Environmental Law Portal

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Beveridge & Diamond’s 100 lawyers in seven U.S. offices focus on environmental and natural resource law, litigation and dispute resolution. We help clients around the world resolve critical environmental and sustainability issues relating to their products, facilities, and operations. 

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Showing 17 posts by Nicole B. Weinstein.

NJDEP to Allow Capping as Remedial Option for VOCs with Groundwater Pathways

At the end of August, the New Jersey Department of Environmental Protection (“NJDEP”) issued guidance that allows volatile organic compounds (“VOCs”) released to groundwater to be left in place under certain circumstances; the change could provide considerable cost savings for parties responsible for such releases.  NJDEP’s new guidance will permit capping to be considered as a remedial option for sites with VOC risks or impacts to groundwater.  See Capping of Volatile Contaminants for the Impact to Ground Water Pathway.  The new policy supplements guidance issued in 2014, which allowed for capping of inorganic and semi-volatile organic contaminants under certain circumstances, but had not included VOCs, such as certain gasoline constituents, acetone, benzene, toluene, TCE, PCE, xylenes, and others.  See Capping of Inorganic and Semi-Volatile Contaminants for the Impact to Ground Water Pathway.  VOCs are often found in subsurface contamination at gasoline service stations, dry cleaners, and manufacturing facilities.  Read More ›

New York High Court Rules on “Unavailability Exception” to Pro Rata Allocation in Long-Tail Environmental Coverage Case

The New York Court of Appeals ruled last week that if an insurance policy provides for pro rata allocation to determine the insurance coverage responsibility for environmental contamination spanning multiple policy periods, the policyholder bears the risk of loss for periods where pollution coverage was unavailable for purchase. Keyspan Gas East Corp. v. Munich Reinsurance America, Inc., No. 20 (Slip Op. Mar. 27, 2018). Read More ›

Insurance Policyholders Score Victory on Critical Allocation Issue in Second Circuit Olin Decision

In an action seeking insurance coverage for environmental contamination, the United States Court of Appeals for the Second Circuit held that “all sums” allocation would apply to the policies at issue, and therefore the policyholder could choose which of the multiple triggered policy periods it preferred to cover the entire loss, up to the limits of the policies in that year.  Olin Corp. v. OneBeacon Am. Ins. Co., No. 15-2047(L) (2d Cir. July 18, 2017). Read More ›

Lost Insurance Policy? Pursuing Coverage for Long-Tail Environmental Liability Still Feasible

Companies facing environmental cleanup liability typically confront claims that are brought multiple decades after the alleged polluting activity took place. This passage of time often results in the loss or disappearance of crucial historic documents, including insurance policies, necessary to respond to the claims.  Historic general liability insurance policies issued before pollution exclusions became commonplace in the 1970s are of particular value in protecting a company from exposure to “long-tail” environmental liability.  Finding these policies, or evidence of their existence, therefore is a must.  A recent New Jersey federal court decision serves as a helpful reminder that when the actual policies cannot be located, even limited documentary evidence of their existence, when buttressed by the expert testimony of a credentialed insurance archaeologist, may be sufficient to prove the coverage and facilitate recovery. Read More ›

Second Circuit Offers Policyholders Painful Reminder on Giving Notice of Claims: Don’t Wait, Use Correct Addresses, and Be Specific

In January 2017, the Second Circuit ruled that policyholders must actually or presumptively give their insurers notice of specific policies under which they seek coverage—mailing a notice of the claim may not be enough. Travelers Indemnity Co. v. Northrop Grumman Corp., No. 15-3117-CV, 2017 WL 391926 (2d Cir. Jan. 27, 2017). Read More ›

In Deepwater Horizon insurance coverage dispute, Fifth Circuit affirms favorable ruling for policyholders and certifies unfair insurance practices question to Texas high court

In the latest development in the insurance coverage litigation arising out of the Deepwater Horizon oil spill, the U.S. Court of Appeals for the Fifth Circuit affirmed a $50 million finding of coverage, holding that only the presence of other actual, available insurance coverage—rather than the mere potential for other insurance—can trigger an “other insurance” clause.  In re Deepwater Horizon, No. 14-31321, slip op. at 10 (5th Cir. Nov. 19, 2015).  Additionally, the court asked the Texas Supreme Court to weigh in on whether the insured must demonstrate damages beyond the denied policy benefits in order to sustain a claim for unfair insurance practices under the Texas Insurance Code. Read More ›

Texas Supreme Court Rules that CERCLA PRP Letters and Enforcement Proceedings Are “Suits” Subject to the Duty to Defend Under Standard CGL Insurance Policies

On June 26, 2015, the Texas Supreme Court held that enforcement proceedings under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”)—including the issuance of a “PRP letter” notifying the recipient that it is a potentially responsible party—constitute a “suit” subject to the duty to defend under standard commercial general liability insurance policies, joining the substantial majority of courts that have considered the issue. McGinnes Indus. Maint. Corp. v. Phoenix Ins. Co., No. 14-0465 (Tex. June 26, 2015). Read More ›

Texas Supreme Court Rules Additional-Insured Coverage Is Limited by Underlying Indemnification Agreement in In re Deepwater Horizon

In a much anticipated 8-1 decision, the Texas Supreme Court ruled Friday that BP is not entitled to additional-insured coverage in In re Deepwater Horizon, No. 13-0670 (Feb. 13, 2015). Read More ›

Wisconsin Supreme Court Applies Pollution Exclusion to Well Contaminated with Manure

Recently, the Wisconsin Supreme Court held that the pollution exclusion applies to well water contamination arising from the application of manure to nearby farmland, relieving a general liability insurer of its duty to defend or indemnify an insured absent other policy provisions. Read More ›

Infrastructure, Insurance, and Climate Change – Oh My!

When it comes to insurance coverage for key infrastructure assets, several fundamental questions emerge:

  • Can our current infrastructure withstand sea level rise and other severe weather consequences?
  • If the answer to that question is “no,” (which depends on the asset at issue and geography), does awareness of climate change impacts impose a duty on anyone to protect infrastructure from potential damage?
  • If a duty exists to anticipate severe weather impacts, should insurance companies ultimately be on the hook if asset owners fail to take steps to make infrastructure more resilient?

As with most legal questions, where you stand depends on where you sit. Read More ›