Hazmat Feed

Failure to Provide Notice to Excess Insurer Dooms Insurance Recovery for Environmental Settlement

Siros_Steven_COLOR

 

By Steven M. Siros

A California appellate court recently affirmed a lower court decision that had concluded that an insured’s failure to obtain consent from its excess insurer barred it from recovering insurance proceeds from that insurer.  In 2001, a lawsuit was filed by residents of a Missouri town seeking damages against the insured relating to alleged contamination from a lead and cadmium smelting operation.  Zurich Insurance Company was the primary liability insurer and had agreed to provide a defense of the action.  Fidelity & Casualty of New York (“F&C”) was an excess carrier and had received notice of the underlying litigation.  The matter was resolved during a mediation and the insured agreed to settle the residents' claims for $55 million.  However, F&C was not notified of the settlement until a month later. 

SmokestacksThe insured sued both its primary and excess carriers seeking coverage for its $55 million settlement.  In response to the lawsuit, F&C pointed to a consent clause in its excess insurance policy that required the insured to seek consent from its insurer prior to settling any potential covered claim.  F&C argued that since its insured had not sought F&C’s consent prior to settling the lawsuit, it had no coverage obligation.  In response, the insured argued that it had notified F&C of the mediation session and that F&C could have participated in said session but elected not to do so.  The court rejected that argument, noting that not only had the insured  not sought authority from F&C but it also had not notified F&C of the time and place of  the mediation.  Instead, the court concluded that “the holder of a liability policy cannot present to a liability insurer a fait accompli in the form of a done-deal settlement of a case in contravention of an insurance policy’s consent clause.  Doing so forecloses the liability insurer from the ‘opportunity’ of disputing the amount of damages.”  Please click here to read the court’s opinion. 


Steven Siros Presenting at a Webinar on Chemical Fingerprinting

Torrence_Allison_COLOR

 By Allison A. Torrence

On Wednesday, February 10, 2015 from 1:00 p.m.-2:30 p.m. (Central), Partner Steven Siros will be presenting at a DRI webinar titled “Relying on Chemical Fingerprinting as a Line of Evidence in Allocation Proceedings”.  The webinar will provide insights on the technical aspects of chemical fingerprinting for a variety of contaminants, including PCBs, dioxins, and chlorinated solvents.  The webinar will also provide an overview of how courts have treated chemical fingerprinting from an expert witness standpoint as well as a case study demonstrating how this technique can be used to delineate co-mingled plumes. Michael Bock, with Ramboll Environ will also be presenting at the webinar.  Here is a link to the webinar brochure.


President Obama Appoints Water Czar to Address Flint Water Issues

Siros_Steven_COLOR
By Steven M. Siros

 

Yesterday evening, the Department of Health and Human Services designated Dr. Nicole Lurie, an agency assistant secretary, to lead the federal government’s response to the elevated lead levels allegedly found in the drinking water being provided by the City of Flint, Michigan, to its residents.  This designation came on the heels of a meeting between Flint’s mayor and Valerie Jarrett in Washington, D.C.  The federal government has elected to play a significant role in addressing this crisis, with President Obama signing an emergency declaration on Saturday which provided Flint with access to up to $5 million in federal funds.  The crisis began in 2014 when Flint stopped getting water from Detroit and began obtaining its drinking water from the Flint River in an effort to lower costs. 

FlintThe appointment of a federal “czar” to coordinate a federal response to contamination of a local drinking water system is somewhat unusual.  However, it is likely that the political nature of this issue, coupled with the fact that  U.S. EPA may have been aware as far back as April 2015 that Flint’s water supply was at risk for lead contamination, likely contributed to this decision.  For those that watched the Democratic presidential debate on Sunday, the Flint water issues were discussed by the candidates, with blame not surprisingly being directed at Republican Governor Rick Snyder. 

Although Flint has stopped obtaining water from the Flint River, the risk has not necessarily been alleviated due to the damage that the corrosive water likely caused the City's water distribution system, including pipes leading to individual residences.  As such, there is a continuing effort to provide residents with bottled water and water filters for their homes while a more long-term solution is investigated.  Several class-action lawsuits have already been filed and more are likely as this crisis continues to evolve.  In addition, multiple investigations have been launched by both the Michigan State’s Attorney  and the U.S. Attorney’s Office for the Eastern District of Michigan.

