Environmental Enforcement Actions – Don’t Forget About Insurance
Most everyone (property owners, business owners, municipal government, financial institutions, etc.) cringe when they hear they have an environmental problem and they need to comply with the regulations imposed by a state agency and/or the Environmental Protection Agency (EPA). Often times, despite good advice, the prevailing wisdom may be to ignore the problem and hope it will go away. One reason for this is the recognition to comply with the regulations will cost a significant amount of money. To many, this unscheduled expense is not affordable. To others, the expense could result in a failed business.
State agencies and the EPA were created to protect human health and the environment. These are good and dedicated people who look for reasonable solutions to problems that exist based on historically inappropriate business practices, or in more recent times, simply not following the rules. The Enforcement Division of an agency is responsible for working with the business or individual who will not do what is needed to solve an environmental issue they are responsible for.
At Restorical Research, we have found the main reason for avoiding any action is there is no money available, either from the responsible party or the government. What these same people don’t realize is their historical Commercial General Liability (CGL) insurance policies they have purchased 30+ years ago may be the funding source needed to achieve compliance and by doing so, avoid civil penalties, settlement discussions and hearings with the state agencies and EPA.
Restorical Research looks to reconstruct our clients historic CGL as these policies often contain provisions which provide coverage for property damage resulting from environmental damage and subject to a state agency or EPA enforcement action. Restorical Research has a comprehensive screening process to determine whether a particular situation has the right characteristics and circumstances that will lead to success.
If you have a client who is faced with the possibility of an enforcement action, our insurance archaeologists can help locate old CGL policies or evidence that these policies existed. The state agencies and EPA both recognize these old CGL policies as assets that can become a funding tool to provide a resolution to their enforcement actions.
The alternative is often the “inability to pay”, which is a defense that leaves the state agencies and EPA in a bad position, as the site remains in limbo forever, contaminated and unproductive.
This blog is not meant to represent a legal opinion. Restorical Research is not a law firm and is unable to provide legal advice.
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