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Removing Or Remediating Contamination Has Big Consequences For Your Pocketbook

What is the distinction between a "removal" action and a "remedial" action for an environmental cleanup?  While your question may be "Who cares?," the outcome of the question means millions to W.R. Grace, and if you're involved in a contaminated site, it may likewise have a significant effect on your pocketbook, too. 

The difference between the two types of action is largely regulatory, but those regulations have teeth:  a remedial action requires the USEPA to undertake a RI/FS (Remedial Investigation/Feasibility Study), solicit public comments and a host of other requirements designed to keep costs down.  On the other hand, a removal action allows the USEPA almost free reign (read that to mean spending freely from your pocketbook)  to address contamination that rises to the level of an emergency.  Typically, there are time (one year) and monetary limits ($12 million) on a removal action, but in certain instances, the USEPA can utter the "magic words" of "an imminent and substantial danger to the public health" and bypass those restrictions.

The Ninth Circuit decided this case yesterday, and it gives us a new standard to judge whether the USEPA's determination complies with CERCLA.  The Court inquired not only whether the decision to elect a removal action over a remediation action was proper, but also whether the subsequent actions were undertaken as a removal of the contamination.

Grace was not pleased with the outcome; the Court ruled against it on all counts.  Consequently, Grace is liable for the entire $52 million of removal actions taken so far, as well as all future costs incurred by the USEPA.  Reading the case will explain why both the USEPA and the Courts sided with the removal result, and certainly cleanup is needed.  Grace's point is well taken, even so:  by giving the USEPA the ability to spend Grace's money, the fox is watching the henhouse.



Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Friday, December 02, 2005 at 13:20. Comments Closed (0) |

Coast To Coast Internet Radio Program Tackles Abortion Parental Notification

The Legal Talk Network's Coast to Coast internet radio program, co-hosted with my fellow Law.com blogger, Robert Ambrogi, discuss the arguments before the Supreme Court in Ayotte v. Planned Parenthood with high stakes for the abortion issue. 

Our special guests include Professor Neil S. Siegel from Duke Law School, who recently completed a clerkship with Associate Justice Ruth Bader Ginsburg.  Professor Siegel is an Assistant Professor of Law and Political Science at Duke Law.  He recently completed a clerkship with Associate Justice Ruth Bader Ginsburg at the Supreme Court of the United States.  Professor Siegel teaches in constitutional law, federal courts, and related areas.  His other teaching and research interests include legislation/statutory interpretation, public law and economics, the jurisprudence/methodology of law and economics, criminal law, and criminal procedure.  He was recently featured in a Boston Globe article discussing the abortion notification law.

Our second guest is Mathew D. Staver, President and General Counsel of Liberty Counsel, which cooperates and coordinates its efforts with other religious liberty, pro-life and pro-family organizations. serves as lead counsel on Liberty Counsel's litigated cases.  He has argued in numerous state and federal courts across the country, including the U.S. Supreme Court.  Liberty Counsel cooperates and coordinates its efforts with other religious liberty, pro-life and pro-family organizations.  Liberty Counsel has represented many notable clients, including Focus on the Family and Dr. Jerry Falwell.



Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, December 01, 2005 at 20:00. Comments Closed (0) |

Black-and-Blue Berry May Suffer KO

The $450 million settlement agreement between RIM, the manufacturer of the infamous BlackBerry phone and NTP Inc., the small patent holding firm of McLean, Va., who own the patents used by the BlackBerry and won a $550 million judgment against RIM was just determined invalid, and MIPTC's prediction is one step closer to reality.  You may want to switch now.

The MSNBC article linked above notes that Blackberry users might switch to the Palm Treo 650 Smartphone, but if you're a power user on the road, you might want to look at the Samsung i730.  MIPTC owns no stock in either Verizon or Samsung (or Palm, for that matter).

You can always add it to your holiday wish list.



Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Wednesday, November 30, 2005 at 13:20. Comments Closed (0) |

Don't Drink That And Don't Eat That. Just Stick With Water. And Don't Forget To Exercise, Too.

Brace yourself:  class-action lawsuits against Coca-cola are apparently being drafted as you read this post.  No, it's not the caffeine, the carbonation, the aspartame or even the food coloring.

It's the calories.