 


Are Stricter U.S. EPA Pesticide Registration Reviews on the Table for 2016?

Bees-007  Siros_Steven_COLOR

 By Steven M. Siros 

In 2015, the United States Court of Appeals for the 9th Circuit vacated U.S. EPA’s registration of the insecticide sulfoxaflor, finding that U.S. EPA lacked adequate data to ensure that its registration would not harm non-target species, and more specifically, bees.  Following the 9th Circuit’s decision in September 2015, U.S. EPA reversed its position on two other pesticide registrations.  In October 2015, U.S. EPA indicated that it planned to ban the agricultural use of chlorpyrifos notwithstanding U.S. EPA's previously stated intention to work with industry to mitigate the risks as opposed to an outright ban.  In November 2015, U.S. EPA sought to voluntarily vacate its prior registration of Enlist Duo on the basis that U.S. EPA had obtained new data suggesting that the combined toxicity of its two ingredients (glyphosate and 2,4-D) was higher than originally believed.  U.S. EPA was facing litigation in the 9th Circuit with respect to both of these pesticides which likely played a role in those decisions.  In addition, U.S. EPA’s anticipated decision with respect to the reregistration of glyphosate has been delayed on multiple occasions and is now expected sometime in 2016. 

These actions are all suggestive that U.S. EPA has elected to adopt a more stringent approach with respect to its risk reviews of pesticides under the Federal Insecticide, Fungicide and Rodentcide Act (FIFRA) and the Endangered Species Act (ESA).  Such an approach is likely to result in significant delays in getting pesticide products registered and to the market. We will continue to follow these issues as we await U.S. EPA’s glyphosate reregistration decision which is likely to be the next significant U.S. EPA action in the FIFRA arena.

 


U.S. EPA Releases 2015 Enforcement Statistics

Siros_Steven_COLOR
 By Steven M. Siros  Usepa

The United States Environmental Protection Agency ("U.S. EPA") recently announced its 2015 enforcement statistics, noting that for fiscal year 2015, U.S. EPA initiated enforcement actions resulted in $404 million in penalties and fines.  In addition, companies were required to invest more than $7 billion to control pollution and remediate contaminated sites; convictions for environmental crimes resulted in 129 years of combined incarceration for convicted defendants; and there was a total of $39 million committed to environmental mitigation projects that benefited communities throughout the United States. 

The largest single penalty was the result of a Clean Air Act settlement with two automobile manufacturers that resulted in a $100 million penalty, forfeiture of emissions credits and more than $50 million being invested in pollution control and abatement measures.  U.S. EPA's 2015 enforcement numbers were up from 2014 ($100 million in fines and penalties collected in 2014).  

Please click here to go to U.S. EPA's 2015 enforcement statistics website.

 

 


CERES Confirms Business Supports Climate Change Action

GraysonBy E. Lynn Grayson Paris 2015

CERES is urging world governments meeting now at the COP21 this week in Paris to produce a strong climate agreement. CERES believes that recent actions confirm that the business and financial communities support clean energy and a low-carbon transition. The actions cited by CERES include: 

  1. More than 1600 companies in the U.S. have signed the CERES Climate Declaration calling action on climate change one of the greatest economic opportunities of the 21st century;
  2. Six major banks including Bank of America, Citi, Goldman Sachs, JPMorgan Chase, Morgan Stanley and Wells Fargo have issued statements calling for cooperation of governments in reaching a global climate agreement;
  3. 14 major food and beverage company CEOs including Coca-Cola, General Mills, Unilever, Mars and Nestle USA sent a joint letter to U.S. and world leaders pledging to accelerate their own business action on climate change and urging governments to forge a robust international climate agreement in Paris this month;
  4. 365 companies and investors support EPA’s Clean Power Plan, the biggest carbon reducing measure in the history of the U.S.;
  5. Nearly 350 global institutional investors managing $24 trillion have called on government leaders to establish a meaningful price on carbon and phase out subsidies for fossil fuels; and
  6. Nearly 100 Fortune 500 companies have joined the White House-led American Business Act on Climate Pledge, committing them to reduce their own GHG emissions and boosting their investments in low-carbon energy and technologies.

