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Posts published in “Day: July 24, 2014

Supreme Court to define EPA suit for Waste Pits

AUSTIN – Texas Supreme Court accepted certification from the Fifth Circuit Court to decide if the Environmental Protection Agency (EPA) orders a company to clean up something is that a “suit.”

The high court will hear this case of if an insurer has to pay for law suits that are in fact administrative actions of government agencies in Texas law. At present, a number of such decisions have been made in Texas and throughout the nation. The decisions reached before have fallen into three categories: those that require a formal complaint by the government agency, others saying if a letter has been issued by the agency that is like a suit, while others have determined that it may depend on how coercive the action is to the company before it is considered a suit.

Presented to the courts are documents that will allege that McGinnes Industrial Maintenance Corporation, a waste disposal company, removed waste from a paper mill and released it in three ponds adjacent to the San Jacinto River during the 1960s and early 1970s.

About then McGinnes purchased commercial general liability policies from Phoenix Insurance Company and the Travelers Indemnity Company. The policies provided that the insurer “shall have the right and duty to defend any suit against [McGinnes] seeking damages on account of . . . property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient.”

The policies in no way defined the term “suit.”

So, the EPA began looking into alleged pollution of the San Jacinto in 2005. By 2007 the EPA issued a Potentially Responsible Party letter contending that it had contributed to the hazardous waste contamination at the site.

The EPA demanded that McGinnes make reimbursement, prevent further contamination, and that the company fund a Remediation/Investigation/Feasibility Study.

When the company presented this to their insurance companies, insurers indicated these were not lawsuits but government suits. McGinnes then filed a declaratory judgment action seeking a ruling. They contended that a defense was owed to them based on the policy as well as payment for more than $2 million in attorneys’ fees from the start of the action.

A federal district court judge granted summary judgment for the insurers, determining that the EPA CERCLA Action was not a suit triggering the duty to defend. So the company appealed to the Fifth Circuit Court with the argument that “suit” was ambiguous in this contest but insurers argued a “suit” was a court proceeding.

French Limited Site under review

CROSBY– The U.S. Environmental Protection Agency (EPA) and the Texas Commission on Environmental Quality (TCEQ) are in the process of reevaluating the ground water remedy chosen in the 1988 Record of Decision for the French Limited Site based on investigation and performance of the former selected remedy.

A Public Meeting is to be held August 4 from 6:30 p.m. until 8:00 p.m. at the Harris County Public Library, Crosby Branch at 135 Hare Road. EPA and TCEQ representatives will participate and the meeting will be followed by a question and answer session.

This re-evaluation is only about changes to the ground water remedy and not about changes to lagoon sludges and soil remedy selected in the 1988 Record of Decision.

A Proposed Plan recommends preferred remedial alternatives for the Site ground water and identifies steps to be taken for continual protection of health and the environment. The idea is to contain ground water contaminant plumes into two ground water zones, and prevent exposure to contaminated ground water by implementing restrictions on access or use of contaminated water within the defined boundary. Finally, more monitoring wells and short-term monitoring to verify the proposed Defined Boundary; conduct long-term monitoring to ensure that the contaminant plumes are not expanding. Along with those two steps comes the promise of an extensive evaluation of data periodically and then take appropriate contingency measures as needed.

Located near the San Jacinto River at Old Beaumont Highway and Gulf Pump Road, the French Limited Site was a sand quarry in the 1950s and 1960s that left a 6-acre sand pit. The location then accepted industrial waste material from 1966 until 1971 taking in an estimated 90 million gallons of chemical waste, transforming it into a lagoon. This site is within the San Jacinto River flood plain in a floodway subject to potential flooding. PCBs, arsenic, volatile organic compounds, benzene and DNAPLs have been found in the soil.

So, after taking out contaminated ground water, remaining contamination was to weaken to levels below the federal and state drinking water levels. From 1992 until 1996, a ground water pump and treat system was in place working on affected water bearing zones. Since 1996 ground water monitoring has been performed to document if residual ground water contaminants can meet drinking water levels. No, it is not as safe as drinking water.

Those parties named as potentially responsible for the pollution formed the French Limited Task Group in 1988. The French Limited Task Group has investigated and implemented remedies at the Site but hazardous substances remain in the ground water at the Site are addressed in the new plan.

The plan is waive drinking water levels in the two zones. Prevent installing wells nearby and do statutory reviews every five years. The pump and treat remedy previously used are not capable of achieving results safe for drinking water.