New York

December 26, 2013

Second battery recycling plant emitting more arsenic

Source: Pasadena Star – News (CA), December 21, 2013
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Quemetco Inc., a lead-acid battery recycler located near the residential communities of La Puente and Hacienda Heights, was ordered to perform an extensive health assessment after air quality inspectors found the plant was spewing elevated levels of arsenic into the air.

The company must reduce its cancer risk below 25 parts per million or face stricter controls, according to a letter from Elaine Chang, South Coast Air Quality Management District deputy executive officer to Scott Bevans of Quemetco Inc. dated Dec. 10.

The recent violation from the Industry-based plant comes on the heels of a SCAQMD order to Exide Technologies in Vernon to shut down operations unless toxic air emissions are dramatically reduced. The SCAQMD Hearing Board opened a hearing on the abatement order last week at Cal State Los Angeles. Hearings on the Exide plant have been continued to Jan. 7.

Exide and Quemetco are the only two battery recycling plants in Southern California, according to the SCAQMD.

Exide takes car and marine batteries made of lead and acid and takes them apart. The materials are tossed into a smelter where lead ingots are produced and either sold, or used to make new vehicle batteries. Exide’s operation recycles between 23,000 and 41,000 automobile batteries a day, according to the SCAQMD.

Quemetco has had its problems with the air pollution agency, racking up five violations from the SCAQMD since 2005.…

December 19, 2013

Contractors and Workers at Odds Over Scaffold Law

Source: New York Times Online, December 17, 2013
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In 1885, as new engineering inventions were ushering in the era of the skyscraper, lawmakers in New York State enacted a law intended to safeguard construction workers who were finding themselves facing increasing dangers while working at ever-greater heights.

That measure, which became known as the Scaffold Law, required employers on building sites to ensure the safety of laborers working above the ground. Since then, some form of the legislation has remained on the books despite repeated attempts to repeal it.

But a lobby of contractors, property owners and insurers has in recent months renewed a campaign against the law, arguing that no less than the future of the state’s construction industry is at stake.

They argue that the law is antiquated and prejudicial against contractors and property owners, and essentially absolves employees of responsibility for their own accidents, leading to huge settlements. The payouts, they contend, have in turn led to skyrocketing insurance premiums that are hampering construction and the state’s economic growth.

On Tuesday, a coalition of contractors, including a newly formed alliance of firms owned by women and minorities, announced the start of an advertising and lobbying blitz in Albany and New York City. But a counter-lobby of unions, workers’ advocates and trial lawyers is pushing back just as fiercely. The law, they argue, is essential to ensuring the safety of workers in some of the world’s most dangerous jobs, particularly those employed by shoddy contracting firms that cut corners to save money. The law, they say, holds developers and contractors accountable for keeping job sites safe.…

December 4, 2013

$8M oil spill deal

Source: Times Union (Albany, NY), November 23, 2013
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The world’s largest oil company is paying the state more than $8 million to cover disputed costs of a state-run cleanup of a former oil terminal on the St. Lawrence River, according to state Attorney General Eric T. Schneiderman.

The payment from ExxonMobil settles a six-year legal disagreement and is the largest payment by a polluter ever made to the state Oil Spill Fund, which funds pollution cleanups run by the Department of Environmental Conservation. The fund gets most of its cash from taxpayers in the form of a gasoline tax.

Since 2006, the state spill fund has spent about $9.3 million for cleanup at Lighthouse Point on the St. Lawrence and Oswegatchie rivers in Ogdensburg, where a petroleum terminal owned by ExxonMobil and its corporate ancestors operated for about a century before closing in 1984. Pollution was found there in 2001, and a state cleanup began several years later.

ExxonMobil initially believed it settled the cleanup bill for $6 million in 2006 with former Comptroller Alan Hevesi, but his successor, Thomas DiNapoli disputed that, saying the extra costs had to be addressed in any settlement. DiNapoli sent the case to Schneiderman.

“Through today’s agreement, we’re not only returning millions to the state but also holding ExxonMobil responsible for their role in this oil spill,” the attorney general said.

The remaining balance of the cleanup, more than $1 million, will be borne by the spill fund.

“We are pleased to have reached a settlement with the State of New York,” said ExxonMobil spokesman Todd Spitler.

For 2012-13, the fund spent about $14.8 million statewide on cleanups, and recovered about $8.2 million in reimbursement and penalties from polluters, ending the year with a $3 million deficit, according to state records. The fund began 416 cleanups statewide during that time, and completed 111.

Since the fund began in 1978, it has spent more than $464 million on spill cleanups, $306 million to run the program, and collected $196 million from polluters. During that same period, the gasoline tax kicked in $577 million.


