September 19, 2017

Where Insurance Coverage Meets the Environment: Insights from 2016 and 2017

Source:, September 18, 2017
By: Martha N. Donovan

The twin sister to environmental law is insurance. The two intertwined subject matters are akin to bread and butter; one is not as good without the other. An attorney who can handle one, but not the other, is fighting with one hand tied behind her back. It behooves the environmental practitioner to be fluent in both pursuits since insurance can serve the purpose of paying a client’s cleanup bills.

As Baby Boomer practitioners, many of us have been fortunate to participate in the development of environmental and related insurance coverage law in New Jersey over the last three decades. We have seen a number of dramatic developments in both fields. Moreover, as environmental laws expanded to impose broader liability on the regulated community, the availability of liability policies to pay for those costs also expanded.

On the insurance side we have seen “regulatory estoppel” applied to prevent carriers from applying the “sudden and accidental” pollution exclusion in post-1973 policies; the wholesale rejection of the “owned property” exclusion where third-party property damage is concerned (including groundwater which belongs to the State); the adoption of a “continuous trigger of coverage” to maximize an insured’s available coverage; the rejection of the imposition of the “absolute pollution exclusion” on so-called non-traditional pollution (such as mercury poisoning at a day care facility); and the application of the preponderance of the evidence standard to prove the existence and terms of “lost” insurance policies.…

September 19, 2017

EPA to dig up contaminated soil in Lockwood superfund site

Source:, September 19, 2017
By: Matt Hudson

A large multimillion-dollar excavation project will begin this fall to remove potentially toxic chemicals from part of a 580-acre federal Superfund site in Lockwood, which was used for a chemical repackaging company and a tanker-cleaning operation.

The land sits to the north of Interstate 90.

Authorities have already worked with property owners and residents nearby to mitigate groundwater and air quality concerns. They say there is little to no risk to residents living near the area, but still the land must be cleaned before it can be used.

The Environmental Protection Agency plans to dig up about 28,000 cubic yards of land in the area, where high levels of the toxic chemicals, referred to as “contaminants,” are still found in the soil and groundwater.

Superfund cleanup sites are designated by the Environmental Protection Agency and funded by Congress. Money is set aside to clean up or remediate sites that are contaminated by toxic chemicals.

“This particular contaminant — the volatile (chemical) — binds with that clay soil,” said Roger Hoogerheide, an EPA remedial project manager for the site. “So we’re going to dig it out, excavate it, and we’re land-farming it.”

September 18, 2017

San Diego steps up containment battle as hepatitis A outbreak kills 16

Source:, September 13, 2017
By: Bianca Seidman

Private cleaning crews and public health workers are mobilized on the streets of San Diego, working to stop a hepatitis A outbreak that has claimed at least 16 lives so far.

San Diego city and county officials said they are collaborating on solutions to the aggressive outbreak –- with at least 421 known cases in San Diego county, including 292 hospitalizations and 16 deaths, since last November. They have stepped up containment plans, which now include everything from street cleaning and vaccination to distributing flyers and possible temporary housing for the California city’s homeless, who have been hard-hit by the virus.

“We must continue to work collaboratively to stop this crisis and save lives,” San Diego Mayor Kevin L. Faulconer said in a statement today.

On Monday, the city of San Diego increased its sanitation measures. The city hired a private contractor to spray the streets with a bleach and water solution to kill bacteria, began installing outdoor hand washing stations and earmarked 14 bathrooms to stay open 24 hours per day to aid the sizable homeless population, who officials say make up the majority of the outbreak’s victims.…

September 14, 2017

Harvey Stokes More Superfund Liability Risk

Source:, September 7, 2017
By: Steven M. Sellers

The severity of superstorms like Katrina, Sandy, and now Harvey has significantly raised the liability stakes for companies over the release of toxic substances from hazardous waste and chemical storage sites.

Environmental lawyers have warned for years that manufacturers can protect the environment and avoid potentially enormous litigation costs by taking steps to minimize cyclone-related chemical spills.

Those warnings make it unlikely hazardous substance releases in the Houston area, similar to prior defenses to cleanup liability related to the storms in Louisiana and New Jersey, can be excused as an unforeseen and unpreventable “Act of God,” lawyers experienced in the area tell Bloomberg BNA.

How much risk companies are expected to face from new toxic tort and hazardous waste litigation tied to Harvey is uncertain, the lawyers said.

But it no doubt will depend not only on how much contamination occurred and where the contaminants ended up, but also on the kinds and extent of storm-related protective measures put in place at contaminated and chemical sites in Houston before the hurricane hit.

