Robert S. Sanoff

Robert S. Sanoff

Foley Hoag LLP

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What Triggers Excess Coverage In An Environmental Case: Not Necessarily the Payment of the Full Underlying Policy Limits

More and more excess insurers are taking the position that a policyholder which settles with primary or low level excess insurers for less than the full amount of the policy limits has waived its right to obtain coverage from...more

9/3/2014 - Contamination Excess Policies Insurers Policy Limits

CERCLA’s Three Year Statute of Limitations for Contribution Applies To Non-CERCLA Settlements

Parties which settle environmental liability in a judicially approved settlement have three years from the date of that settlement in which to seek contribution even if the settlement is not a CERCLA settlement. That is the...more

8/28/2014 - CERCLA Consent Decrees Contribution Claims Environmental Liability Judicial Settlement Agreements Statute of Limitations

Importance of Judicial Approval of CERCLA Settlements

Before a Superfund settlement becomes enforceable, it must be reviewed by a federal court to confirm that it is fair, reasonable, and consistent with CERCLA’s objectives. This judicial review is at the heart of CERCLA’s...more

8/13/2014 - CERCLA Environmental Policies Settlement Superfund

Settling Parties In Government Consent Orders Have CERCLA Claims For Contribution Not Cost Recovery

To the extent there was any remaining uncertainty, the Sixth Circuit has now made crystalline that a party settling some or all of its liability under CERCLA with the United States or a state has a contribution claim under...more

7/17/2014 - CERCLA Consent Order Contribution Claims EPA Settlement

Absolute Pollution Exclusions Are Absolute When There Has Been Pollution

Pollution exclusions first became routine in liability policies in the early 1970s. After a decade of often unsuccessful litigation trying to enforce those exclusions, insurers introduced a so called “absolute” pollution...more

7/3/2014 - Commercial General Liability Policies Contamination Policy Exclusions

Is Death A Defense To CERCLA Liability?

In contrast to the early days of Superfund when no argument for extending CERCLA liability was too far-fetched, the Second Circuit recently rejected one of the all-time “Hail Mary” passes for CERCLA contribution. The case,...more

6/30/2014 - CERCLA Coal Mines Contaminated Properties Contamination Environmental Liability Settlement Superfund

Do Statutes of Repose Under CERCLA Really Require Supreme Court Review

Even Superfund lawyers are likely to find the Supreme Court’s decision yesterday in CTS Corporation v. Waldburger to be of limited interest. Unable to reach an agreement about a federal “toxic tort” cause of action, Congress...more

6/11/2014 - CERCLA Contaminated Properties CTS v Waldburger Environmental Liability Environmental Policies Hazardous Substances SCOTUS Statute of Limitations Statute of Repose Water

CERCLA’s Statutory Liability Defenses — How Strict Is CERCLA Liability?

It was no surprise that the Second Circuit in In re September 11 Ligitation recently affirmed the lower court’s ruling that contamination caused by the 9/11 attacks was within CERCLA’s “Act of War” defense. Although CERCLA...more

5/5/2014 - CERCLA Contamination Liability

CERCLA’s Dark Pathways Around Due Process

Most people would assume that, when the United States takes action directly impacting an individual, constitutional due process would ensure that individual has an opportunity to test the government’s action in court. That...more

4/28/2014 - CERCLA Due Process EPA Foreign Intelligence Surveillance Act Judicial Review

CERCLA Principles in Child Pornography Cases

Although one might not ordinarily think to associate child pornography and pollution, the two were linked at an oral argument yesterday before the United States Supreme Court. Specifically, in a child pornography case, the...more

1/24/2014 - CERCLA Child Abuse Child Pornography

The Emerging Non-Expansive View of CERCLA Liability: The Decline of Tanglewood East

The specter of environmental harm used to frighten courts and spawned a generation of decisions extending Superfund liability to virtually any party with a nexus to a site that was contaminated. One case that signaled just...more

1/16/2014 - CERCLA Contaminated Properties Environmental Liability Environmental Policies Superfund

Enforcing CERCLA’s Three Year Statute of Limitations for Removal Actions

Although courts are sometimes reluctant to enforce them, there really are hard stops in CERCLA, particularly the three year statute of limitations for recovery of costs incurred in a removal action. ...more

1/7/2014 - CERCLA Removal Statute of Limitations Superfund

Environmental Liability of Dissolved Corporations in Delaware is Forever

Ever since the Supreme Court’s decision in Citizen’s United, an effort has been made to humanize corporations, culminating in Mitt Romney’s infamous pronouncement that “Corporations are people my friend.” Now it turns out...more

