Chances are that if you live in or have visited California, you have seen conspicuously placed “WARNING” signs notifying you that a product you are consuming or a location you are entering “contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.” Now, following a March 30, … Continue Reading
This post originally appeared on The Northwest Policyholder, Miller Nash Graham & Dunn’s insurance recovery blog. Many Northwest businesses are being impacted by the wildfires close to home, and also by the hurricanes that have or will hit Texas, Florida and other Gulf states. Can commercial insurance help to mitigate losses from these natural disasters? … Continue Reading
Environmental groups recently sued the Oregon Department of Environmental Quality (“DEQ”) over its alleged failure to renew permits in a timely manner. Most permits issued by DEQ under the Clean Water Act have an initial term of five years. According to the complaint, at least 75 percent of all such permits in Oregon have exceeded … Continue Reading
This article was originally posted on The Northwest Policyholder, Miller Nash Graham & Dunn’s insurance coverage blog. Contractors, builders, real estate managers, and others should be aware of a March 9, 2017, decision by an Oregon federal judge who found that carbon monoxide is included in the plain meaning of “pollutant” as defined in a … Continue Reading
In a blog post dated February 17, 2016, we wrote about a decision of the Washington Court of Appeals in Snohomish County v. Pollution Control Hearings Board favorable to developers. At issue in the case was the Washington State Department of Ecology’s rule that required application of new stormwater regulations to all development proposals submitted … Continue Reading
Today the Washington State Department of Ecology adopted a new rule to limit carbon dioxide emissions from major sources. Beginning in 2017, entities that emit more than 100,000 metric tons of carbon dioxide per year must reduce their emissions by 1.7 percent each year. Entities with lower emissions will be phased in over two decades. … Continue Reading
A Ninth Circuit panel reversed a district court’s denial of a smelter owner’s motion to dismiss, holding that the owner/operator of a facility that emits airborne hazardous substances cannot be held liable as an arranger for disposal under CERCLA. The case involves a smelter owned and operated by Teck Cominco Metals, Ltd., and located about ten … Continue Reading
There’s no doubt that some attention has been given to the water quality at Oregon schools in the past month. But the issue has been around for some time. Since the late 1980s, concerns have been raised about lead leaching from pipes and faucets into water in schools. Yet no state or federal law requires … Continue Reading
Access to courts to resolve disputes early on in a permitting process is critical for land use projects in terms of time- and cost-savings. In Army Corps of Engineers v. Hawkes, issued on May 31, 2016, the U.S. Supreme Court effectively agreed by ruling that a permit applicant need not await the completion of the … Continue Reading
If there was ever a case to be made for levee accreditation in Oregon, it would be the biological opinion (“BiOp”) that the National Marine Fisheries Services (“NMFS”) issued in April 2016. The BiOp seeks to protect and conserve certain salmon and steelhead species, and their critical habitats, listed under the federal Endangered Species Act and … Continue Reading
Water is a frequent topic of conversation these days, with valid concern over the growing scarcity of this resource. In the past few years, however, concerns about too much water have also arisen. From Hurricane Katrina to Superstorm Sandy to our own frightful storm during Halloween last year, unprecedented flooding is emerging as another water-related … Continue Reading
Recently the Supreme Court, for the first time, halted the implementation of an EPA rule before review by the Court of Appeals. As reported on this blog, in August the EPA adopted rules under the Clean Air Act to ensure that by 2030, carbon dioxide emissions from existing power plants would be 32 percent below … Continue Reading
August 28, 2015, was the effective date of a new regulation that many argue expands permitting requirements for project development and other activities near or in waterbodies. The U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“USACE”) rewrote the definition of “Waters of the United States” (“WOTUS”) under the federal Clean Water Act … Continue Reading
Earlier this week, the EPA adopted rules under the Clean Air Act intended to ensure that by 2030, carbon dioxide (CO2) emissions from existing power plants will be 32 percent below 2005 levels. The rule establishes emission performance rates for fossil-fuel-fired electric steam-generating units and natural-gas-fired combined-cycle generating units and sets state-specific CO2 goals based on the … Continue Reading
An insurance industry trade association just filed an amicus brief in Ash Grove Cement Co. v. Liberty Mutual Insurance Co., asking the Ninth Circuit either to reverse an Oregon district court’s decision that a CERCLA Section 104(e) information request is a “suit” triggering a duty to defend or to certify the question to the Oregon Supreme … Continue Reading
The Columbia Slough Watershed is a place in which environmental citizen groups continue to find violations of the Clean Water Act (the “CWA”). The filing of two recent cases in the federal district court for the District of Oregon by the Columbia Riverkeeper exemplifies these efforts. See Columbia Riverkeeper v. American Recyclers LLC, No. 3:14 cv … Continue Reading
Does Oregon’s public trust doctrine extend to the atmosphere? In Chernaik v. Kitzhaber, the Oregon Court of Appeals directed a Lane County circuit court to decide that question. The circuit court had concluded that it did not have subject-matter jurisdiction to make that determination or to direct the state to reduce atmospheric carbon dioxide levels as … Continue Reading
For 20 years now, Washington law has required an insurance company to indemnify an insured for historic environmental contamination under general liability policies, even in the absence of an overt, threatened action by a regulatory agency. Weyerhaeuser Co. v. Aetna Cas. & Sur. Co., 123 Wn.2d 891, 896-97, 874 P.2d 142 (1994). Earlier in June of … Continue Reading
Yesterday, in CTS Corp. v. Waldburger, the Supreme Court held that CERCLA does not preempt state statutes of repose, reversing a Fourth Circuit decision and Ninth Circuit precedent. A statute of limitations extinguishes the right of a claimant to pursue a cause of action after a set period has elapsed after a claim has accrued, while … Continue Reading
The long-awaited federal water resources authorization bill is likely on its way to becoming law. The bill authorizes work carried out by the U.S. Army Corps of Engineers (“USACE”), ranging from navigation to flood control. As of May 22, 2014, both the House and Senate have approved the Conference Report. See here for more information. This … Continue Reading
The U.S. Supreme Court scheduled oral argument for April 23, 2014, in CTS Corp. v. Waldburger. For some cases brought under state law and involving hazardous substances, CERCLA preempts state statutes of limitation under 42 U.S.C. 9658.… Continue Reading
This year has seen significant development in the area of environmental due diligence for those involved in real property transactions. And major development continues as we approach year-end. … Continue Reading
To avoid the potentially staggering environmental cleanup liabilities under the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and the Oregon cleanup statute, a prospective landowner or tenant must have conducted all appropriate inquiries (“AAI”) into the previous ownership and uses of the property consistent with good commercial or customary practice. Because the Oregon … Continue Reading
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 … Continue Reading
