Recyclers Say NCR Should Cover Full $1B For River Cleanup
Los Angeles (November 19, 2013, 8:28 PM ET) -- Recycling mills on Monday asked
the Seventh Circuit not to hold them liable for any of the $1 billion in cleanup costs for pollution at a Wisconsin river, alleging they didn't know NCR Corp. was using a toxic chemical in its
Georgia-Pacific LLC and other mills and municipal wastewater facilities argued there was no genuine issue of material fact precluding a Wisconsin federal court from issuing a summary judgment that ordered NCR to cover all the response costs.
The paper manufacturer and Appvion Inc., f/k/a Appleton Papers Inc., claimed the district judge should have required the allocation of costs to be proportional to the amount of polychlorinated biphenyl, or PCBs, each party discharged into Wisconsin's Lower Fox River.
But NCR's affiliates — which also include U.S. Paper Mills Corp., CBC Coating Inc., Fort James Corp. and Menasha Corp. — contend they didn't know of any environmental risks associated with the chemical until after NCR stopped using it at the Superfund site.
"NCR uniquely knew of the environmental risks of the PCBs in its paper but concealed that risk from defendants, government officials and the public while accelerating production," Monday's brief said. "Defendants, in contrast, knew nothing about any potential risks until after NCR stopped using PCBs."
The plaintiffs and defendants allegedly contaminated sediment in the Fox River and Green Bay by making and recycling a particular type of carbonless copy paper that contained PCBs from 1954 until 1971. The U.S. Department of Justice sued 10 companies and two municipalities over the alleged pollution in October 2010.
NCR argued that its share of liability for the cleanup was relatively small because its experts demonstrated that only 9 percent and 6 percent of the PCB pollution in the sections of the Little Fox River at issue came from its paper production facilities.
A Wisconsin district judge decided that though the defendants may have may have been responsible for up to half of the PCBs discharged into the polluted sites, they weren't liable for the cleanup because they didn't know the chemicals could cause lasting damage to health and the environment, according to court papers.
But extensive discovery in the litigation revealed that NCR knew about the PCB risks since at least the late 1960s and hid that information, according to the defendants.
The plaintiffs also said on appeal that the district court hadn't considered other PCB sources besides NCR, but the defendants countered Monday that the judge found that the overwhelming majority of PCBs in the river originated from NCR's paper.
Georgia-Pacific and others further claimed that NCR allegedly cooperating more with the federal government's order to clean up the Superfund site didn't mean it should be excused from any of the cleanup costs.
Besides, according to the defendants, NCR hasn't acknowledged its own sluggishness in responding to the risks associated with PCBs after discovering them. Instead, the paper manufacturer covered up the risks in order to avoid a public relations crisis and avoid a potential drop in sales, according to the defendants.
Attorneys for both parties didn't immediately respond to requests for comment on Tuesday.
NCR is represented by Evan Chesler and Darin McAtee of Cravath Swaine & Moore LLP.
Georgia-Pacific and Fort James Corp. are represented by Mary Rose Alexander of Latham & Watkins LLP and Kathleen M. Sullivan, William B. Adams and David S. Mader of Quinn
Emanuel Urquhart & Sullivan LLP.
U.S. Paper Mills is represented by Scott W. Hansen and Steven P. Bogart of Reinhart Boerner Van Deuren SC, and Thomas R. Gottshall of Haynsworth Sinkler Boyd PA.
CBC Coating is represented by Susan E. Lovern and Michael P. Carlton of Von Briesen & Roper SC.
Menasha is represented by Philip C. Hunsucker, Allison E. McAdam, Marc A. Shapp, and Anne E. Lynch of Hunsucker Goodstein PC.
The consolidates cases are NCR Corp. et al. v. George A. Whiting Paper Co. et
al., case numbers 13-2447 in the U.S. Court of Appeals for the Seventh Circuit.
--Additional reporting by Lana Birbrair. Editing by Stephen Berg.
Hunsucker Goodstein is pleased to announce that Andrew Cooper has
joined the firm in its Washington DC office.
Drew has practiced in the area of environmental law for over 22 years focusing on transactions, compliance counseling, and litigation, advising clients as purchasers, sellers, lenders, and borrowers. His extensive background in environmental litigation includes CERCLA contribution claims, diminution of property value claims, penalty proceedings under environmental
statutes and insurance recovery litigation for environmental damage. He has successfully identified, addressed, and negotiated environmental concerns in literally hundreds of transactions.
Drew earned a Bachelor of Arts degree from Yale University and a Juris Doctor degree from the University of Pennsylvania Law School. Drew’s depth of experience will strengthen Hunsucker Goodstein’s comprehensive environmental practice.
Hunsucker Goodstein PC serves clients nationwide in the environmental, insurance coverage, and securities arbitration practice areas.
