On August 30, 2013, the Ninth Circuit Court of Appeals issued a groundbreaking decision, requiring an insurance company that has issued comprehensive general liability policies to defend a policyholder that has received an information request from the U.S. Environmental Protection Agency (“EPA”) under Section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). See Anderson Bros. v. St. Paul Fire & Marine Ins. Co., No. 3:11-cv-00137-MO (9th Cir Aug. 30, 2013).
The Ninth Circuit affirmed the lower court’s finding that such an information request is a “suit” as defined by the Oregon Cleanup Assistance Act. This decision expands beyond existing legal precedents that limit suits to formal general notice letters from EPA. Among other discussions, the court recognizes the unique coercive nature of EPA’s enforcement authority under CERCLA and views the information request to be an “intrusive questionnaire the answers to which exposed [the policyholder] to extensive liability—plainly an end obtained through legal process.”
This is a significant victory for similar policyholders involved at the Portland Harbor Superfund Site. They now have a stronger argument to pressure their recalcitrant insurers into paying the costs that have been incurred in responding to EPA Region 10 information requests.
A copy of the decision can be found athttp://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/30/12-35346.pdf.