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(1) Insurance Benefits
- Indiana currently has a very favorable insurance climate for insureds, even regarding decades-old policies.
- Waiting to report or investigate claims/issues may result in losing coverage that now exists.
- Insurance companies are currently receptive to voluntary cleanups as well as IDEM-mandated actions.
(e.g., Bose McKinney & Evans' Environmental Law Group has been hired by more than a dozen insurance companies who are willing to pursue voluntary cleanups.)
(2) SEC Filings/Sarbanes-Oxley
- Items 101, 103, and 303 of Regulations S-K (17 C.F.R. Parts 229.101, 229.103, 229.303) require disclosure of various environmental concerns such as:
- Disclosure of the "material effects" of complying with any
federal, state, or local provisions pertaining to environmental protection (See Item 101(c)(1)(xii)).
- Identifying any known trends, demands, commitments, events or uncertainties that are reasonably likely to materially affect a company's financial situation (See Item 303(a)(1)). These findings must be certified by the executives in the company and arguably place responsibility on them to determine whether the situations described in the regulations exist or not. Civil and criminal penalties can be levied against Responsible Corporate Officers at the highest levels of the corporation who fail to carry out their responsibilities for accurate reporting.
(3) IDEM Flexibility
- New IDEM Commissioner, Tom Easterly, comes from the steel industry and later his own private consulting firm. In our meetings with Commissioner Easterly, he encourages companies to proactively address environmental concerns, just as he says he did when he worked for Bethlehem Steel in Northern Indiana. By helping companies address environmental concerns, IDEM has stated that it will facilitate commercial and industrial growth in the state and further IDEM's stated goal of helping Hoosiers increase their incomes. Commissioner Easterly
has stated that he intends his administration to be more compliance-oriented, rather than enforcement-oriented, and will try to help the company that comes in voluntarily to work through problems. Thus, the current
administration favors Indiana businesses with environmental
problems that are seeking flexible compliance solutions.
(4) Determining Responsible Party
- If the client did not cause or contribute to the environmental contamination, the client must act in order to take advantage of state and federal protections against liability. Clients should NOT enter into purchase agreements or contracts that could be interpreted as accepting liability for environmental problems they did not create.
(5) Mitigating Potential Penalties
- If a client discovers a potential violation, such as improper reporting, the client can reduce potential enforcement penalties by discreetly correcting the error, rather than having the agency discover the problem first. There are both federal and
state provisions rewarding voluntary disclosure and compliance efforts.
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