Michael Goodstein and Stacey Myers authored a chapter in the 2013 International Comparative Legal Guide to Environment and Climate Change Law. Their submittal is entitled "Funding Remediaiton of Environmentally Impaired Properties: Strategies That Maximize Resources
Anne Lynch Named Shareholder of Hunsucker Goodstein PC
Washington, DC – Hunsucker Goodstein PC is pleased to announce that Anne Lynch has been named a Shareholder of the firm. Ms. Lynch represents both private and public clients, including major corporations and small businesses, Indian Tribes and States on a variety of environmental litigation and transactional issues. Her recent work has included:
- Summary judgment granted in favor of policyholders recognizing their insurance company had a duty to defend for environmental claims at the Breslube Penn Superfund Site in Pennsylvania.
- Discovery, motion practice and presentation of evidence at trial on behalf of defending parties and third-party plaintiffs in remedy, cost recovery and natural resources damages litigation regarding the Fox River Superfund Site in Wisconsin.
- Landmark appellate litigation under Arizona public nuisance law on behalf of the Hopi Tribe.
- Discovery, motion practice and presentation of evidence at trial on behalf of the State of North Carolina in air pollution litigation against the Tennessee Valley Authority.
Ms. Lynch holds a Bachelor of Science degree from Notre Dame University and a Juris Doctor degree from Georgetown Law School. Hunsucker Goodstein PC continues to serve clients nation-wide in the environmental, insurance coverage, and securities arbitration practice areas from offices in California, Colorado, and Washington, DC.
International Municipal Lawyers Association’s President, Sheryl King Benford, has
named Philip Hunsucker, Chairman of the organization’s Health and Environmental Section.
Phil Hunsucker of Hunsucker Goodstein PC is pleased to lead this section.
Hunsucker Goodstein has worked with municipalities on environmental and
regulatory issues throughout the United States. The International Municipal
Lawyers Association is a non-profit, non-partisan organization that has been an
advocate and valuable legal resource for local government attorneys since
1935. President Benford added “Active sections are vital to the continued
success of IMLA as a relevant and valuable resource for local government
attorneys throughout the United States and Canada.”
SAND CREEK MASSACRE DESCENDANTS FILE SUIT FOR PROMISED REPARATIONS
“It’s time for the United States to make good on its promises under the Treaty,” said David Askman, attorney for the descendants. “It is unconscionable that the government has waited so long.”
Denver, CO - Around sunrise on November 29, 1864, Colonel John Chivington ordered United States cavalry troops to attack peaceful bands of the Cheyenne and Arapaho Tribes camped on the banks of Sand Creek, near Fort Lyon, Colorado. Though flying the American flag and a white flag of truce, hundreds of Native Americans, mostly the elderly, women, and children, were killed and mutilated.
Descendants of persons massacred by the United States Cavalry near Sand Creek, Colorado, filed suit today against the United States in the U.S. District Court in Denver. The plaintiffs are each descendants of victims of the November 29, 1864 massacre. Through the suit, the descendants are seeking an accounting of monies the United States agreed to pay to survivors.
Both the United States Congress and the military initiated investigations of the massacre. In the 1865 Treaty of Little Arkansas, the United States recognized “the gross and wanton out-rages perpetrated” by the cavalry, and agreed to pay reparations to the surviving families of those “who suffered at Sand Creek.” The descendants have never been paid.
“It’s time for the United States to make good on its promises under the Treaty,” said David Askman, Hunsucker Goodstein attorney for the descendants. “It is unconscionable that the government has waited so long.”
Homer Flute, a Sand Creek massacre descendant and Trustee of the Sand Creek Massacre Descendants Trust, welcomed the filing. “It has been nearly 150 years since our ancestors were deceived by a promise of peace and safety by flying the American flag and a white flag of truce in their camp at Sand Creek. Colonel Chivington, commanded the U.S. troops in the murder and mutilation of our ancestor. Most of those slaughtered were old men, women, and children who believed the promises of the government of the United States—a promise broken. Colorado territorial governor John Evans also served as ex officio superintendent of Indian affairs in Colorado, used his position to send special messengers to our ancestors, directing them to report to the nearest military fort with the promise of safety and protection. Another promise was made in the 1865 Treaty, and, like the first, has been broken. It is now time for the government to keep its word to the descendants. There are more than 15,000 descendants who have been identified at this time. They deserve the fulfillment of the broken promises.”
Mr. Askman, of the Hunsucker Goodstein firm in Denver, is representing the descendants with Larry Derryberry of Derryberry & Naifeh in Oklahoma City, and Jason Aamodt of the Environmental Trust Law Firm in Tulsa.
