SCENVIRONMENTALLAWYER.COM

A Wave of Coal Ash Suits Starts Hitting Power Companies

Roy Shelley — Tue, 16 Apr 2013 15:58:37 GMT

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.)

1) 1) http://www.myrtlebeachonline.com/2013/02/21/3341397/myrtle-beach-area-environmentalists.html

2) 2) http://www.publicintegrity.org/2013/02/22/12223/epa-delays-new-coal-ash-rules-residents-turn-courts-relief

3) 3) http://www.publicintegrity.org/2013/02/22/12223/epa-delays-new-coal-ash-rules-residents-turn-courts-relief

4) 4) http://www.macon.com/2013/01/31/2337473/13-lawsuits-claim-plant-scherer.html

CERCLA: 4th Circuit issues its eagerly-anticipated opinion in PCS Nitrogen Inc. v. Ashley II of Charleston

Roy Shelley — Mon, 15 Apr 2013 18:44:10 GMT

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 4^th 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)

Did Colorado join the “Absolute means Absolute” ranks in interpreting Pollution Exclusion provisions?

Roy Shelley — Mon, 11 Mar 2013 21:35:16 GMT

The Answer is an absolute “Maybe.”

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 1^st 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

Roy Shelley — Tue, 15 Jan 2013 21:30:40 GMT

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.

ABOUT KINSHIP

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, catherine.rabenstine@kinshipfoundation.org, or visit www.KinshipFellows.org.

Catherine Rabenstine

Communications Associate

Kinship Foundation

303 W. Madison, Suite 1800 | Chicago, IL 60606

PH: 312.803.6200 | F: 312.803.6201

catherine.rabenstine@kinshipfoundation.org| www.kinshipfellows.org

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Top 5 Environmental/Toxic Tort Litigation Stories of 2012 - North Carolina

Roy Shelley — Wed, 19 Dec 2012 11:51:00 GMT

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.”

a. http://www2.nbc17.com/news/2012/dec/18/protests-planned-outside-meeting-fracking-ar-2867933/

b. http://www.reuters.com/article/2012/07/02/us-usa-northcarolina-fracking-idUSBRE86101Q20120702

c. http://www.mountainx.com/article/43912/Gov.-Perdue-vetoes-state-fracking-bill

d. http://ens-newswire.com/2012/11/08/american-towns-fight-back-against-fracking/

2) Groundwater contaminated with carcinogens in Wake Forest area -

a. http://www.wral.com/news/local/wral_investigates/story/11550000/

b. http://www2.nbc17.com/news/2012/dec/13/nbc-17-investigates-source-water-contamination-man-ar-2855983/

3) The State tries to outlaw climate change – new law bans the use of sea rise predictions in state coastal policy decisions

a. http://abcnews.go.com/US/north-carolina-bans-latest-science-rising-sea-level/story?id=16913782#.UL-1He87wkk

b. http://pulse.ncpolicywatch.org/2012/11/28/conservatives-announce-new-sea-level-rise-response/

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

a. http://www.gastongazette.com/news/local/ranch-disputes-e-coli-claims-1.56412

b. http://www2.wspa.com/news/2012/nov/23/nc-health-officials-61-cases-e-coli-fair-ar-4777127/

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

a. http://www.epa.gov/region4/superfund/sites/npl/northcarolina/millsgapnc.html

b. http://www.mountainx.com/cts

c. http://www.mountainx.com/article/45676/Off-the-chart-UNCA-prof-tracks-CTS-mother-lode