Town’s not legally liable in contaminated daycare case, appeals court rules

Source:, May 26, 2016
By: Rebecca Forand

An appeals court has set aside the majority of rulings against the township stemming from the case of a contaminated thermometer plant that later became a daycare center.

The location was previously the Accutherm thermometer plant from 1984 to 1994 and mercury contamination concerns arose in the late 1980s.

After more than a decade of tax sales, foreclosures and bankruptcy, the area was used as Kiddie Kollege — a daycare center housing children from eight months to 13 years old — before the Department of Environmental Protection shut the center down due to the mercury contamination.

A class action lawsuit brought on behalf of the children who attended and the adults who worked or visited Kiddie Kollege asked for a court administered medical monitoring fund, punitive damages and attorney’s fees. It alleged that the township, its construction zoning official, the county and the past and present owners of the site were all liable in the case.

A trial judge originally found for the plaintiffs, however a recent appeal filed by the township overturned that ruling for Franklin Township and its construction official.

The initial trial judge ruled that Franklin Township was negligent in allowing a construction and zoning permit to be issued at the contaminated site, as its officials were aware of the previous issues.

In a decision published Thursday, however, a three-judge panel overturned that ruling, saying the township was not legally liable, saying as a government agency, it is immune in this case.

As the property was contaminated for more than a decade and had been abandoned, it was up to the property owners to disclose that information.

“The property did not present an immediate threat about which the township had a duty to warn the public,” the court wrote.

This is the latest in a long saga of court decisions regarding Kiddie Kollege. Just last month, the 10-year-long fight over who would have to pay to clean up the site was finally decided when a Supreme Court decision affirmed a lower court ruling putting the onus on the owners of the property.

Jury rejects $7.5-million hog farm case

Source:, May 26, 2016
By: Nick Draper

Jurors rejected a call for $7.5 million in damages in a precedent-setting lawsuit against a commercial hog-feeding operation, awarding nothing to those who argued their health and community were being endangered.

Ten people filed the civil complaint in 2014 against the Scott County concentrated animal feeding operation — commonly called a CAFO. The lawsuit targeted those who own hogs at the site, including Sandstone North, Hollis Shafer, Genesis Pork, Illini Pork and others. For three weeks, attorneys have been arguing whether the operation was properly managing dust, odors and flies and whether it was inhibiting the ability to enjoy personal property surrounding the facility.

The facility, in the northwest corner of Scott County, has brought in more than 15,000 hogs and produces around 28 million gallons of waste each year, according to court records.

Defense attorney Stephen Kaufmann said the case is particularly important in Illinois because it is believed to be the first of its kind — known as “private temporary nuisance” — to go through the courts. Those who sued were not seeking any type of injunctive to close the facility. Several similar cases are pending statewide.

In closing arguments this week, attorney Richard Middleton argued the plant had caused a great deal of harm to the community in its 6½ years in business because of what he called negligent practices. Continue reading

EPA tightens rules for 3M-made pollutants

Source: Saint Paul Pioneer Press (MN), May 23, 2016
Posted on:

Regulators have issued tougher rules for two pollutants found in some of Washington County’s drinking water.

The Environmental Protection Agency issued a new “health advisory” for the chemicals — PFOS and PFOA, both formerly manufactured by the 3M Corp. The agency slashed the acceptable levels of the chemicals by 75 percent to 70 parts per trillion in drinking water.

In Minnesota the impact of the ruling will be slight because most drinking water already meets the new standards, according to the state Department of Health.

Water in municipal systems — including Oakdale, Woodbury, Cottage Grove and Hastings — has been treated for years to remove the chemicals, according department spokesman Dough Schultz.

However, officials will check to see if private wells might be affected. “If they didn’t get filters the first time around then they might need them now,” said Schultz.

The number of people affected is likely to be low, said Jim Kelly, manager in the Environmental Health Division of the Department of Health.

“We have been monitoring this stuff quarterly for 12 years,” said Kelly.

He said the new standards did not mean any new risk to public health. “On the scale of hazards, I would rate this as not very high,” said Kelley. Continue reading

XL Catlin Enhances Contractor’s Professional and Pollution Legal Liability Insurance with Rectification Expense Coverage

Source:, May 25, 2016

XL Catlin’s Environmental insurance business has added new protection to its Contractor’s Professional and Pollution Legal Liability insurance to help contractors and environmental consultants protect themselves from costly mistakes.

According to Matt O’Malley, President of XL Catlin’s Environmental insurance business, “Contractors of all sizes and types face professional liability exposures, ranging from value engineering, field changes to design, vicarious liability from subcontracted design and self-performed design work. When they err in providing these services, they need the financial wherewithal to rectify mistakes and keep the project moving along.  This new coverage helps our clients absorb the costs of fixing an issue or mistake before it becomes a bigger, more costly issue.”