“There have been two ‘Once in 500 year storms’ in the past 10 years,” said Patrick Parenteau, a professor of environmental law at Vermont Law School in Burlington, Vt. “Katrina taught us that the petrochemical infrastructure on the Gulf Coast was particularly vulnerable to storms like Harvey.”…

September 14, 2017

Lead at Cross Bayou site 31 times safe level: site report

Source:, September 14, 2017
By: Lex Talamo

It’s unclear whether the City of Shreveport will continue to buy land at the Cross Bayou project site now that the city council has killed Mayor Ollie Tyler’s bond funding proposal.

Shreveport Chief Administrative Officer Brian Crawford at a public meeting hosted Aug. 30 by the Greater Shreveport Chamber of Commerce that the city would proceed with negotiating for the land along Cross Bayou regardless of whether the Pelicans chose Shreveport as home for a minor league affiliate.

If that remains true, the city’s continuing interest in Cross Bayou property raises another question: who would pay for the remediation of a 10-acre tract that currently has soil and groundwater contamination problems for which state regulators are demanding a clean-up plan.

Councilwoman Stephanie Lynch cited in her recent resolution urging Mayor Ollie Tyler to decline a New Orleans Pelicans team for Shreveport that concerns about environmental issues at part of the development site had been largely left out of public discussion.

Concerns about soil and groundwater contamination at the site are real — and probably time-consuming to address.…

September 13, 2017

Michigan Town The Latest To Uncover PFC Contamination

Source:, September 13, 2017
By: Peter Chawaga

PFC.RegAnother community appears to be struggling with a drinking water contaminant that continues to plague treatment facilities around the country.

Belmont, MI, is the latest town to uncover perfluorinated chemicals (PFCs) in its water sources.

“Toxic chemicals from industrial waste dumped in unlined trenches at a long-forgotten landfill have turned up this year in private residential drinking water wells north of Grand Rapids, and public health officials worry the contamination may have been occurring unnoticed for decades,” reported

The contamination has been traced back to Wolverine World Wide, a local shoe company, which dumped sludge from tanning pigskin in a nearby land tract.

“Wells on adjacent property are testing positive for per- and polyfluoroalkyl substances called PFAS, (also called perfluorinated chemicals, or PFCs), which Wolverine used at its former tannery in Rockford to waterproof leather for shoe manufacturing,” per

In response, Wolverine World Wide has offered potentially affected residents bottled water and kitchen filters.

“According to the Michigan Department of Environmental Quality, of the 21 wells with verified results so far, 14 show some level of PFAS and 7 are above the federal benchmark at which chronic exposure is considered to become unsafe,” MLive reported. “In one well, officials are aghast at the contamination level and are retesting it to be absolutely certain the result is accurate.”

Sadly, Belmont is not the only place struggling with PFC contamination.

“Some 15 million Americans across 27 states are drinking water that could be contaminated with potentially carcinogenic man-made chemicals without even realizing it,” per The Huffington Post. “Perfluorochemicals … were detected in 162 U.S. drinking water systems in recent Environmental Protection Agency testing.”

To read more about PFC problems visit Water Online’s Source Water Contamination Solutions Center.

Image credit: “ 2012-08-10 025,” Liz Strauss © 2012, used under an Attribution 2.0 Generic license

September 13, 2017

Chemical from Hamilton sewer plant discolors Crosswicks Creek

Source:, September 1, 2017
By: Kevin Shea

The Hamilton Water Pollution Control sewerage plant, with Crosswicks Creek below it in this Google image.

The Hamilton Water Pollution Control sewerage plant, with Crosswicks Creek below it in this Google image.

A chemical used in wastewater treatment at the township sewer plant was pumped into the Crosswicks Creek earlier this week, the township said Friday.

The issue was reported to the state Department of Environmental Protection, who said Friday they were advised and Hamilton is properly handling the matter.

In a statement, Hamilton Mayor Kelly Yaede’s office said the incident occurred Monday at the township’s Department of Water Pollution Control facility off Hobson Avenue.

A maintenance crew found that ferric chloride had pumped through the system and discolored the water that is routinely discharged in the creek following the treatment process.

“The treatment plant has not exceeded any of its permit parameters for routine discharge during this past month (August),” the statement said.

The township said they reported the incident to the DEP and had not received any further response as of Friday morning, the statement said.

The facility is south of Interstate 195 between Interstate 295 and Route 206, just north of Bordentown. The plant can treat 16 million gallons per day from 389 miles of sewer lines and 39 pumping stations in its 45-square-mile service area.…

September 12, 2017

Cleanup plan for highly contaminated creek near MetLife Stadium inches forward

Source:, September 11, 2017
By: James M. O’Neill

After seven years of study and research, the federal government is inching closer to a proposed cleanup plan for the highly contaminated Berry’s Creek in the Meadowlands.

