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How Many Occurrences? Determining the Number of Occurrences for Fracking-Related Claims in CGL Policies

The controversy surrounding the use of the natural gas drilling process of hydraulic fracturing (fracking) to extract oil and gas is well-documented. While proponents argue that fracking presents the opportunity for an...more

Brownfield land in the UK: directors’ and officers’ liability

Introduction - In this first in a series of briefings on topics relevant to those involved in brownfield land, we look at the issue of directors’ and officers’ personal liability....more

Shutting Down a Capital City: How High Will Business Interruption Claims Go?

On Thursday, January 9, 2014, a major chemical spill into West Virginia’s Elk Rivet cut off water to more than 300,000 people in the Kanawha Valley and surrounding nine counties. The chemical leak was from a facility owned by...more

Potential Recovery Opportunities Arising From Pollution Claims

Energy production in the United States is at an all-time high. In 2013, an average of 7.5 million barrels of oil were pumped every day, which bested the previous production record (2012) by one million barrels. Domestic oil...more

New ASTM Environmental Site Assessment Standard

Many are familiar with the “Phase I Environmental Site Assessment Standard” issued by ASTM, used for satisfying “All Appropriate Inquiry” for environmental contamination. Last week, ASTM issued a revised standard, Phase I...more

Digging in the Dirt? Allocating Environmental Liability in Real Estate Transactions

While adverse environmental conditions may be unavoidable, appropriate due diligence can help both real estate buyers and sellers avoid a liability mess. The conveyance of commercial or industrial real estate often...more

Cocamide-DEA Causing Prop. 65 Headaches for Personal Care Products Companies

When Proposition 65 (Prop. 65) warning requirements took effect for a common ingredient in shampoo and skincare products this past June, the plaintiffs’ bar took notice. To date, 29 notices of violation have issued to dozens...more

New Phase I ESA Standard To Be Issued In November

New Standard Will Help Clarify Environmental and Historical Site Conditions For South Florida Developers - A new standard for performing Phase I Environmental Site Assessments (ESA) is expected to be released in...more

Environmental Due Diligence Standards: Present and Future

The first half of 2013 has experienced greater economic activity than in recent years. The housing market appears to be recovering, albeit slowly. More lending and transactional activity is occurring at the commercial level....more

Illinois Follows Vapor Intrusion Regulation Trend

Most commercial or industrial buyers of contaminated property, and virtually all lenders at contaminated sites, require sellers to either obtain a no-further-remediation letter (NFR) themselves, place money in escrow in an...more

Clean Air Act Enforcement in the Pharmaceutical Industry - Major Pharmaceutical Company to Pay $2.2 Million to EPA to Resolve...

On June 28, 2013, King Pharmaceuticals LLC (“King”) agreed to pay a $2.2 million fine and take measures to comply with the Clean Air Act (CAA) to resolve alleged failures to comply with major source requirements at its...more

Eligibility for Reimbursement from the Underground Storage Tank Indemnification Fund Cannot Be Determined on a Per Tank Basis

On June 17, 2013, the Pennsylvania Supreme Court in Young’s Sales and Service v. Underground Storage Tank Indemnification Board, reversed a decision of the Commonwealth Court and held that eligibility for indemnification for...more

California’s Sweeping Green Chemistry Regulations One Step Closer to Reality

As we’ve previously reported here, California is close to finalizing regulations to implement the “Safer Consumer Products Regulations” enacted by the Legislature and signed by former Gov. Arnold Schwarzenegger in 2009. On...more

Oregon Enacts Significant Amendment to Environmental Clean-Up Insurance Statute

On June 10, 2013, Governor John Kitzhaber of Oregon signed into law a significant amendment to the Oregon Environmental Cleanup Assistance Act, ORS 465.475 et seq. (the “OECAA Amendment”)....more

EPA’s New "Institutional Controls" Guidance May Raise Issues in Cleanups and Transactions

The U.S. Environmental Protection Agency recently issued two guidelines with far-reaching implications for real estate transactions involving contaminated sites, including sites owned by the Department of Defense. The...more

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

Defense Cost Analysis in Complex Environmental Fee Claims

Introduction - Many of our litigation management audits involve complex environmental cleanup cases. In these cases, it is important to first evaluate the underlying matter, including the fact patterns of the various...more

Superfund Liability for the Repair of a Useful Product

A few months ago, I blogged on the decision in Duke Energy Progress Inc. v. Alcan Aluminum Corporation where a court held that a company would not be held liable for selling used transformers to a recycling facility for...more

Ashley II Holdings Require Caution

On April 4, 2013, the Fourth Circuit Court of Appeals issued a much anticipated decision in PCS Nitrogen, Inc. v. Ashley II of Charleston LLC, No. 11-1662 (4th Cir. April 4, 2013) (Ashley II). ...more

Mistakes Have Consequences – British Petroleum’s Settlement

Three years ago, Tilting told tales of oil spill legal problems suffered by Forrest Gump, Bubba Gump Shrimp Company, Wok Ann chu-gumm Seafood Restaurants, Chef Red Fishy and Bishop Carp. Tilting predicted class action...more

Fourth Circuit Restricts “Bona Fide Prospective Purchaser” Defense

On April 4, 2013, the Fourth Circuit issued a ruling in PCS Nitrogen Inc. v. Ashley II of Charleston that, among other things, may limit the availability of the “bona fide prospective purchaser” (“BFPP”) defense that Congress...more

PCS Nitrogen Inc. v. Ashley II of Charleston: Required Reading for Superfund Lawyers

The Fourth Circuit handed down a primer on CERCLA liability last week in PCS Nitrogen Inc. v. Ashley II of Charleston. It should be required reading for Superfund lawyers. The facts in the case are worthy of a law school law...more

EPA Clarifies "Innocent Tenant" Liability Under CERCLA

Recent EPA guidance imposes new environmental due diligence and compliance requirements on prospective commercial and industrial tenants. The guidance purports to clarify an exemption from liability, but actually confirms...more

EPA Lifts Threat of CERCLA Liability for Some Tenants of Brownfields

Tenants who lease currently or formerly contaminated property can now benefit from protections from cleanup liability that were once available only to purchasers of such property. EPA announced its new policy in a December...more

Should Tenants Worry About Environmental Liabilities For Their Leased Property?

By 2013, most property owners have heard of the advantages of performing environmental due diligence and conducting “All Appropriate Inquiry” by obtaining an Environmental Site Assessment before purchase. Doing so is key to...more

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