Last year, after a 20+ year delay, it appeared that EPA was about to issue new regulations for the handling and disposal of coal ash. However, the coal ash regulations were shelved, and now lawsuits are starting to fill the void – including multi-million dollar claims for personal injury. The vast majority of coal ash is generated by coal-fired electric power plants, and the vast majority of those are in the southeast. Environmental groups have filed notices of intent to sue in South Carolina (1) and in North Carolina (2).
Suits alleging personal injury from coal ash have been fairly limited, but the wave is apparently building. Suits pending in Virginia allege that heavy metals leaching from coal ash have caused personal injury in addition to property damage, and recent lawsuits against Georgia Power and others allege similar damage and injury related to the Scherer Plant in Monroe County. (3, 4)
The suits involve (or will involve) extremely complicated legal issues related to the interplay of environmental regulation, tort law, and contract law, but their resolution could potentially impact every coal-fired power plant and, eventually, its customers – which are the majority of the residents of the Southeast.
(Note: Rogers Townsend is defending some of these coal ash lawsuits.)
The District Court opinion below had received national attention for denying BFPP (essentially “innocent purchaser”) status to Ashley based on a series of factual findings which included a finding that Ashley violating the “no affiliation” requirement by providing indemnity to the prior owner (which are common provisions in the purchase of contaminated properties). The Fourth Circuit sidestepped that issue, however, by finding that the initial reason – failing to remove certain structures from the property as Ashley’s environmental consultants had advised – was sufficient to deny BFPP status. (An EPA guidance memo, which was issued after the District Court opinion, does not negate BFPP status for providing such indemnities. While this does not have the force of law, it should provide some measure of comfort for those involved in such environmental transactions.)
The rest of the opinion, however, serves as a useful primer on a number of CERCLA issues and provides one of the clearest 4th Circuit opinions on these issues, particularly apportionment after Burlington Northern, the impact of “secondary disposal” (movement and spreading of contamination), the distinction between apportionment of fault and allocation of liability, and successor liability issues under CERCLA.
(Full disclosure: I represented Ross Development in the litigation. PCS asserted that Ross was responsible for 98-99% of the contamination, but the Court apportioned only 45% of the liability to Ross. Ross was not directly involved in the BFPP issues.)
PCS Nitrogen Inc. v. Ashley II of
Charleston (Click case name for pdf of the opinion)
The Colorado Supreme Court recently issued an opinion finding that a CGL policy’s “absolute pollution exclusion” provision barred coverage for injuries caused by the discharge of cooking grease. In Mountain States Mutual Casualty Company v. Christopher Roinestad, et al., 2013 CO 14; 2013 Colo. LEXIS 166 (Colo. Feb. 25, 2013), the Colorado Supreme Court overturned an opinion from the Court of Appeals which had found the terms of the pollution exclusion clause “were ambiguous and that its application to cooking grease — a common everyday waste product—could lead to absurd results and negate essential coverage.”
Those who attended the Carolinas Construction & Environmental Claims Seminar on March 1st in Charlotte may recall that the state supreme courts who have considered the “absolute pollution exclusion” provision (about 26 at this point) fall into 3 basic camps: 1) All: Anything reasonably within the definition of “pollutants” is excluded from coverage (e.g., Florida); 2) Nothing: Nothing is excluded from coverage because the provision is too broad (e.g., Indiana); or 3) Middle: traditional “environmental pollution” is excluded, but discharges which are normal to routine business operations are not excluded (e.g., Massachusetts).
In Mountain States, two men had been injured by hydrogen sulfide gas caused by the discharge of huge amounts of waste grease into a sewer by the aptly-named Hogs Breath Saloon. In overturning the lower court opinion, the Supreme Court rejected the argument that the “absolute pollution exclusion” clause applies only to “traditional” pollution; however, the Court did not go so far as to say that the exclusion would apply to any discharge regardless of whether it was merely an incidental release associated with normal business practices. The Court pointed out that the large discharge of cooking grease into the sewer here both violated city ordinances and would also be considered a “discharge of pollution” under any reasonable definition of the phrase.The argument that the “absolute pollution exclusion” should not bar discharges which are normal to routine business is part of the “reasonable expectations” theory – that is, that companies buy CGL policies expecting that there is coverage for injuries caused by their routine, normal business operations; however, such expectations are arguably lessened by opinions such as Mountain States, which will make it harder for policyholders to prevail on this theory in the future.
