This blog presents Metropolitan Engineering Consulting & Forensics (MEC&F) claim management and claim investigation analyses of some of the typical claims we handle
One killed, one injured in wreck on Hwy 3 in SE Houston
Tuesday, September 13, 2016 06:14PM HOUSTON (KTRK) -- One person has been killed and another injured in a major wreck on Highway 3 in southeast Houston.
The accident happened at 12:40pm on Highway 3 at FM 1959, just outside the entrance to Ellington Field.
Houston police say the 63-year-old driver of a red Chevrolet Silverado pickup truck is believed to have suffered a medical episode of some sort before losing control and slamming into a gray gray Volkswagen Golf, killing a 39-year-old woman who was driving it.
After the impact, the pickup swerved to the right and struck a guardrail. The Volkswagen spun out to the left and came to a stop in the driveway of a gas station.
The driver of the Volkswagen was pronounced dead at the scene. The driver of the Chevrolet was transported to Clear Lake Regional Hospital in critical condition. Their names have not been released.
Young children are at greater risk of eye damage from chemical burns than working-age adults, according to a new study. Household cleansers are most often to blame for eye injuries in 1- and 2-year-old children.
The researchers had assumed that young working adults were at greatest risk of chemical burns to the eye. This belief was commonly held in the eye care community because of the dangers posed to adults’ eyes by work. The new study found 1-year-olds are twice as likely to suffer eye burns as 24-year-olds. Young toddlers are 13 times more likely than 7-year-olds to suffer chemical burns to the eye.
The researchers analyzed four years of data from more than 900 emergency rooms around the United States. There were more than 144,000 emergency room visits related to chemical eye burns nationwide between 2010 and 2013, the study found. The injuries most often occurred at home.
Chemicals are especially dangerous to the eyes because they continue to burn into the eye after contact. They can cause permanent damage to the internal structures of the eye.
"These are terrible injuries; they occur most frequently in the smallest of children and they are entirely preventable," said study leader R. Sterling Haring, DO, MPH, of the Johns Hopkins University Bloomberg School of Public Health, who was quoted in a news release. "These children do not deal with chemicals on the job. They are injured largely because they get into chemicals such as household cleaners that are improperly stored."
To prevent chemical eye burns in young children, parents should keep household cleaners and other chemicals out of reach, Dr. Haring said. Use a lock for the cleaning supplies closet, or keep cleansers on a high shelf. "These injuries can occur in an instant," he said. "Making household chemicals and cleaners inaccessible to young children is the best way to put an end to this."
Spray bottles are a particular concern when it comes to chemical eye burns, Time reports. Young children find them intriguing and easy to operate.
If a child or adult gets chemicals in their eye, flush with plenty of water. An ophthalmologist should examine the eye as soon as possible.
While you are seeking medical help for any type of eye injury, the American Academy of Ophthalmology advises these first-aid tips:
DO NOT touch, rub or apply pressure to the eye.
DO NOT try to remove any object stuck in the eye. For small debris, lift the eye lid and ask the child to blink rapidly to see if tears will flush out the particle. If not, close the eye and seek treatment.
A construction worker fell from the top of Martin Hall at Baylor University earlier this month, fracturing his skull.
Posted: Monday, September 12, 2016 5:08 pm
By TOMMY WITHERSPOON twitherspoon@wacotrib.com
Occupational Safety and Health Administration officials have launched an investigation into an incident at Baylor University earlier this month in which a construction worker fell four stories through a refuse chute and fractured his skull.
Jose Vicente Campuzano, a 23-year-old construction worker from Waco, remains hospitalized in serious condition after his fall Sept. 1 from the top of Martin Hall at Baylor left him with life-threatening injuries.
Campuzano, who works for Northstar Demolition and Remediation Co., underwent surgery and doctors inserted a steel plate in his skull, said Campuzano’s attorney, Vuk Vujasinovic, of Houston.
Baylor spokeswoman Lori Fogleman said Baylor officials are aware of the incident. She deferred additional comment to officials at Whiting-Turner, the general contractor overseeing the renovation of the 62-year-old men’s dormitory at 1101 S. Fifth St.
Oscar Vasquez, a supervisor at Whiting-Turner in San Antonio, declined comment Monday.
Gary Thibodeaux, safety director at Northstar, did not return phone messages left at his Beaumont office Monday.
Juan J. Rodriguez, an OSHA public affairs director in Dallas, would confirm only that OSHA officials are investigating the incident in which Campuzano was injured.
“We cannot comment on anything further while the investigation is ongoing, but if violations of OSHA standards are found, OSHA can issue citations that could carry monetary penalties,” Rodriguez said.
Vujasinovic said he sent letters Monday to officials at Baylor and the two construction companies informing them that he represents Campuzano and asking them to preserve evidence at the scene and to allow him to visit the site as soon as possible.
“We are going to find out why Mr. Vicente fell four stories while working on the Martin Residential Hall refurbishment project, and hold accountable anyone who caused that to happen,” Vujasinovic said.
Campuzano was assisting in the removal of asbestos from Martin Hall when he fell four stories through the refuse chute to the ground, Vujasinovic said.
“At this time, we have no idea how or why this happened,” he said.
The building opened in 1954 and is named for 1900 Baylor graduate D.K. “Dock” Martin, who was appointed chairman of the Texas Highway Commission in the 1920s by then-Texas Gov. Pat Neff. The dorm is closed this year during the renovation project.
Vujasinovic represented the family of Jose Dario Suarez, a 55-year-old construction worker from Manor who drowned in 2014 while working on the pedestrian bridge over the Brazos River that leads to Baylor’s McLane Stadium.