October 28, 2013

Policyholders: Beware of Choice of Law Provisions

Source: Saxe Doernberger & Vita, P.C., October 2013

New York District Court Applies “No Prejudice” Rule to Late Notice Claim for Policy “Issued and Delivered” Outside the State with NY Choice of Law Provision

A New York federal district court applied the antiquated “no prejudice” rule to an insured’s late notice claim in Indian Harbor Insurance Co. v. City of San Diego, 2013 WL 5340380 (S.D.N.Y. Sept. 25, 2013). The insurance policy in question was issued in Pennsylvania, delivered to the policyholder in California, and insured risks located in California. The policy contained both New York choice of law and forum selection clauses. In holding that the insurer had no duty to indemnify, the court held that only those policies “issued and delivered” in New York are entitled to take advantage of New York’s statutory “notice-prejudice” standard, which requires that an insurer show prejudice resulting from the policyholder’s late notice in order to deny coverage on that basis. Rather, the court held that foreign insurance policies with New York choice of law provisions are subject to the draconian common law “no prejudice” standard, under which an insurer does not have to show that it was prejudiced by late notice in order to deny coverage.

The Indian Harbor case involved three underlying pollution claims made against the California State Association of Counties and the City of San Diego (collectively “the City”). For each claim, the City failed to give timely notice to the insurer after receiving the claim. The insurer disclaimed coverage and sought a declaration that it had no duty to indemnify the City due to the late notice.…

October 28, 2013

Facing asbestos lawsuits, paper giant launched research program

Source:, October 21, 2013
By: Jim Morris

Atlanta-based Georgia-Pacific initiated a secret program designed to prove its product didn’t cause cancer

In the spring of 2005, Georgia-Pacific Corp. found itself facing nearly $1 billion in liability from a product it hadn’t made in nearly three decades: a putty-like building material, known as joint compound, containing the cancer-causing mineral asbestos.

Named in more than 60,000 legal claims, Atlanta-based Georgia-Pacificsought salvation in a secret research program it launched in hopes of exonerating its product as a carcinogen, court records obtained by the Center for Public Integrity show. It hired consultants known for their defense work to conduct studies and publish the results, with input from the company’s legal department — and is attempting to keep key information hidden from plaintiffs.

The Consumer Product Safety Commission had banned all asbestos-containing joint compound as of 1978, and Georgia-Pacific, maker of a widely used version called Ready-Mix, had raised no objection. But in 2005, as asbestos-related diseases with long latency periods mounted, the company revisited the issue with one aim: to defend lawsuits filed by people like Daniel Stupino, a part-time renovation worker who died last year of mesothelioma, a form of cancer virtually always caused by asbestos exposure.

Under its research program, Georgia-Pacific paid 18 scientists a collective $6 million, documents show. These experts were directed by Georgia-Pacific’s longtime head of toxicology, who was “specially employed” by the company’s in-house counsel to work on asbestos litigation and was under orders to hold “in the strictest confidence” all information generated.…

October 7, 2013

Dangerous levels of radioactivity found at fracking waste site in Pennsylvania

Source: Guardian Web, October 3, 2013
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Scientists have for the first time shown dangerous levels of radioactivity and salinity at a shale gas waste disposal site that could contaminate drinking water. If the UK follows in the steps of the US “shale gas revolution”, it should impose regulations to stop such radioactive buildup, they said.

The Duke University study, published on Wednesday, examined the water discharged from Josephine Brine Treatment Facility into Blacklick Creek, which feeds into a water source for western Pennsylvania cities, including Pittsburgh. Scientists took samples upstream and downstream from the treatment facility over a two-year period, with the last sample taken in June this year.

Elevated levels of chloride and bromide, combined with strontium, radium, oxygen, and hydrogen isotopic compositions, are present in the Marcellus shale wastewaters, the study found.

Radioactive brine is naturally occurring in shale rock and contaminates wastewater during hydraulic fracturing known as fracking. Sometimes that “flowback” water is re-injected into rock deep underground, a practice that can cause seismic disturbances, but often it is treated before being discharged into watercourses.

Radium levels in samples collected at the facility were 200 times greater than samples taken upstream. Such elevated levels of radioactivity are above regulated levels and would normally be seen at licensed radioactive disposal facilities, according to the scientists at Duke University’s Nicholas School of the Environment in North Carolina.…

September 26, 2013

United States: Second Circuit Canvases Case Law, Upholds Pollution Exclusion

Source:, September 23, 2013
By: Jason D. Sanders and Virginia L. White-Mahaffey, Steptoe & Johnson LLP

In Emerson Enterprises, LLC v. Hartford Accident and Indemnity Co. et al., No. 12-4287-CV, 2013 WL 4753564 (2d Cir. Sept. 5, 2013), the Second Circuit, applying New York law, affirmed the district court’s summary judgment order holding that three liability insurers had no duty to defend their policyholder against environmental contamination claims because their policies’ respective pollution exclusions barred coverage for pollution resulting from intentional conduct.