Applications Open for 2013 Cohort of Kinship Conservation Fellows
Program to run June 29 – July 26; applications close January 26, 2013.
Chicago, Illinois, November 1, 2012: Kinship Foundation has opened applications for its 2013 cohort of Kinship Conservation Fellows. Eighteen applicants will be selected as Fellows, awarded a $6,000 stipend and lodging for the month-long program, and gain membership into a global community of inspired leaders.
Kinship Conservation Fellows is an innovative environmental leadership program that offers intensive, in-residence instruction in the best practices for implementing conservation projects using market-based mechanisms. During their month at Kinship, Fellows look beyond their technical and scientific capacities to understand the economic and business contexts influencing conservation worldwide.
“Kinship Conservation Fellows supports mid-career practitioners seeking to effectively implement market-based mechanisms for conservation by honing their skills in leadership, communication, economics, and business and finance,” says Kinship Foundation Vice President, Renee Michaels. To date, 174 Fellows in 46 countries and six continents have been selected as Kinship Fellows.
Grounding theoretical economic, finance, and business concepts in practical and applied examples, Kinship's curriculum features a case study approach to using market-based tools to achieve positive impact. Combined with its customized leadership component, Kinship prepares Fellows to successfully implement innovative strategies in the field.
Once home, Kinship's active learning community continues to support Fellows through a growing network of regional chapters and affinity groups and provides access to new opportunities for engaging in collaboration and sharing thought leadership.
The 2013 Kinship Conservation Fellows program will take place on the campus of Western Washington University in Bellingham, Washington from June 29 through July 26, 2013. Mid-career conservation practitioners with at least five years of field experience, a bachelor’s degree, and a demonstrated desire to innovate are encouraged to apply for consideration as a Kinship Fellow. To learn more and access the online application form, please visit www.KinshipFellows.org. The application deadline is January 26, 2013.
Established in 2001, Kinship’s mission is to develop a community of leaders dedicated to collaborative approaches to environmental issues with an emphasis on market-based principles. For more information about Kinship Conservation Fellows, please contact Catherine Rabenstine at (312) 803-6200, firstname.lastname@example.org, or visit www.KinshipFellows.org.
303 W. Madison, Suite 1800 | Chicago, IL 60606
PH: 312.803.6200 | F: 312.803.6201
In no particular order, and with no apparent guidelines for selection (other than, "hey - I'm the one writing this"):
1) Fracking debate – Tensions continue to run high as a North Carolina DENR panel continues to review possible regulations that would open the door to “fracking.”
2) Groundwater contaminated with carcinogens in Wake Forest area -
3) The State tries to outlaw climate change – new law bans the use of sea rise predictions in state coastal policy decisions
c. What about the value of pi? http://www.straightdope.com/columns/read/805/did-a-state-legislature-once-pass-a-law-saying-pi-equals-3
4) Deadly E. coli outbreak kills toddler and sickens over 100 others - allegedly linked to the Cleveland Co. Fair
5) CTS Superfund Site in Asheville – a bitter, long-running fight over contamination that has allegedly caused dozens of area residents to develop life-threatening diseases
We bring you the Top 5 Environmental/Toxic Tort Litigation Stories of 2012 in South Carolina. (As selected by a fashionably-dressed monkey at an IKEA store in Toronto.)
1) Savannah River Dredging – In a
tangled tale of political maneuvering which saw state agencies squaring off
against each other, the SC Supreme Court overturned an apparent deal with
Georgia for a $650M dredging project to develop the Savannah River Port. The issue is now in the hands of Congress. (What could go wrong?)
