Category: Legal

IDEM’s Changes to TPH Procedures for Ground Water

Posted on by Jeff Carnahan

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.

Posted on by Jeff Carnahan

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

Posted on by Jeff Carnahan

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”

It’s a Good Idea to be Proactive!

Posted on by shenshaw

Written by Steve Henshaw, President & CEO, EnviroForensics in collaboration with Justin Gifford, General Counsel, EnviroForensics
As seen in the January 2010 issue of Western Cleaner & Launderer

PDF Version

Opening up Google, a newspaper, turning on the radio or catching the evening news is sure to expose you to the national debate over health care and insurance. Through that exposure, most of us have gained at least a passing familiarity with the issue of “pre-existing conditions.” Insurers either refuse outright to cover a person with a pre-existing condition or exclude that condition from the coverage, leaving the insured to pay for it out of his pocket. Environmental liabilities and using historical insurance to offset those liabilities are not the focus of a lively national  debate, yet the costs incurred by drycleaners each year due to a similar problem are staggering.

We receive calls on a regular basis from drycleaners or property owners already engaged in defining the size of a spill or actively remediating it at the “request” of regulatory agencies asking for our help locating historical insurance to pay for the investigation and cleanup. Often times, we are able to locate that insurance to fund the clean up…but just as often, the twenty, thirty or   hundred and fifty thousand dollars already spent by our client cannot be recovered from the insurer even though the spending was necessary to comply with the regulator’s orders.

Continue reading “It’s a Good Idea to be Proactive!”

Good Housekeeping Includes Good Record Keeping

Posted on by shenshaw

Written by Steve Henshaw, President and CEO of EnviroForensics and PolicyFind
As seen in the December 2009 issue of Western Cleaner & Launderer

PDF Version

You can tell a lot about a drycleaner’s operation by the way that he conducts housekeeping. That is to say that if a drycleaner keeps a clean store, he probably handles chemicals in a manner that minimizes environmental releases. However, good housekeeping alone may not keep you out of hot water with the regulatory agencies.

There are some simple, effective and inexpensive ways to protect your business and your assets from liability by keeping good records. If you’ve ever watched one of the procedural crime dramas, the plot usually turns around “the evidence.” Creating, organizing and maintaining records can be the evidence that keeps you out of trouble. Hazardous waste manifests, perc purchase/disposal records, transporter license numbers and treatment facility identification numbers are all examples of things you should (or, in some cases, must) keep records of. However, those records aren’t just in case of a major problem. They can help you identify a minor problem before it gets serious. Continue reading “Good Housekeeping Includes Good Record Keeping”