The policyholder in Emerson owned property in New York that it had leased out for industrial operations since the 1960s. In 2000, a dry well containing hazardous substances was discovered on the property and the New York State Department of Environmental Conservation (NYDEC) demanded that the policyholder pay for the investigation and remediation of the contamination. See Emerson Enterprises, LLC v. Crosby, No. 03-CV-6530, 2007 WL 4118299, *1 (W.D.N.Y. 2007). The policyholder subsequently sought a declaratory judgment that the three insurers were required to defend and indemnify it in the proceedings brought by the NYDEC. The policyholder argued that it was entitled to coverage under the policies of two of the insurers, based on an exception that made the pollution exclusion in those policies inapplicable to a “sudden and accidental” discharge of pollutants. The policyholder likewise argued that it was entitled to coverage under the third insurer’s policies because the pollution exclusion in those policies applied only where the discharge from which the damage arose was “expected or intended.”…

July 30, 2013

NY Dairy Rules Lead to Lawsuit

Read here about lawsuit brought by environmental groups in New York over dairy farm regulations.


July 30, 2013

$104.7M well-contamination judgment against Exxon Mobil upheld

Source: Business Insurance, July 29, 2013
By: Judy Greenwald

A federal appellate court panel has upheld a $104.7 million judgment for New York City against Exxon Mobil Corp. for allegedly contaminating city-owned wells in Queens with a gasoline additive from the mid-1980s through the mid-2000s.

Irving, Texas-based Exxon Mobil said it plans to appeal the ruling to the U.S. Supreme Court.

According to Friday’s 117-page ruling by a unanimous panel of the 2nd U.S. Circuit Court of Appeals in New York in In Re: methyl tertiary butyl ether (MTBE) products liability litigation, in October 2003, New York City sued Exxon and 28 other petroleum companies because of alleged injuries to its water supply from gasoline caused by the release of the chemical methyl tertiary butyl ether, the use of which New York state banned in 2004.

Treatment with the chemical “increased the oxygen content of gasoline and mitigated harm to air quality caused by automobile emissions, thereby furthering the goals of the Clean Air Act,” said the ruling. “Because of spillage and leakage for gasoline stored in underground tanks, however, MTBE-treated gasoline was released into the ground, contaminating groundwater supplies.”

Throughout the next year, the city amended its complaint to include 26 additional petroleum company defendants. All the defendants except Exxon Mobil settled before trial, according to the ruling.

2009 ruling

After an 11-week trial, in October 2009, a federal jury found Exxon liable for failure to warn, negligence, public nuisance and trespass, but acquitted it on liability on design defect and private nuisance charges.

The U.S. District Court entered a $104.7 million judgment against Exxon Mobil and its units. In appealing the court’s ruling, among other arguments, Exxon Mobil said the city’s common law claims are pre-empted by the federal Clean Air Act.


July 9, 2013

Second Circuit rules that transfer of contaminated fuel oil between containers does not give rise to a “pollution condition”

Source:, July 1, 2013
By: John O’Connor and Christopher M. Dougherty, Steptoe & Johnson LLP

In Colonial Oil Industries Inc. v. Indian Harbor Ins. Co., No. 12-4063-cv, 2013 US App. LEXIS 12946 (2d Cir. June 25, 2013), the Second Circuit, applying New York law, ruled that an insurer did not owe defense and indemnity coverage under a Pollution and Remediation Legal Liability (“PLL”) policy for costs incurred from the transfer of contaminated fuel oil from one container to another. Because “the unwitting introduction and transfer of polluted oil into containers otherwise meant to hold that oil” did not fall within the scope of a “pollution condition” as defined by the policy, the court affirmed the grant of summary judgment to the insurer. Id. at *10.

In Colonial Oil Industries, the policyholder’s business involved the transportation, storage and sale of fuel oil. Id. at *2. Over the course of two weeks in September 2009, the policyholder received 25 truckloads of oil from a third-party seller, which were placed into a partially-filled storage tank. Id. After some of the oil in the tank had been delivered to a customer, the policyholder discovered that the fuel oil it had received was contaminated with polychlorinated biphenyl (“PCB”). Id. This contamination resulted in lost oil and decontamination and remediation costs to both the policyholder and its customer. Id.