July 21, 2017

Love Canal’s Legacy – Second Circuit Affirms Pollution Exclusion in Plumber’s Insurance Policy Bars Defense and Indemnification Claims

Source:, July 20. 2017
By: Diana A. Silva, Manko Gold Katcher & Fox

Love Canal – the infamous neighborhood in Niagara Falls, New York where large quantities of chemical waste was dumped, and which became the catalyst for enactment of the federal Superfund program – is still generating legal opinions, nearly 40 years after President Jimmy Carter declared a federal health emergency and Love Canal became the first Superfund site.

The case, The Cincinnati Insurance Co. v. Roy’s Plumbing, Inc., Dkt. No. 16-2511-cv (2d Cir., May 31, 2017), is an insurance coverage dispute for claims in an underlying personal injury and property damage litigation filed by three families residing near Love Canal against a local plumbing company, that the homeowners claim negligently performed various sewer line repairs that disturbed sediments from the Love Canal Superfund containment area, resulting in discharges of contamination onto their properties.  The homeowners also assert that the plumbing company’s alleged negligent actions included pressure washing local roadways and storm drains, which further dispersed the contamination.  The homeowners sought damages, including punitive damages, an injunction for remediation of the contamination, and medical monitoring.

The plumbing company filed a claim against its insurer for defense and indemnity of the homeowner lawsuit, and the insurer disclaimed coverage under a “pollution exclusion” in the plumbing company’s policy.  The pollution exclusion – a standard provision in general commercial liability insurance policies – excluded coverage for “bodily injury or property damages which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release, escape, or emission of pollutants at any time.”  After the plumbing company refused to withdraw its claims for coverage under the insurance policy, the insurance company filed a declaratory judgment action to affirm that it was not obligated to provide coverage for the homeowner lawsuit.  The plumbing company counterclaimed, arguing the policy did provide coverage, which placed the pollution exclusion issue squarely before the court.

The United States District Court for the Western District of New York agreed with the insurance company and granted summary judgment – confirming that the insurer did not have a duty to defend or indemnify the plumbing company in the underlying homeowner lawsuit.

In a recent summary order, the United States District Court for the Second Circuit agreed with the District Court, and affirmed the summary judgment ruling.  The Second Circuit noted that an insurer’s duty to defend is “exceedingly broad” under New York law, and an insurer bears a “heavy burden of demonstrating that the allegations of the complaint cast the pleadings wholly within the exclusion,” in order to deny coverage.  But, here, the homeowner lawsuit sought personal injury and property damages caused by the release of hazardous substances, which fell directly within the policy’s pollution exclusion.  Therefore, the insurance company had no duty to defend or indemnify the plumbing company in the lawsuit.

While this case does not necessarily break new ground, it reaffirms that the pollution exclusion in commercial insurance policies is alive and well, and will be upheld when the facts fall within the language of the exclusion.…

July 21, 2017

GE to Pay New York $13.5m for Upstate Waste Contamination

Source:, July 20, 2017
By: Lars-Eric Hedberg

General Electric will pay New York $13.5 million to resolve its potential liabilities at a contaminated upstate site, after the parties reached an agreement.

Magistrate Judge Christian F. Hummel of the U.S. District Court for the Northern District of New York signed off on the consent decree July 14 ( New York v. Gen. Elec. Co. , N.D.N.Y., No. 1:14-cv-00747, 7/14/17 ).

The agreement protects GE from further monetary contributions under Section 113(f)(2) of Comprehensive Environmental Response, Compensation, and Liability Act and dismissed all state hazardous waste law claims. The agreement also helps the parties avoid “prolonged and complicated litigation” spawned by the statute.

The state sought over $30 million from GE for costs it incurred responding to releases of hazardous substances into soil and groundwater at the site.

GE contracted with Richard Alkes, the former owner of 53 Luzerne Road in Queensbury, N.Y., to remove scrapped capacitors, which are electrical components, and dispose of them on the property. Alkes cut open the capacitors to salvage the metals, releasing polychlorinated biphenyls and other hazardous substances into the soil, according to the state’s complaint. He buried parts of the capacitors he couldn’t salvage in shallow pits.

In 1979, the state built a cell on an adjacent property at 51 Luzerne, and disposed of soil and capacitors there. The cell, however, reached capacity before the state could add all the contaminated waste. In 2008, the state Department of Environmental Conservation began to implement a permanent remedy for the entire 55-acre site, which included some off-site disposal of PCB-contaminated soil.

In a March 31 decision and order, the court ruled that a question of fact existed as to whether GE arranged for disposal of hazardous waste at the site.

GE did not respond to Bloomberg BNA’s request for comment in time for publication.

Greenberg Traurig represented GE. The Office of Attorney General represented the state.