According to CERES, the business community message to world governments in Paris is clear: As the business and financial communities are stepping up on climate, policymakers should do the same. Learn more about the work of CERES and the efforts undertaken by business and financial entities in its November 2015 newsletter.

The real work of the 150 world leaders meeting in Paris starts today in an effort to produce a landmark agreement to limit rising global temperatures to no more than 2 degrees Celsius above pre-industrial levels this century. While many expect this important decision will be worked out over the next two weeks, there is much work, negotiation and compromise that must take place to achieve the anticipated successful outcome.

We will continue our special series on important developments at the COP21 Paris climate change discussions over the next two weeks.


Lynn Grayson and Steven Siros Publish Article on U.S. Legal and Regulatory Developments in Nanotechnology

Torrence_Allison_COLOR

 By Allison A. Torrence

 

542af39b10b9c8530f00003e

Lynn Grayson and Steven Siros have published an article in the most recent issue of DRI’s Toxic Tort and Environmental Law Newsletter titled Nanotechnology: U.S. Legal and Regulatory Developments. In the article, Ms. Grayson and Mr. Siros discuss how nanotechnology affects every sector of the U.S. economy and impacts our lives in a myriad of ways through the 1,600 nanotechnology-based consumer goods and products we use on a daily basis. The article provides an overview of how nanotechnology is defined, insights on the regulatory framework and recent developments, possible concerns about nanomaterial use, and risk management considerations for U.S. businesses utilizing nanotechnology.

The full article is available here.


Sustainable Energy Developments

GraysonBy E. Lynn Grayson 

A youth cools himself off at a water fountain near Marina Bay in Singapore July 27, 2015. Fifty years ago, Singapore was rationing water and struggling with smelly rivers devoid of fish and choked with waste from shipbuilding, pig and duck farms, and toilets that emptied directly into the streams. At that time, the 700 sq km island nation relied on three protected reservoirs and water imported from neighbouring Malaysia. Today, Singapore collects rainwater from two-thirds of its land through an 8,000-km drain network into 17 reservoirs; reclaims "used water" from a deep tunnel sewerage system up to 60 m below ground; and is developing technology to halve the energy used to desalinate seawater. Picture taken July 31, 2015. REUTERS/Edgar Su  - RTX1MS4LToday Thomson Reuters’ published my blog, Executive Perspective: UN Sustainable Development Summit: Sustainable Energy Developments. The blog details the new 2030 UN Sustainability Development Agenda and how the recently adopted sustainable developments goals (SDGs) will influence sustainable energy growth around the world in the coming years.

Thomson Reuters’ Sustainability blog provides a wealth of information and resources on this important topic. I like to review the Editors’ Picks to get see the latest and most interesting sustainability developments.


US EPA Publishes Proposed List of National Enforcement Initiatives for FY2017–19

Bandza_Alexander_COLOR By Alexander J. Bandza

Industry-fabric-silos-tanker

On September 15, 2015, US EPA’s Office of Enforcement and Compliance Assurance published a proposed list of national enforcement initiatives (NEIs) for fiscal years 2017–19.  This latest NEI list includes NEIs from the last round (FY2014–16) as well as three new potential NEIs that US EPA is considering. 

Continue reading "US EPA Publishes Proposed List of National Enforcement Initiatives for FY2017–19" »


U.S. EPA Releases One-Week Internal Review on the Colorado Mine Blowout, Concludes the Incident Was “Inevitable”

Bandza_Alexander_COLORBy Alexander J. Bandza

Colorado Gold Mine Release

Earlier this week, the U.S. EPA released its “Internal Review of the A
ugust 5, 2015 Gold King Mine Blowout,” which provides the EPA Internal Review Team’s “one week rapid assessment” of the events and potential factors contributing to the Colorado mine adit blowout earlier this month.  The Review sets out a series of conclusions and recommendations, many of which lay the foundation for absolving the U.S. EPA of any wrongdoing here while proposing extensive recommendations for the future.

Continue reading "U.S. EPA Releases One-Week Internal Review on the Colorado Mine Blowout, Concludes the Incident Was “Inevitable”" »