaries of trusts created under John D. Rockefeller’s will. The district court dismissed the claims, and Asarco appealed to the 2d Circuit.

During Asarco’s bankruptcy, federal, state and local governments filed proofs of claim for environmental remediation and future response costs and natural resource damages. The claims related to two sites – mining facilities located in the Monte Cristo Mining Area (MCMA) and a former smelter plant located 40 miles away in Everett (Everett Smelter). The bankruptcy court approved settlement of the Everett Smelter claims in April 2008 and the MCMA claims in June 2009, resulting in unsecured claims of $38 million and just over $12.2 million respectively. Asarco’s plan of reorganization was approved in November 2009 and became effective in December 2009. The claims were paid on the effective date.

After emerging from bankruptcy, the reorganized Asarco sought to obtain reimbursement of the environmental remediation costs from other potentially responsible parties under CERCLA. In particular, Asarco’s predecessors had operated MCMA from 1903 to 1905 and the Everett Smelter from 1903 to 1912. Prior to 1903 the Everett Smelter was owned by a company (PSRC) that Asarco alleged was “operated by [John D.] Rockefeller directly and through his personal agents acting at his direction and under his control.” Rockefeller also had interests in companies that owned or operated some of the MCMA mines. Relevant activities included ownership and operation of the sites resulting in discharge of various hazardous waste between 1892 and 1903.

To accomplish the goal of timely cleanup of hazardous waste sites, with the costs borne by those who are responsible, “CERCLA looks backward in time and imposes wide-ranging liability.” The parties agreed that if Rockefeller was alive today he would be liable under CERCLA. They also agreed that Asarco had settled its CERCLA liability pursuant to a judicially approved settlement. So, the question for the court was whether there was a right of contribution against the beneficiaries of a potentially responsible party’s estate.

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Contact: Brink Young                                                     FOR IMMEDIATE RELEASE
Phone: 484-369-5000
byoung@synergyenvinc.com                                                        October, 1 2014

ROYERSFORD, PA: Synergy Environmental, Inc. announces the launch of the SECOND VERSION of their Compliance & Inventory software,  FUEL-VIEW

FUEL-VIEW is a proprietary Software Program developed to simplify the collection of Leak Detection and Inventory Data. It can manage your entire retail or commercial fuel operation remotely.

Manage your Alarms and Fuel Inventory from the same program. It couldn’t be easier.

View all of your data with the click of a button. Get a station by station report or the 30,000 foot look at your entire portfolio.  Never be stuck without your compliance data again. Fuel-View keeps your records for 5 + years.

If you are still manually managing your underground storage tanks, you need to see this! Fuel-View will not only simplify the way you manage your tanks, but save you money at the same time. With the cost of running a retail fuel operation, can you afford not to look into Fuel-View as a solution? Check out the Features & Benefits of Fuel-View

For a Free Demo of Fuel-View, Contact Brink Young at Synergy Environmental today.

Synergy Environmental, Inc.
David Robinson, LSRP September 21, 2014

For the past four years the NJDEP Bureau of Inspection and Review (BIR) have been performing in depth review of most documents submitted by LSRP’s. Due to the large number of documents being submitted to the NJDEP, the Department has determined that they will be deferring reviews of most non-Response Action Outcome (RAO) documents (e.g., Remedial Investigation Workplans) until the RAO is submitted.

Inspection of documents that the Department considers sensitive to receptors will be reviewed to assure that sensitive populations are protected. Items that require pre-approval (permits, CEAs, etc.) will still be reviewed in a timely fashion. This change in process means that it is more important than ever to make sure that non-RAO documents are administratively and technically complete, and LSRPs should use NJDEP’s Technical Consultation when necessary, especially when using professional judgment to vary from the Technical Requirements for Site Remediation.

David Robinson is a Senior Associate and Manager of Synergy Environmental’s Cherry Hill, New Jersey Office.