2) Statutory changes re: citizen suits – The Legislature moved quickly to squash the ramifications of a S.C. Supreme Court decision which had approved the use of “citizen suits” to enforce violations of the State’s Pollution Control Act when DHEC failed to act.
a. See 2012 S.C. Acts 198, which changed 48-1-250 - effective June 6, 2012: http://www.scstatehouse.gov/sess119_2011-2012/bills/4654.htm
3) $2.3M verdict against the Lee County Landfill company – one of the largest verdicts ever in a nuisance suit basely solely on odor
4) Chesterfield lawsuit claims chemicals used on peach orchards in the 1970s have contaminated the groundwater with carcinogens; seeks $450M in damages
5) Pelion Sewage Dump – a long-running battle between residents, DHEC, and the operator of a sewage dump with significant nitrate contamination has led to an agreement to stop operating and lawsuits by the residents
FOR IMMEDIATE RELEASE
November 29, 2012
Contact: Debbie Heishman, Writing Award Administrator
434-977-4090 / email@example.com
The Southern Environmental Law Center is now accepting submissions for its
annual Reed Environmental Writing Award. The award seeks to enhance public
awareness of the value and vulnerability of the region's natural heritage by
giving special recognition to writers who most effectively tell the stories
about the South's environment.
SELC's annual Reed Environmental Writing Award has two categories: Book, for non-fiction books (not self-published), and Journalism, for newspaper, magazine writing, and online writing that is published by a recognized institution (e.g., newspaper, university or non-profit organization) and is journalistic in nature. Prizes of $1,000 are awarded to the winner in each category; winners will be publicly announced at SELC's special event during the Virginia Festival of the Book on Saturday, March 23, 2013.
* All submissions must have been published during calendar year 2012, and
must be postmarked by January 2, 2013. Nominations can be made by anyone,
including the author or publisher.
* Submissions must relate to the natural environment in at least one of the following states: Alabama, Georgia, North Carolina, South Carolina, Tennessee, or Virginia.
* Send 16 copies to Reed Award, SELC, 201 W. Main Street, Ste. 14, Charlottesville, VA 22902. Submissions cannot be returned. Include at least one copy in original format for proof of publication. Journalism entries must be at least 3,000 words; please provide a CD or email the text to firstname.lastname@example.org to verify word length.
* For more information: www.SouthernEnvironment.org/phil_reed
We wish to thank our esteemed panel of judges for this year's contest:
Bruz Clark-President and treasurer of the Chattanooga-based Lyndhurst Foundation, Director of its Environmental Grantmaking Program; member of the Society for Conservation Biology, Consultative Group on Biological Diversity, Land Trust Alliance, Southeastern Council of Foundations, and Timber Frame Guild.
Jim Detjen- Director, Knight Center for Environmental Journalism, Michigan State University; founding president of Society of Environmental Journalists; former award-winning reporter for Philadelphia Inquirer.
Nikki Giovanni-Grammy-nominated poet, activist and author of more than two
dozen books including essay collections, illustrated children's books, and
poetry, most recently Bicycles: Love Poems; University Distinguished Professor
at Virginia Tech.
Silas House-Author of The Coal Tattoo and Eli the Good, co-author of Something's Rising; contributor to numerous publications including Oxford American and New York Times; multiple award winner including Kentucky Novel of the Year and Chaffin Prize for Literature; Interim Director, Loyal Jones Appalachian Center; Associate Professor of Appalachian Studies, Berea College.
Janet Lembke- Author of Chickens: Their Natural and Unnatural Histories, and almost 20 other nature books; poems and essays have appeared in Audubon, Southern Review, and The New York Times Book Review.
Bill McKibben-Author of Deep Economy, The End of Nature and several other books, most recently Earth: Making a Life on a Tough New Planet; contributor to The New Yorker, Orion, The Atlantic Monthly and other publications; co-founder "350.org," an international climate campaign; scholar-in-residence at Middlebury College.
Deaderick Montague-Civic leader, teacher, and writer; guiding inspiration behind creation of the Reed Environmental Writing Award; Vice President of SELC Board of Trustees.
Janisse Ray- Poet, activist, teacher, and award-winning author of Ecology of a Cracker Childhood and four other books of literary non-fiction, including the 2012 The Seed Underground: A Growing Revolution to Save Food and a book of poems, A House of Branches; founding board member of Altamaha Riverkeeper; Reed Award winner in 2000.
Charles Seabrook-Former veteran environmental reporter for the Atlanta Journal-Constitution; author of Cumberland Island and The World of the Salt Marsh, forthcoming from the University of Georgia Press in April 2010; Reed Award winner in 1998.
