You Sold Your Business and You’re in the Clear…..Not So Fast

Written by Steve Henshaw, P.G., President & CEO, EnviroForensics.
As seen in the September 2011 issue of Cleaner & Launderer.

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You worked hard to grow your business and you had the good fortune to sell it for a profit.  You had your lawyer look over the sale contract and you even had the buyer indemnify you for future environmental claims, should they ever arise.  You did everything right and now it’s time to relax and enjoy the fruits of your labor.

Several years pass and one day you get a letter in the mail.  The letter is sent “certified” and you have to sign for it.  You open the letter, it’s from the state environmental regulatory department informing you that as a past owner and/or operator of the sold business, you are responsible for groundwater contamination. Continue reading “You Sold Your Business and You’re in the Clear…..Not So Fast”

Flexdar Court Sides With Insureds: Reinforces Kiger; Broadens “Ambiguous” Interpretation of Absolute Pollution Exclusion Language

Written by Justin Gifford, J.D., General Counsel, EnviroForensics and PolicyFind

The Indiana Court of Appeals’ November opinion in the recent State Automobile Mutual Insurance Co. v Flexdar, Inc. (Ind. App. 2010) comes as good news to business owners like drycleaners who currently or have historically used tetrachlorethene (perc) or petroleum solvents that may have been released into the environment.  The Appellate Court’s decision re-examined the landmark American States Insurance Co. v. Kiger (662 N.E.2d 945, Ind. 1996) as well as its progeny and found for Flexdar, Inc., the insured.  (Kiger established that the absolute pollution exclusion found in many general commercial liability (GCL) policies is ambiguous and, as a result, ineffective in insulating insurers from their duties to defend and/or indemnify their insureds for claims made by the Indiana Department of Environmental Management that the insureds investigate and clean up releases of perc or other substances into soil and groundwater.)  Continue reading “Flexdar Court Sides With Insureds: Reinforces Kiger; Broadens “Ambiguous” Interpretation of Absolute Pollution Exclusion Language”

IDEM’s Changes to TPH Procedures for Ground Water

Written by Steve Henshaw, P.G., President & CEO, EnviroForensics

On June 17, 2010 the Indiana Department of Environmental Management (IDEM) once again adjusted their guidance regarding the regulation of Total Petroleum Hydrocarbons (TPH) and revised pertinent sections of their Risk Integrated System of Closure (RISC) Technical Guidance Document.  A special RISC TPH Work Group has determined that the investigation, delineation and/or remediation of TPH in ground water are no longer warranted, unless protection of drinking water wells is necessary.  This development could significantly impact environmental cleanup projects where releases of petroleum products have occurred. 

The term TPH refers to an accumulation of hydrocarbon compounds that make up a variety of petroleum products.  Not all of the compounds that fall in this category have been researched individually by toxicologists, such that closure levels could be established.  Those that do have closure levels are considered Contaminants of Concern (COCs) at cleanup sites, which are commonly the more toxic compounds and are regulated individually.  The non-specific TPH is also regulated as a COC based on surrogate toxicological data.  Continue reading “IDEM’s Changes to TPH Procedures for Ground Water”

Eastern District’s Application of BNSF in Hinds Doesn’t Eliminate Manufacturer-Arranger Liability.

Written by Justin Gifford, J.D., Environmental Compliance Manager

Applying the Supreme Court’s ruling in Burlington Northern & Sante Fe v. U.S.[1], the Eastern District of California dismissed a CERCLA claim against a dry-cleaning machine manufacturer in Hinds Investments, L.P. v. Team Enterprises, Inc.[2] as a matter of law rather than a fact-intensive review of intent.

BNSF in the Ninth Circuit and the Supreme Court

The Ninth Circuit’s decision imposed CERCLA liability on Shell Oil, the manufacturer of agricultural chemicals contaminating the site, based on CERCLA’s definition of arrangers as “any person who by contract, agreement or otherwise, arranged for disposal or treatment…of hazardous substances. [3]”  The Ninth Circuit held that although Shell’s intent was to sell the product rather than to dispose of it, it was often spilled with Shell’s knowledge.  As contamination was the foreseeable result, Shell’s knowledge alone was sufficient to apply arranger liability.  Continue reading “Eastern District’s Application of BNSF in Hinds Doesn’t Eliminate Manufacturer-Arranger Liability.”

U.S. Circuit Court Finds Limits to Indiana’s Kiger Decision in Federated’s Unambiguous Policy Language

By David A. O’Neill, J.D., Director of Investigations, Policy Find

The question of how broadly the Indiana Supreme Court’s ruling in American States Insurance Company v. Kiger, 662 N.E. 2d 945 (Ind. 1996) can be interpreted was further decided on March 25, 2010 when the United States Court of Appeals, Seventh Circuit reached a decision in the West Bend Mutual Insurance Company v. U.S. Fidelity and Guaranty Company case.  This appellate decision is a caution to those owners and operators of retail gasoline service stations, who have been waiting to have their properties tested for pollutants in reliance on the effect of the Kiger ruling.  They will now be carefully reviewing the pollution exclusionary and definitions clauses in their policies to determine whether the Kiger or West Bend rules apply to their situations.

 In its published opinion, the Seventh Circuit explained its decision to affirm the U.S. District Court’s interpretation of a Federated Mutual Insurance Company umbrella liability policy which had been found to exclude coverage for pollution of neighboring property occasioned by leaking underground gasoline storage tanks. Continue reading “U.S. Circuit Court Finds Limits to Indiana’s Kiger Decision in Federated’s Unambiguous Policy Language”