How important is it that timely notice of an environmental claim be given to your insurance carrier? And just what is "timely"?A federal appeals court in New York recently answered, "it's very important," and "timely" means as soon as practicable (but more than...
Environmental Risk & Insurance
In Oil Spill Case, Common Law Negligence Claim Against Insurer Not Time-Barred Despite Policy
Sometimes simple common law principles are the best way to litigate against insurance companies. Specifically, if the insurance policy calls for a two-year limitations period to sue, make sure your attorney alleges common law negligence against the insurance carrier...
Supreme Court Declines to Weigh in on CERCLA Subrogation Case
Sometimes the Supreme Court's silence can be just as powerful as a decision. Or as James Joyce said about "absence" - it's the "highest form of presence."The effect of the Court's declining to grant certiorari in the case of Chubb Custom Insurance Company v. Space...
Soil Vapor Intrusion Concern Prompts EPA to Support Revision to Phase I Environmental Site Assessment Protocol
The health threats posed by physical contact with contaminated soil or groundwater are well known. But increasingly, state and federal regulators are recognizing that harmful vapors from such contamination can be drawn into nearby buildings and pose a threat to the...
When Does the Discovery of Historic Contamination Qualify as a “Sudden and Accidental” Release?
Many insurance policies contain a "pollution exclusion" which seeks to exclude coverage for losses arising from pollution, except in the case of a "sudden and accidental" release. "Sudden and accidental" may bring to mind a burst pipe or overturned tanker truck, but a...
EPA Announces New Tenant Protections Under Superfund
EPA has just extended to tenants the Bona Fide Prospective Purchaser ("BFPP") protection, by which Congress previously exempted certain prospective owners from harsh Superfund liability. Even where the landlord loses its BFPP protection, the new EPA enforcement...
Migration of Contamination Does Not Automatically Create a Single “Facility” Under CERCLA
A federal court in New York recently decided that the migration of subterranean contamination onto a neighboring property was not, by itself, a sufficient basis to hold a neighboring landowner jointly liable for remediation costs under the federal Comprehensive...
“Fracking NY” Blog Series: Update – Decisions Upholding Zoning Bans on Fracking in NY Appealed
Previously in our "Fracking NY" Blog Series, we summarized the two recent New York Supreme Court cases - Anschutz Exploration Corp. v. Town of Dryden, 940 N.Y.S.2d 458 (Sup. Ct. Tompkins Co. Feb. 21, 2012) and Cooperstown Holstein Corp. v. Town of Middlefield, 2012...
Environmental Due Diligence in Real Estate Transactions Blog Series: Part I – Introduction
This blog series is based on an article written by James J. Periconi and published in the Winter 2008 Bloomberg Corporate News Journal. Mr. Periconi also discusses the details and the nuances of environmental due diligence of commercial real estate transactions in his...
“Fracking NY” Blog Series: Part 6 – Courts Uphold Two Local Zoning Bans on Fracking in New York State – Town of Dryden (Part I)
So far in the "Fracking NY Blog Series," we've outlined state, interstate, and federal regulation of high volume horizontal hydraulic fracturing (or "fracking"). We now turn to yet another layer of potential regulation of fracking in New...