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Taft's environmental attorneys practice in all facets of environmental law, including Superfund defense and negotiation, enforcement defense, cost-recovery for plaintiffs and defendants, criminal environmental defense, environmental insurance and toxic tort litigation, mold and sick building litigation, lawsuits involving environmental problems discovered as a result of real property transfers or mergers and acquisitions, Brownfields redevelopment, defense of claims of occupational exposures, and administrative proceedings before state and federal agencies. Taft's environmental lawyers also are regularly engaged in insurance disputes concerning environmental issues and agricultural issues involving CAFOs and CFOs. The purpose of this newsletter is to provide you with insights from our team that may be of interest to yours.

(513) 357-9406

On May 18, the EPA published a wide-ranging series of proposed changes to the National Pollutant Discharge Elimination System ("NPDES") regulations. The proposed changes cover 15 topics in the following major categories: NPDES permit applications; the water quality-based permitting process; NPDES permit objection, documentation and process efficiencies; the vessels exclusion; and the Clean Water Act Section 401 certification process. Some of the more significant changes proposed by the EPA are discussed further below. The EPA is currently accepting comments from the regulated community on its proposed changes - all comments must be received by July 18, 2016.

(317) 713-3562

With Congress in gridlock and partisanship reaching new heights, it was encouraging to see the U.S. Supreme Court's recent unanimous decision inU.S. Army Corps of Engineers v. Hawkes Co. Inc., where the court held that an approved jurisdictional determination by the U.S. Army Corps under the Clean Water Act was a final agency action subject to judicial review. Although the scope of the court's decision will likely be litigated in the future, it appears to provide for the first time an avenue for real estate developers, farmers and other property owners to determine with certainty if they must obtain a permit under the Clean Water Act when working in wetlands and other waters.

(317) 713-3610

On June 3, a federal court in California entered a summary judgment ruling finding that two insurers had a duty to defend their insured against claims arising out of alleged releases of perchloroethylene (PCE) under their business auto policies because it was possible the releases resulted from the use of an automobile. Am. Guarantee & Liab. Ins. Co. v. Technichem, Inc., et al., Case No. 15-cv-03611-VC, 2016 U.S. Dist. LEXIS 72793, *7-10 (N.D. Cal. June 3, 2016). This ruling is important because it reminds policyholders to consider whether any environmental contamination claims they might be addressing were potentially attributable to their use of covered autos.

EPA Proposes to Remove the CERCLA and RCRA Exemptions from Site Remediation NESHAP
(614) 334-6117

On May 13, the EPA published proposed rule amendments that would subject site remediation activities performed under the Comprehensive Response and Compensation Liability Act ("CERCLA") and Resource Conservation and Recovery Act ("RCRA") to National Emission Standards for Hazardous Air Pollutants ("NESHAP"). National Emission Standards for Hazardous Air Pollutants: Site Remediation, 81 Fed. Reg. 29821 (proposed May 13, 2016)(to be codified at 40 C.F.R. 60)("Proposed Rule"). The EPA is also proposing to remove the applicability requirement that a remediation site must be co-located with a facility that is regulated by other NESHAPs in order to be subject to the site remediation rule. These potential rule changes will subject a number of existing facilities to NESHAP rules although these facilities are currently exempt from NESHAP. The EPA is seeking comments on these potential changes by June 27, 2016.

(513) 357-9406

On May 18, the 6th Circuit Court of Appeals resolved a Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA") dispute between two agricultural-chemical distributors, Drexel Chemical Company ("Drexel") and Albaugh, Inc. ("Albaugh"). Drexel Chem. Co. v. Albaugh, Inc., Case Nos. 14-6340/6363 (Sixth Circuit, May 18, 2016). The dispute centered on Drexel's ability to recover certain "data compensation" costs from Albaugh pursuant to a contract between the two. The court ruled that according to the parties' contract only "data compensation" costs that were actually paid during the contract were recoverable. In contrast, costs incurred during the contract but not paid until after the contract's termination were not recoverable. Additionally, the court ruled that the contract's generic description of recoverable "costs" was not specific enough under Tennessee law to include attorney's fees and arbitration costs. The court's ruling demonstrates the importance of carefully describing the scope of "data compensation" costs in any FIFRA data cost-sharing contract.

Taft's 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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June 2016 Issue
EPA Issues New Proposed Changes to NPDES Regulations
Landowners Win Big in the U.S. Supreme Court
Federal Court Rules Insurers Have Duty to Defend Lawsuit
EPA Proposes to Remove the CERCLA and RCRA Exemptions from Site Remediation NESHAP
Sixth Circuit Limits Contractual Recovery of FIFRA "Data Compensation" Costs

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