Yep, we used to blame McDonald's for making us fat, but it turns out we were wrong.  It's those darn sugar-laden soft drinks, pop, tonic and soda, depending where you live (and don't forget to take the survey on that last link).  You can be sure that Coke is not the only target of this latest round of finger-pointing.  I don't know about you, but maybe it's time to point at our forks

The problem is childhood obesity, and the availability of soft drinks to children in school.  The attorney who's drafting those suits likens soft-drink dispensers to cigarette machines.  Although they put Diet Coke into their vending machines, the argument in return will likely have something to do with low-tar/nicotine cigarettes. 

In response to the pending lawsuits over the cause of childhood obesity due to the availability of vending machines that dispense high-calorie soft drinks, according the AP article linked above, the American Beverage Association counters and says the suits are "trying to paint a bull's-eye on a particular product and pass it off as a meaningful solution to a complicated problem."

I thought the solution was calories in, exercise out.  Maybe we need long physical education classes and more sports in school, and less time in the courtroom. 



Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, November 29, 2005 at 16:28. Comments Closed (0) |

BlawgWorld 2006 Capital Of Big Ideas Flying Off The Bookshelves

Your free copy of BlawgWorld 2006, Capital of Big Ideas is out, and features thoughts and posts from 51 influential legal blogs.  You can download your free copy from the link, in advance of the crowds at the bookstore.

Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, November 29, 2005 at 14:59. Comments Closed (0) |

Sampling Results From Rita And Katrina Reveal Contamination Across Four States

You may be wondering about the results of the environmental testing resulting from Hurricanes Katrina and Rita.  Well, the results are in, and they're not necessarily good.  The USEPA has posted sediment results here, with general information by spill here, and air sampling data here (levels shouldn't be over 40 micrograms per cubic meter for sensitive people and 65 for the general population), and here for Superfund sites. 

There is some good news in that the results are not widespread, but apparently confined to particular areas.  The bad news is that the areas span some four states. 

Here's what the USEPA found in the dirt in several areas:  "petroleum, as well as volatiles, semivolatiles, including polynuclear aromatic hydrocarbons (PAHs), pesticides and heavy metals including aluminum.  [The US]EPA ... believe[s] that exposures at these levels to emergency responders are not expected to cause adverse health effects as long as the proper protective equipment such as gloves and safety glasses is worn.   [US]EPA ... continue[s] to recommend that residents avoid all contact with sediment deposited by the flood water, where possible, due to potential concerns associated with long-term skin contact." 

For the air the USEPA "recognizes that the situation in New Orleans and along the Gulf Coast is unique."

Groundwater sampling was not much better near one Superfund site:  the USEPA "detected arsenic and chromium above their respective drinking water standards."

In other words, stay out of the dirt and don't let your kids play outside, and don't drink the water.  The USEPA's advice reminds me of the "duck and cover" campaign of the 50's to protect yourself from a nuclear explosion.

Rarely have we experienced these types of contaminants in residential areas on such a wide scale.  Decontamination will be difficult at best because of the pervasive nature of the sediment spread in areas affected by flooding.  Water cleanup can be handled in the normal manner (which will still be expensive), but for the time being, not even boiling water will solve the problem.  Air pollution will dissipate over time, but given the amount of contaminants in the topsoil, there will be some transference to the air as the dirt is disturbed for cleanup.  Most people won't even know about their exposure.

The most difficult aspect of the cleanup will be paying for it.  Hurricanes are an act of God, which is an exception to most of the federal toxic contamination statutes, so the USEPA won't be able to name business as potentially responsible parties where the contaminants were released from.  Insurance companies, as a consequence, will be likewise able to avoid liability.  The only source of funds for the cleanup, therefore, is your and my tax dollars.  When you look at these sampling results posted by the USEPA and realize that they're spread out over Louisiana, Texas, Mississippi and Alabama, the additional cost caused by the Hurricanes becomes mind-boggling.  The USEPA didn't offer any cost estimates, and I won't either, but I can imagine.



Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Monday, November 28, 2005 at 11:06. Comments Closed (1) |

The Interplay Of Politics, Money, Insurance, Courts And Pollution

Thanks to this opinion about the long-running pollution coverage dispute between Lockheed Corporation and Lloyd's of London, you may not have to consult the Rutter Group's insurance treatise on policy interpretation for some time; most of the basics are included in the court's decision.  While the ruling itself is no comfort to policyholders, we can all take solace in one thing:  Lockheed's policies were manuscripted, so there's very little application to everyday pollution insurance coverage, and the opinion contains no real shockers as far as coverage is concerned.  A manuscripted policy is not a standard form of insurance coverage available to the buying public - it's one that is crafted directly between the insurer and the insured.  A "unique, one-of-a-kind policy."