Standard professional liability coverage addresses third party claims related to an error and omission.   XL Catlin’s new Rectification Expense coverage provides first party insurance coverage to address the costs to correct an error or omission in an insured’s professional services, whether rendered by the contractor or on their behalf.

According to Catherine Cleary, XL Catlin’s Executive Underwriter in Environmental, “Addressing errors before a third party claim is made may reduce the overall costs and expenses associated with an error, preserve more of the contractor’s policy limits, help get the project to a timely completion and preserve the contractor’s relationships and reputation with clients and other contractors.”

Continue reading

4,400 Avoca-area plaintiffs seek reinstatement of Luzerne County environmental contamination suit

Source: The Sunday Dispatch, May 20, 2016
Posted on:

Lawyers representing 4,300 past and present Avoca-area residents filed hundreds of pages in court documents this week arguing why they should be allowed to reactivate an environmental contamination suit in Luzerne County.

The Avoca plaintiffs are appealing a February ruling by a New York federal judge ordering them to drop the Luzerne County suit seeking compensation for diseases and illnesses allegedly caused by the former Kerr-McGee Corp.’s wood treatment operation, which operated in the borough from 1956 to 1996.

U.S. District Court Judge Katherine B. Forrest concluded the Avoca plaintiffs must dismiss the Luzerne County suit and make no attempt to file similar claims because their acceptance of compensation through a Kerr-McGee bankruptcy settlement processed in New York barred them from additional action.

Kerr-McGee sought the action awarded by Forrest, arguing the Avoca plaintiffs can’t go back to the well a second time.

But in the new paperwork filed in the Second Circuit U.S. Court of Appeals in New York, the Avoca plaintiffs maintain the detailed wording in the bankruptcy settlement involving future claims did not prohibit them from pursuing the pending action in Luzerne County Court.

The Avoca plaintiffs consciously decided not to object to the bankruptcy settlement because the wording in the agreement kept the door open for them to revive the Luzerne County case, which was filed in 2005 and stayed in 2009 pending the outcome of the bankruptcy, the new filing says.

The Avoca plaintiffs knew full well the bankruptcy settlement would not make them whole, the new filing says. Continue reading

New Kansas Act Allows Relief for Purchase of Contaminated Property

Source:, May 18, 2016
By: William F. Ford, Jessica E. Merrigan, Margaret H. Richards and Grant A. Harse, Lathrop & Gage LLP

On May 9, 2016, Kansas Governor Sam Brownback signed into law the Contaminated Property Redevelopment Act (the “Act”). The goal of this Act is to allow purchasers in Kansas to acquire real property with pre-existing environmental contamination without the new owner becoming liable for cleanup costs. If statutory conditions are met, this Act will allow a purchaser of real property acquired after July 1, 2016 to be released from environmental liability for pre-existing contamination. This Act will not apply to real property purchased before July 1, 2016.

To qualify for the protections under this Act, the purchaser cannot be responsible for the contamination nor have a relationship (beyond purchasing the property) with the party responsible for the contamination. Additionally, the purchaser cannot cause or exacerbate the contamination on the property.

Under this Act, a purchaser or potential purchaser can apply to the Kansas Department of Health and Environment (“KDHE”) for a Certificate of Environmental Liability Release (“CELR”) for a contaminated property by submitting an application and providing the following documentation:

  • Phase I or Phase II environmental reports completed within industry standards;
  • environmental assessment reports completed within industry standards; or
  • other relevant reports requested by KDHE.

Continue reading

New York lets policyholder choose which insurers must pay “all sums” for claims spanning many years

Source:, May 20, 2016
By: Kenneth M. Gorenberg, Barnes & Thornburg LLP

Businesses facing asbestos or environmental claims may be encouraged by a decision from New York’s highest court earlier this month. This new decision allows the policyholder to choose which of many policy periods should initially be responsible for the policyholder’s asbestos litigation, work its way up that particular coverage tower and then select another period and another as may be necessary. See In re Viking Pump, Inc. and Warren Pumps, LLC, Insurance Appeals, No. 59 (NY May 3, 2016). The policyholder does not have to prorate its claims equally among its many years of possible coverage. Id.

The problem is all too familiar

Your company may already be in a similar situation. If not, imagine your company faces numerous lawsuits by individuals alleging they were recently diagnosed with asbestos-related illnesses caused by their work with your company’s products many years or even decades ago, or your company is being pursued for environmental contamination that allegedly occurred over a long period of time. Your company has records of its historical general liability and excess policies. For some of those years, your company has tens of millions of dollars of available coverage. For other years, there is little if any coverage available, the following can happen for any number of reasons:

  • in early years your company had no insurance or purchased low limits
  • policies had been exhausted by prior claims
  • some of the insurers are now insolvent
  • in later years asbestos or environmental liabilities were clearly excluded

Continue reading


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