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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — August 1998


Responsible for Pollution? Even With the Armor of the Absolute Pollution Exclusion, Insurers May Not Be Bulletproof

by Amy R. Wolverton

Editors' Summary: In an attempt to reduce their liability for environmental claims, insurers regularly include absolute pollution exclusion clauses in their comprehensive general liability policies. Courts, however, have entertained a variety of challenges to absolute pollution exclusions. This Article discusses seven arguments that insureds have made to obtain coverage despite the existence of an absolute pollution exclusion in their policy. These arguments include: (1) the insured was not an active, industrial, or knowing polluter; (2) the substance at issue is not a pollutant; (3) no invasion of the environment has occurred; (4) no discharge or release has occurred; (5) the alleged contaminant is not waste; (6) the underlying claim is a product liability claim for which the policy provides coverage; and (7) the underlying claim is covered by the policy's personal injury provisions. The applicability and success of each of these arguments depends largely on the specific facts of each case. Although most courts find that the absolute pollution exclusion precludes coverage, this Article concludes that the absolute pollution exclusion is not always absolute.

New York State's Brownfields Programs: More, and Less, Than Meets the Eye

by Michael B. Gerrard

Editors' Summary: As the number of brownfields increase, state and federal governments have begun to encourage voluntary efforts to clean up those underused and contaminated properties. This Article examines the status of voluntary brownfields remediation in New York State. It begins by exploring three important New York programs that specifically address voluntary brownfields remediation. The structure, mechanics, and necessary qualifications for each program are described in detail. It then discusses several less prominent New York programs that address site cleanup in New York. The Article concludes with an assessment of New York's brownfields programs and their possibilities for success.

TMDLs III: A New Framework for the Clean Water Act's Ambient Standards Program

by Oliver A. Houck

Editors' Summary: For the past quarter century, the Clean Water Act has primarily relied on technological standards to abate point source pollution and achieve national clean water goals. Water quality standards lay largely dormant until the 1990s, when they were activated by citizen suits demanding implementation of §303(d) of the Act—the abatement of pollution discharges based on total maximum daily loads. The first Article in this series, published in the July 1997 issue of this Reporter, described the enactment of §303(d) and the active promotion of this approach to water pollution control by state governments and industry. A second Article, published in the August 1997 issue of ELR, described the subsequent neglect of §303(d) by the states and EPA, and the eventual litigation that brought this issue to center stage. This Article describes the new §303(d) program as it is emerging from the courts, EPA, a federal advisory committee, related federal programs, and the states.