Paul Sloan-Former Deputy Commissioner Tennessee Department of Environment and Conservation; founder Partners in Conservation; co-founder Little Planet Publishing; founding board member Cumberland Region Tomorrow.
Donovan Webster- Author of several books, including most recently War Stories: True Life Fiction Inspired by the Global War on Terror; former senior editor of Outside magazine; a contributor to New York Times Magazine, The New Yorker, Vanity Fair, National Geographic and Smithsonian.
The award is named in memory of SELC founding trustee Phillip D. Reed, a talented attorney and committed environmental activist who helped guide our organization through the early years before his untimely death in 1993.
A recent report by InSight Crime, an organization that researches and investigates organized crime in the Americas, has brought to light the threat posed by criminal gangs to the environment. Salvadoran, Mexican, and Chinese gangs have been clear cutting vast tracts of land in Guatemala’s Maya Biosphere Reserve. These gangs are destroying the forest for various illegal activities, ranging from money laundering through cattle ranches, to creating airstrips for planes transporting narcotics, to selling wood and rare species in the international market. This environmental destruction is often taking place in areas where the criminal gangs govern with little to no state intervention. The National Council of Protected Areas (CONAP) and Wildlife Conservation Society (WCS) fear that the environmental destruction will continue to spread as their agency workers face kidnapping and assault and are often forced to flee certain areas.
For more about this story, see: http://www.csmonitor.com/World/Americas/Latin-America-Monitor/2012/1013/Organized-crime-in-the-Americas-bad-for-the-environment-too and http://e360.yale.edu/feature/in_the_land_of_the_maya_a_battle_for_a_vital_forest/2580/For more about InSight Crime and its reports, see: http://www.insightcrime.org/ and http://www.insightcrime.org/news-analysis/how-organized-crime-damages-the-environment-in-latam
The Lake Roosevelt National Recreation Area in Washington has welcomed many tourists to its sparkling waters and sandy beaches for decades. These popular waterfronts have also been polluted by waste dumped into the Columbia River from the world’s largest lead and zinc smelter in Trail, British Columbia. This pollution is a type of fine black sand known as “slag.” The State of Washington and the Colville Indian Tribes filed suit against the Canadian company, Teck Metals Ltd., demanding that the company pay to clean up the pollution pursuant to the U.S. Superfund law. Now, a U.S. District Judge must decide whether or not the federal court has jurisdiction over this Canadian company. The company argues that jurisdiction is improper because Teck Metals is a Canadian corporation that does not do business in Washington and asserting jurisdiction over the company would interfere with the sovereign authority of Canada. However, the State believes that because Teck Metals has already acknowledged that it released pollution into the state of Washington, it is subject to U.S. jurisdiction & U.S. environmental laws. (For more information on this story, read: Wash. pollution case tests international law and/or follow the hyperlinks embedded in the story above.)
Numerous drinking water wells near the small town of McBee in Chesterfield Country, SC, are contaminated with ethylene dibromide ( EDB ) and dibromochloropropane (DBCP). Historically, gasoline and aviation fuel contained small levels of EDB and DBCP, but the former use of these chemicals as a fumigant for peach orchards has led to a recent (Sept 2012) suit by Alligator Rural Water and Sewer, a Chesterfield water utility against McLeod Peach Farms and another company in Chesterfield. Alligator Water claims that the cost of investigating the contamination and filtering EDB and DBCP from its water supply will approach $450M. Groundwater contamination claims can be exceedingly expensive to investigate and notoriously difficult to litigate; however, knowledgeable attorneys and environmental professionals often have an arsenal of techniques to address these claims and should determine the most cost-effective approach based on the existing information (much of which has often already been gathered by government agencies) and the claims. For example, contaminated wells often have forensic “fingerprints” which can identify the source of contamination without the need for extensive – and expensive – groundwater modeling. Anyone involved in groundwater contamination claims should consult with professionals who have experience pursuing these types of investigations and litigation.
(For more information on this suit, see: http://www.wmbfnews.com/story/19735940/sc-water-utility-wants-450-million-from-accused-polluters?page=1 )