12/11/2013 - Environmental Claims Environmental Liability

Differentiating Between Junk Science and Admissible Expert Opinion in Pennsylvania

In environmental personal injury cases, proof of causation is key and that causation almost always hinges on expert opinion. A recent appellate decision in Pennsylvania in Snizavich v. Rohm and Haas Company provides useful...more

12/11/2013 - Causation Environmental Claims Expert Testimony Expert Witness

CERCLA’s Broad Sweep of Liability For Owners

Some decisions are valuable not because they make new law but because they reaffirm well known principles of law. City of Banning v. Dureau is one such decision. There, a federal district court in California ruled that an...more

11/22/2013 - CERCLA Contaminated Properties Due Diligence Hazardous Substances Strict Liability

Is the Absolute Pollution Exclusion Absolute? It Depends on Which State Answers the Question

The battle over the scope of the absolute pollution exclusion in general liability policies continues to be fought in the context of defective drywall manufactured in China. An earlier blog entry discussed a Virginia court...more

10/10/2013 - China Chinese Drywall Commercial General Liability Policies Pollution Exclusion

Sale of a Usable Waste Defense — Another Instance of the Unstated Rule of CERCLA Liability

Extending its string of CERCLA PCB losses in the Midwest, NCR Corporation was recently found liable for contribution based on its sale of waste scrap from its manufacture of carbonless copy paper in Michigan. In...more

10/3/2013 - CERCLA Discharge of Pollutants Hazardous Substances PCBs Waste Disposal

The Seventh Circuit Still Wrong: Bernstein v. Bankert

Late last year I blogged on the dubious decision by the Seventh Circuit in Bernstein v. Blankert which held that a settling CERCLA party did not resolve its liability to the government until it had performed all of its...more

8/6/2013 - CERCLA Consent Decrees EPA

Environmental Nuisance Claims — It Helps To Have Experts

The old warning that “past performance is no guarantee of future results” apparently applies not only to investments but also to environmental nuisance suits in Tennessee. ...more

7/19/2013 - Environmental Claims Expert Testimony Expert Witness Litigation Strategies Nuisance Trials

The Real Risk of Unregulated Air Pollution

Sometimes the most valuable research turns out to be a confirmation of the obvious. Fitting that bill is the study released yesterday in the Proceedings of the National Academy of Science documenting the substantially...more

7/9/2013 - Air Pollution China Clean Energy Coal Coal Ash Environmental Assessments EPA National Academy of Science

CERCLA Is Still Constitutional

To paraphrase Shakespeare, United States v. Sterling Centrecorp, Inc., is a great feast of legal argument. The PRP in that case purchased the assets of a mining company whose operations in California had caused releases of...more

6/26/2013 - CERCLA Commerce Clause Contaminated Properties Discharge of Pollutants Environmental Liability Hazardous Substances

What To Do When You Are Issued A CERCLA Injunction To Perform A $1.5 Billion Cleanup — Lower Fox River Superfund Update

In a 78 page decision in the Lower Fox River Superfund case issued last month, the federal court issued an injunction against NCR Corp. and three other PRPs requiring them to perform a $1.5 billion remedy. No company ever...more

6/13/2013 - CERCLA Environmental Liability NCR Corp. PRP Superfund

CERCLA Liability For Relocation of Hazardous Waste — Is There Any Limit?

Just as tortfeasors take their victims as they find them, so PRPs take their hazardous waste sites as they find them. This rule has been around since the beginning of CERCLA and means that a party which arranges for the...more

6/4/2013 - CERCLA Environmental Liability Hazardous Substances PRP Third-Party Wetlands

Do Liability Policies, Particularly Pollution Liability Insurance Policies, Exclude Coverage for All Injunctions? The Fifth...

The Fifth Circuit handed down an important decision last week, Louisiana Generating LLC v. Illinois Union Insurance Company, clarifying the scope of coverage under a Premises Pollution Liability Insurance Policy. The...more

5/22/2013 - Clean Air Act Duty to Defend Injunctions Insurers Pollution Liability Insurance

Why Trial Courts Are Reluctant To Exclude Scientific Evidence in Toxic Tort Cases

Environmental litigation, particularly toxic tort litigation, inevitably turns on scientific evidence about causation. Beginning with the Supreme Court’s Daubert decision in 1993, trial courts have repeatedly been admonished...more

5/21/2013 - Causation Daubert Hearing Expert Testimony

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