April 25, 2013
Contact Person: Michael D. Goodstein, (202) 895-5380
HOPI TRIBE WINS APPEAL REVERSING ARIZONA SUPERIOR COURT’S DECISION ON ITS PUBLIC NUISANCE CLAIM AGAINST THE CITY OF FLAGSTAFF
FOR IMMEDIATE RELEASE
WASHINGTON, DC --- The Arizona Court of Appeals has reversed a prior decision by the Arizona Superior Court dismissing the complaint filed by the Hopi Tribe against the City of Flagstaff claiming that the City’s contract to sell reclaimed wastewater to the Arizona Snowbowl will cause a public nuisance. The Arizona Court of Appeals unanimously held that the Hopi Tribe’s nuisance claim states a claim for public nuisance under Arizona law, is timely, and is not barred by its prior litigation against the U.S. Forest Service concerning the Forest Service’s issuance of a permit to the Arizona Snowbowl for certain upgrades including the use of reclaimed wastewater for snowmaking.
The Arizona Court of Appeals summarized the Hopi Tribe’s allegation that “treated sewage effluent that has been processed through the City’s wastewater treatment plants . . . retains certain recalcitrant chemical components that are not degraded or removed in the wastewater treatment process, some of which are harmful to animals,” and that the sale of reclaimed wastewater for snowmaking at the Snowbowl will “interfere with the public use and enjoyment of the surrounding land.”
The Court recognized that, under Arizona common law, public nuisance claims are assessed by balancing the reasonableness of the use against the harm, considering the nature of the area. The Court found that the allegations in the Hopi Tribe’s complaint were sufficient to allege a nuisance under this standard. The City had also argued that the Hopi Tribe had not complied with Arizona law requiring it to file a notice of its claim with the City, that the Hopi Tribe’s claim was barred by the statute of limitations, and that the nuisance claim was precluded because the Tribe had previously participated in litigation against the U.S. Forest Service concerning the permit it issued to the Arizona Snowbowl. Each of these arguments was rejected, and the Court remanded the case to the Arizona Superior Court.
The decision remands the case to the Arizona Superior Court for proceedings on the Hopi Tribe’s public nuisance claim. Robert Lyttle, General Counsel for the Hopi Tribe stated that “the use of reclaimed wastewater for snowmaking by Arizona Snowbowl violates of Arizona common law, and the Arizona Court of Appeals correctly recognized that the Hopi Tribe must be allowed to present its case.” Hopi Tribe Chairman Leroy Shingoitewa confirmed: “Snowmaking with reclaimed wastewater on Nuvatukyaovi is wrong. The use of reclaimed wastewater by the Snowbowl has impeded and infringed on the use and enjoyment of these areas by the Hopi Tribe and others who value the pristine nature of the Kachina Peaks Wilderness Area. We look forward to the opportunity to present our environmental and public health evidence. ”
The Arizona Snowbowl used reclaimed wastewater from the City of Flagstaff for snowmaking on a portion of the ski resort this past winter. The San Francicso Peaks, where the Snowbowl is located, is ecologically unique and contains rare types of habitat and species. The area around the Arizona Snowbowl had been used by the Hopi Tribe since time immemorial and is of cultural and religious significance to the Hopi Tribe.
WASHINGTON, DC --- Wiseman Oil Company Inc. was awarded partial summary judgment in the U.S. District Court, Western District of Pennsylvania on Tuesday in its action seeking defense costs and damages from TIG Insurance Company related to the $26 million cleanup of the Breslube Penn Superfund Site located in Coraopolis, Pennsylvania. Both parties had filed for summary judgment to resolve whether TIG had a duty to defend Joseph and Ruth Wiseman, the owners of Wiseman Oil, in the CERCLA action brought by the United States Environmental Protection Agency.
United States District Judge Joy Flowers Conti adopted the report and recommendation authored by Chief Magistrate Judge Lisa Pupo Lenihan as the opinion of the court. The opinion held that TIG's standard form Comprehensive General Liability policies from the 1960s and 1970s required TIG to defend the Wisemans and noted that "the Duty to defend arises whenever a fair reading of the underlying Complaint, with its assertions of relevant general or specific factual and statutory bases of liability, does not expressly rule out the possibility of insurance coverage under the applicable policy terms." The decision also held that the general allegations of environmental contamination contained in the EPA's complaint were not excluded by a policy exclusion typically found in CGL policies during the 1960s and 1970s that precludes coverage unless pollution is "sudden and accidental."
The court stated that while TIG "would prefer the court to apply a standard by which it is excused from its duty to defend unless coverage is definitively or expressly within the language of the underlying complaint. . . . Defendant's preference is, however, not in accord with governing law."
The decision also recognized that representations made by the insurance industry to regulators are relevant and admissible in determining the meaning and applicability of the "sudden and accidental" pollution exclusion. Michael Goodstein, Shareholder at Hunsucker Goodstein, and counsel on the coverage case and in the underlying CERCLA action for Wiseman Oil stated that "we are pleased that the Wisemans are a step closer to receiving the policy benefits they paid for and deserve."
Hunsucker Goodstein represents clients in environmental and insurance coverage matters nationwide. The firm has offices in Washington, DC, California, Colorado, and Indiana.