For More Information

The consent decree is available at

July 21, 2017

Ametek Can’t Shake Elementary School Contamination Suit

Source:, July 20, 2017
By: Peter Hayes

A teacher and students at a Southern California elementary school presented enough exposure and causation evidence to proceed with claims stemming from a toxic plume that migrated from an adjacent industrial site, the Southern District of California ruled ( Trujillo v. Ametek, Inc. , 2017 BL 246482, S.D. Cal., No. 15-cv-1394, 7/17/17 ).

The ruling allows a proposed class action to proceed against Senior Operations LLC and Ametek, Inc., the current and former owners of a factory next to Magnolia Elementary School.

The suit isn’t frivolous merely because the California Department of Toxic Substances Control has concluded that Magnolia’s occupants don’t face any human health risk as a result of the underground plume, the court said.

The plaintiffs met their burden by presenting expert reports stating they were exposed to “a significant level of chemical toxins that has increased their risk of developing certain health problems,” the court said.

The complaint alleges that toxins in an underground waste storage tank leaked, causing a plume containing trichloroethylene, benzene, toluene and other contaminants to spread to the school property.

The plaintiffs are seeking compensatory and punitive damages as well as medical monitoring costs.

The court in June 2016 issued a case management order requiring each named plaintiff to make a showing of exposure, increased risk of specific injury and causation, but did not require that such a showing be made as to any of the putative class members.

Judge Gonzalo P. Curiel issued the opinion.

Baron & Budd PC represents the plaintiffs.

Procopio, Cory, Hargreaves & Savitch, LLP represents Ametech.

Buchanan Ingersoll & Rooney PC, represents Senior Operations.

To contact the reporter on this story: Peter Hayes in Washington at

To contact the editor responsible for this story: Steven Patrick at

For More Information

The opinion is available at

July 19, 2017

Northern Michigan community tries to stay ahead of massive contaminated plume

Source:, July 18, 2017
By: Kaye Lafond

A map of the 13 trillion gallon plume of contaminated groundwater extending from Mancelona, Michigan.

A map of the 13 trillion gallon plume of contaminated groundwater extending from Mancelona, Michigan. Kaye LaFond/Michigan Radio

When I arrive at Bethany Hawkins’ home, the first thing she does is offer me a glass of her well water.
“Our water’s always been really good,” she says.

But Hawkins’ well could have an expiration date. It’s an estimated 675 feet from the edge of a plume of polluted groundwater.

A toxic legacy

There’s an estimated 13 trillion gallons of groundwater laced with TCE, or trichloroethylene,  stretching from the village of Mancelona 6 miles away to the edge of Hawkins’ gated community.

TCE is a known carcinogen that can also affect the liver, the kidneys, the immune system and the central nervous system. The plume is the legacy of an auto parts manufacturing plant that stored TCE-containing degreaser waste in unlined pits.

Hawkins and her husband bought this house in the northern Michigan resort area of Shanty Creek back in 2004. At the time, they knew about the TCE plume. But they chose their home because they thought it would be out of the plume’s path. But now……

July 19, 2017

Wallingford company working to address soil contamination from abandoned oil tanks

Source:, July 18, 2017
By: Matthew Zabierek

A Hall Avenue company is working with an engineering firm to control soil contamination around abandoned underground oil tanks.

A 2009 environmental assessment conducted at Times Microwave Systems, a division of Amphenol Corporation, found excessive amounts of petroleum hydrocarbons in soil on the property at 358 Hall Ave. Petroleum hydrocarbon refers to any chemical compound that originates from crude oil.

The contamination was produced by two abandoned 10,000 gallon underground oil tanks installed in 1947 and 1951, prior to the company’s arrival. It was detected during an assessment performed after Amphenol purchased Times Microwave Systems and moved its headquarters to the Hall Avenue building.

Times Microwave Systems has contracted with engineering firm Arcadis to install a geomembrane cap over the oil tanks to prevent the pollutants from spreading and mitigate the “potential exposure to and infiltration of rainwater through the contaminated soil,” a legal notice for the project stated.

The firm filed an application with the state Department of Energy and Environmental Protection earlier this summer to install the cap, which would cover the petroleum-impacted soil and “render it environmentally isolated,” the application states.…

July 19, 2017

Spills, Fines and Route Disputes Plague Rover Pipeline

Source:, July 18, 2017
By: Kathiann M. Kowalski

The Rover Pipeline project in Ohio faces continuing problems, with more spills of drilling mud, ongoing questions about diesel fuel contamination, and orders issued last week by both the Ohio Environmental Protection Agency (EPA) and the Federal Energy Regulatory Commission (FERC).

“The significant thing that is very new here is that Ohio EPA has said that they are working very closely with the Federal Energy Regulatory Commission,” observed Cheryl Johncox of the Sierra Club. FERC issued a July 12 order that echoes multiple directives from the Ohio EPA’s July 7 order to Energy Transfer Partners.