The cleanup of sediment contaminated with mercury and PCBs will likely wind up being some combination of dredging and capping, and the plan should be ready by March 2018, according to Doug Tomchuk, the Environmental Protection Agency’s project manager for the site.

The cleanup would still be three or more years away.

Mercury levels in Berry’s Creek, a marshy 6-mile tributary of the Hackensack River that encircles MetLife Stadium, are among the highest ever recorded in a freshwater ecosystem in the United States.

The EPA will hold an informal public availability session Tuesday night to provide updates to area residents and get feedback. The meeting is scheduled from 6 to 7:30 p.m. at the Rutherford Public Library.

Berry’s Creek starts near Teterboro Airport and twists around MetLife Stadium and the New York Giants’ training facility. It flows through parts of Teterboro, Wood-Ridge, Lyndhurst, Carlstadt, Rutherford and East Rutherford.…

September 12, 2017

Practical Tips for Owners and Contractors Impacted By Hurricanes Harvey and Irma

Source:, September 8, 2017
By: Seyfarth Shaw LLP

Anyone watching what has happened in Houston, and what is predicted to happen in Florida, immediately thinks about the safety and well-being of those affected by Hurricanes Harvey and Irma. Once the rain stops, the water recedes, and the aftermath of destruction is assessed, both areas and their residents will be looking at a long road to recovery, much in the same way as New Orleans in 2005 (Hurricane Katrina) and New York/New Jersey in 2012 (SuperStorm Sandy). Among the many challenges that lie ahead, owners and contractors of existing projects, whether in Houston, Florida, or in other parts of the country, as well as those involved in new projects to rebuild, must take steps to assess the impacts and identify their contractual rights and obligations. For those in Houston and Florida, this will no doubt mean working closely with their insurance carriers to recover project related losses. For those in other parts of the country, contracting parties need to assess the impact, if any, on the projects and ascertain their available remedies.

Potential Hurricane-Related Impacts

Hurricanes can cause supply side and demand side issues with raw materials, supplies, and equipment, especially at critical junctures such as ports and warehouses due to their location on or near the coast. Natural disasters often affect the construction industry in the form of price increases and material scarcity. For example, oil shortages during a hurricane can greatly affect commercial contractors who rely upon diesel-powered machinery. Similarly, natural gas shortages cause prices to spike, which increases the cost of producing asphalt, paints, and tires for heavy machinery.…

September 11, 2017

Texas Supreme Court Upholds $22.7M Award in Gas Production Contamination Case

Source:, September 11, 2017

Holding that the Texas Railroad Commission’s statutory authority to regulate contamination from oil and gas operations does not preclude private suits for damages, the Texas Supreme Court upheld a $22.7 million award in a suit alleging contamination from natural gas production.  Forest Oil Corp. v. El Rucio Land & Cattle Co., No-14-0979 (Tex. February 8, 2017).

For more than 30 years, the defendant, Forest Oil Corporation, produced natural gas on plaintiff James McAllen’s property.  In 2004, McAllen learned that Forest had contaminated the property and left behind oilfield tubing contaminated with naturally occurring radioactive material.  McAllen sued and the defendant compelled arbitration under an agreement settling a previous lease dispute.  Meanwhile, McAllen contacted the Texas Railroad Commission (RRC) about the contamination.  The RRC referred the defendant to a cleanup program under which the defendant would propose and implement plans to remediate the property.  The RRC approved parts of the defendant’s remediation proposal, but had not yet approved a final remediation plan.  The arbitration panel denied the defendant’s request to stay proceedings until the RRC completed its assessment of the remediation plan.  The panel awarded McAllen $16 million in damages and $6.7 million in attorney fees.  The panel further declared that, under the agreement between the parties, the defendant was responsible for all past and future investigation and remediation costs related to its production activities.

On review in the Texas Supreme Court, Forest argued that the RRC had exclusive, or at least primary, jurisdiction over claims for environmental contamination resulting from oil and gas operations. The defendant pointed to several statutes that it contended made the RRC “solely responsible” or gave it “sole authority” for prevention and abatement of pollution from oil and gas activities, or otherwise conferred enumerated statutory and regulatory causes of action to the exclusion of common law claims.   In each case, the court did not find the express legislative intent necessary under Texas law to abrogate private common-law claims.  The defendant also argued that allowing a private plaintiff to seek damages or injunctive relief for remediation while the RRC regulatory process was ongoing exposed defendants to potential double liability, which is reason enough to confer exclusive jurisdiction on the RRC.  The court acknowledged this possibility, but dismissed it as one “for the Legislature.”…