We are pleased to present you with Tafts Environmental newsletter, a collection of insights from our team to yours. For more information on our environmental practice, please visit www.taftlaw.com.

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Dry Cleaning Machine Manufacturer Not Liable Under Indiana's ELA Statute
By: Jeffrey D. Stemerick

In Estate of Williams v. Borg Warner Morse TEC, Inc. ___ N.E.3d ___, NO. 49A02-1710-PL-2224, 2018 WL 4275368 (Aug. 28, 2018), the Indiana Court of Appeals held that the manufacturer of a dry cleaning machine could not be held liable under Indiana’s Environmental Legal Action statute, Ind. Code § 13-30-9-2. In doing so, it affirmed yet again, that ELA liability requires some actual, active involvement with the release of contaminants.

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Fourth Circuit Rules Passive Ash Surface Impoundments Are Not Point Sources
By: Taft's Environmental Group

In Sierra Club v. Virginia Electric & Power Company, ___ F.3d ___, No. 17-1562, No. 2018 WL 4343513 (4th Cir. Sep. 12, 2018), the Fourth Circuit held that coal ash settling ponds are not “point sources” under the Clean Water Act which prohibits discharging pollutants into regulated waters from a “point source” without a National Pollutant Discharge Elimination System permit. Id. at *2. The court held that the “point source” requirement was not satisfied by the “simple causal link” created when pollutants leach into groundwater from settling ponds and then flow into regulated navigable waters. Id. at *5.

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Non-Retailers Beware: New California Proposition 65 Regulations Are in Effect
By: Fernando Diaz

New amendments to California Proposition 65 regulations took effect on Aug. 30, 2018. With limited exceptions, the amendments place the responsibility of compliance exclusively on non-retail businesses in the product supply chain, including manufacturers, distributors, producers, packagers, importers and suppliers. The amendments significantly alter “safe harbor” warning requirements by, for example, requiring that the warning: (1) identify at least one chemical that prompted the warning, (2) provide a link to the California Prop 65 website and (3) include a triangular yellow and black warning symbol. The amendments also impose new, detailed warning requirements for product catalogs and websites engaged in internet sales.

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Caveat Emptor: Ninth Circuit Finds CERCLA Third-Party Defense Unavailable to Purchaser in Tax Sale
By: Taft's Environmental Group

The basic principle of caveat emptor permeates the law of property. When title passes to the buyer, ordinarily, so do many of that parcel’s problems—including environmental liabilities. Under the Comprehensive Environmental Response, Compensation, and Liability Act, current owners are typically strictly liable for contamination on their property even if they did not cause it. Certain buyers, however, are exempt under the third-party defense. 42 U.S.C. §§ 9601 (35)(A), 9607(b). While this third-party defense offers safe harbor from the often harsh provisions of CERCLA to those who qualify, the Ninth Circuit in California Department of Toxic Substances Control v. Westside Delivery, LLC held that a tax sale purchaser does not qualify for the defense. 888 F.3d 1085, 1088 (9th Cir. 2018).

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We encourage you to visit our Environmental Law LinkedIn Showcase page, where additional articles are published.
Tafts Environmental Law Newsletter is used to inform our clients and friends of significant new developments and current issues in environmental law. For more information about Taft Stettinius & Hollister LLP, please visit http://www.taftlaw.com.

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