Then why blog about it?  For anyone concerned with insurance coverage (and that's virtually anyone who's had a lawsuit filed against them - and as you'll see below, it's equally as important to those that haven't) and understanding policy coverage, it's an excellent primer.  Plus, it give us a window into the past and how policy terms were interpreted back in the 1950s when the policies were first written for Lockheed. 

It's also a great signpost for litigating these types of claims against insurance companies, and with the increased enforcement actions by various governmental entities, it's a must read.

Perhaps most important, though, is the message squarely communicated in this opinion that the courts, insureds and insurers are sending to the executive branch of the government charged with enforcing state and federal laws.  The government has this habit of issuing administrative orders in an attempt to trigger cleanup, and in turn, insurance companies regularly deny claims for administrative enforcement.  Courts have consistently interpreted insurance policies not to provide coverage for these kind of administrative enforcement attempts.  The insurance companies have no complaint - they get to keep more premiums.

Why do courts regularly uphold the insurance companies' denial of the claim?   To constitute a "claim," many policies contain language that require a lawsuit to be filed instead of an administrative order.  Frankly, there's very little difference between the two, with the exception of adding court oversight to the process, which is primarily the insurance companies' objection:  without a lawsuit, their insured and the administrative agency can use the insurance companies' money to conduct a massive cleanup without any outside supervision.  When an agency sues in Court, both parties have to answer to the judge, not themselves, so the insurance companies believe they won't spend as much. 

The problem, however, arises from the denial of coverage itself.  Without insurance, there's very little money available to conduct a cleanup, so the agency is frustrated in its efforts to remove pollution from the environment.  At the same time, the agencies apparently don't want to give up the oversight of the effort to the court, so they're in a Catch-22.

While the act of an administrative agency filing a lawsuit against a company is a big step and causes both parties some consternation, there's one thing that is missing from the equation when the agency decides not to sue:  money



Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, November 27, 2005 at 12:17. Comments Closed (0) |

You Be The Judge: Approve A Courtroom Stabbing Reenactment?

You be the judge:  the prosecutor wants to stage a reenactment of how a wife stabbed her husband some 200 times.  The prosecutor proposes to bring in the blood-stained mattress, use a "husband" approximately the same height and size as the now-deceased husband, and "act" to show the jurors how she proposes the wife used the knife, straddling the husband on the mattress. 

In a Texas courtroom.

Defense objects on the basis that the State has no personal knowledge of how the murder happened, and cannot stage an accurate reenactment.  Defense also claims the reenactment is more prejudicial than probative.  In other words, the defense attorney believes that the jurors will be unduly influenced by, among other things, the blood-stained mattress and some two-hundred swings of the knife. 

How do you rule? 

Now that you have, let's add in just a few more facts for you:  Defendant Susan Wright admits she stabbed her husband, Jeff Wright, one hundred and ninety-three times.  She claims, however, that she started stabbing him in self-defense after her husband raped her.  The prosecutor claims that Susan instead planned the murder, seducing her husband and tying him to the bed, and proposed to stage the reenactment to demonstrate to the jurors how Ms. Wright tied her husband up before stabbing him. 

Here are some other tidbits you might want to consider before ruling, directly from the appellate opinion:  "On Saturday, January 18, 2003, officers from the Harris County Precinct 4 Constable's Office investigated a report of a dead body in the yard of the Wright home.  In the backyard, they discovered Jeff Wright's partially-buried body in a shallow hole next to a patio.  The officers also found a mattress, box springs, comforter and headboard in the backyard.  The mattress was soaked with blood. Inside the home, one wall of the master bedroom had been freshly painted and a piece of the carpet had been cut out; painting supplies, a box cutter, and scissors were found in the room.  Blood spatters were seen on the curtains and other items in the bedroom.  A receipt for two gallons of bleach, bleach-stained size 6 jeans, and a towel also were found."  The police found these alleged "cover-up" materials five days after Jeff was killed.

Not to be grisly (and you've been forewarned), but if you want more facts, click on that last link and scroll down to the second paragraph of the "Factual Background."  There are some other points, such as how he was tied up, that you'll want to know in considering your opinion.

Did I forget to mention that there was a recently-acquired $200,000 policy on Jeff's life?

The trial court ruled in favor of the demonstration, which was upheld by the court of appeal.  My bet, however, is that your initial reaction was to uphold the objections and deny the prosecutor's request to reenact the murder, but after you read more about how the murder was committed, you changed your mind. 

Should the facts have that kind of influence on the ruling?



Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Saturday, November 26, 2005 at 12:40. Comments Closed (3) |



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