Energy Transfer Partners, the Texas-based company that runs the pipeline project, has also now acknowledged Ohio EPA’s regulatory authority, Johncox noted. “Those are pretty big significant changes to this conversation.”

FERC also issued another notice of violation on July 13, claiming that Energy Transfer Partners “did not fully and forthrightly disclose all relevant information” before demolishing a historic home. Meanwhile, more problems with the project have also emerged in Michigan and West Virginia.

The concerted federal and state enforcement actions in Ohio, plus the other disputes, could slow plans for the pipeline to begin operation early next year.…

July 18, 2017

Fuel spill contaminates E.E. Wilson Wildlife Area

Source:, July 17, 2017
By: Tracy Loew

A massive fuel spill on Highway 99W near Adair Village has caused traffic detours and delays for the past 10 days as the state clears contaminated soil and repairs the road.

But Monday the situation worsened. Managers at the nearby E.E. Wilson Wildlife Area found out fuel contamination has spread into the groundwater.

“We were hoping it wasn’t going to make it here,” wildlife area manager Shawn Woods said. “We’ve been told it’s likely they’ll have to do soil removal.”

Contamination also has spread to Coffin Butte Landfill on the other side of the road, Katherine Benenati, a spokeswoman for the state Department of Environmental Quality said.

Salem-based Oregon Petroleum Transport is on the hook for the cost of environmental cleanup and for rebuilding an 800-foot stretch of the highway.

On July 7, one of the company’s double-tanker trucks was southbound with a load of about 11,000 gallons of gasoline and diesel when it crashed into a ditch just south of the intersection with Adair Frontage Road, between mileposts 74 and 75.

“We responded quickly. Our insurance company responded quickly. We take this very seriously,” Terry McEvilly, an executive at the privately held company, said Monday.…

July 18, 2017

Knowledge of general and professional liability exposures and adequate covers can set agents apart

Source:, July 5, 2017
By: Joseph S. Harrington, CPCU

Judging from the rhetoric of the 2016 U.S. political campaign, one might have expected to see cranes and other heavy equipment popping up like weeds throughout the American landscape.

At times, it seemed that there was only one thing most Americans and the major political parties could agree on: Substantial public building projects, financed with low interest rates and innovative private-public partnerships, would address chronic shortcomings in the nation’s infrastructure while creating hundreds of thousands of good-paying jobs.

So far, it hasn’t worked out that way. To date, President Donald Trump’s idea for $1 trillion in infrastructure work appears to be on the back burner, as Washington is consumed with investigations and congressional Republicans focus on other policy priorities, particularly healthcare and tax policy.

More than $300 billion in highway funding is available over five years under the federal “FAST” Act of 2015 (Fixing America’s Surface Transportation), and some states have gone ahead with public projects, but there’s little in the works to match the expansive expectations of 2016.

“So far, infrastructure work is tracking with the overall construction market,” says Jeff Slivka, president of New Day Underwriting Managers, an intermediary to agents and brokers in construction-related professional liability, environmental insurance, and risk management.

“Funding is still a question on both the state and federal level,” he continues. In particular, “the amount of investment the [Trump] administration will be able to release for infrastructure is still to be determined.”…

July 17, 2017

Oil Spill After Contractor Cuts Pipeline

Read here about a 50,000 gallon oil spill in Texas that occurred after a contractor cut an underground pipeline.…

July 17, 2017

Report: Tennessee officials find groundwater contamination under TVA coal plant

Source:, July 17, 2017
By: Robert Walton

  • The Associated Press reports Tennessee health officials are investigating high levels of arsenic and lead found under a coal generating plant owned by the Tennessee Valley Authority, but so far, they believe there is no threat to local drinking water.
  • Groundwater under the Allen Fossil Plant in Memphis measured at 300 times federal drinking water standards, according to The Commercial Appeal, but the Tennessee Department of Environment and Conservation does not believe there is any threat.
  • The plant is located five miles southwest of downtown Memphis, according to TVA. The three coal units can provide more than 700 MW, but are slated to be replaced with natural gas.

Dive Insight:

TVA already planned to retire coal units at the Allen plant  next summer and replaced them with cleaner natural gas. Once complete, TVA says the new gas emissions will reduce carbon emissions by 60%, nitrogen oxides by 90%, and will virtually eliminate sulfur dioxide emissions. But before the new units come online, TVA will be forced to deal with legacy issues.

The AP reports the Tennessee Department of Environment and Conservation has asked Memphis Light, Gas & Water to test its treated drinking supplies. However, the agency believes a level of clay between contamination and the aquifer is protecting drinking water.

Memphis Light Gas & Water built the plant in the 1950s, and TVA purchased it in the mid-80s. The federal power agency is also developing a small solar project at the site, expected to be complete this fall. Memphis Daily News reports the $1 billion gas replacement project is expected to be complete next year.