In April, a Harris County jury awarded Suarez’s family $17.72 million, ruling that general contractor Austin Bridge and Road Co. was responsible for Suarez’s death.
Baylor was named as a defendant in the original pleadings, but 151st State District Judge Mike Engelhart dismissed the school from the lawsuit last year.
Suarez drowned Jan. 28, 2014, after a hydraulic lift he and another worker, Terry Watson, were strapped to rolled from a modular barge into the Brazos River as the men worked on the bridge.
Watson was able to free himself and swim to the surface, where he was pulled from the cold river.
FOR IMMEDIATE RELEASE Friday, September 9, 2016 Rutgers Organics Corp. agrees to $18 million cleanup and $500,000 restoration of injured natual resources at Nease Superfund site near Salem
The Department of Justice, U.S. Environmental Protection Agency (EPA), U.S. Department of Interior and the state of Ohio announced today that Rutgers Organics Corporation (Rutgers) has agreed to complete the cleanup of the Nease Chemical Superfund Site (site) near Salem, Ohio, estimated to cost $18.75 million. The agreement is memorialized in a consent decree lodged in federal court today in Youngstown, Ohio. Under the consent decree, Rutgers also agrees to restore injured natural resources at the site and nearby areas, at a cost of approximately $500,000. Further, Rutgers will reimburse federal and state agencies their past response and assessment costs of about $1 million.
“Today’s consent decree is a significant milestone in our efforts to make the environment cleaner and safer for the citizens of Salem and to protect and restore our valuable natural resources in that region” said Assistant Attorney General John C. Cruden for the Justice Department’s Environment and Natural Resources Division. “I want to thank our state partners, as well as recognize the cooperation of defendant Rutgers, for joining us on a path forward to clean up the contaminated Nease Site while preserving undeveloped land and protecting local drinking water sources.”
"This agreement will undo the damage done in the past while preserving creeks and the watershed for future generations," U.S. Attorney Carole S. Rendon said.
“This settlement will protect human health and the environment in northeast Ohio by reducing the risk of exposure to potentially harmful chemicals,” U.S. EPA Acting Regional Administrator Robert Kaplan said. “EPA looks forward to working with our federal and state partners to clean up the site and restore the Little Beaver Creek watershed.”
“The US Fish and Wildlife Service is looking forward to continuing the cleanup and restoration of injured natural resources at the Nease Chemical Site,” said Service Deputy Midwest Regional Director Charlie Wooley. “This settlement enables the Service and other trustees to work together to restore lost resources and protect valuable habitat in the Little Beaver Creek watershed.”
In a complaint filed today simultaneously with the lodging of the consent decree, the federal and state agencies allege that, between 1961 and 1973, portions of the site were owned and operated by a chemical manufacturing plant known as the Nease Chemical Company (Nease Chemical). Nease Chemical produced specialty products including pesticides such as Mirex, a probable human carcinogen no longer produced in the United States. Hazardous substances derived from these specialty products were detected in the soil, ground water, sediments and flood plains/wetlands in the area, as well as in the fish in the nearby main surface water body, the Middle Fork Little Beaver Creek. Rutgers acquired the assets of Nease Chemical, which ceased operations in 1973. Since 1988, Rutgers has cooperated with EPA to investigate and clean up the site.
Under the consent decree, Rutgers will complete EPA’s Operable Unit 2 remedy at the site by, among other things, capping soil and treating the ponds and ground water. Rutgers will also complete EPA’s Operable Unit 3 remedy at the Site, by, among other things, removing contaminated sediment and floodplain soil and replacing with clean material. The total cleanup, including long term operations and maintenance, is estimated to cost $18.75 million.
The contamination released from the chemical plant over time has injured natural resources in and around the site, including the underlying groundwater aquifers which have become unusable as a source of potable water. As part of the settlement, Rutgers will remove a low-head dam, known as the Lisbon Dam on the Middle Fork Little Beaver Creek, and restore adjacent streamside habitat. Those projects, estimated to cost up to $150,000, are expected to help establish a free-flowing stream with a healthy and diverse fish population.
Rutgers will also fund a $366,000 trust to conserve a variety of lands in the Little Beaver Creek watershed, especially lands that are subject to pressures from new development in the area, to help provide valuable habitat. The trust will also seek to conserve property to protect local drinking water source areas from further contamination.
Further, Rutgers will reimburse the federal and state agencies for their past response and assessment costs, totaling approximately $1 million, and agrees to fund all future oversight and assessment costs.
“This settlement will help protect the environment and Ohio families,” Ohio Attorney General Mike DeWine said. “It requires the cleanup of a long-contaminated site and the restoration and preservation of natural resources.”
“About 280-acres of habitat were contaminated by hazardous substances injuring surface and ground waters at the former Nease Chemical site,” according to Ohio EPA Director Craig W. Butler. “Healthy streams and waterways are critical to Ohio’s citizens and our economy. This consent decree is a welcome step forward after many years of work to bring the area stream habitats back to healthy, functioning waterways and protecting drinking water resources into the future.“
Today’s settlement, lodged with the U.S. District Court for the Northern District of Ohio, is subject to a 30-day public comment period following notification in the Federal Register and final approval by the court. To view the consent decree or to submit a comment, visit the department’s website: www.justice.gov/enrd/Consent_Decrees.html.
Samsung Electronics Galaxy Note 7 smartphones are displayed at the company's showroom in Seoul, South Korea, on Saturday, Sept. 10. (Ahn Young-joon / AP) Andrea PetersonThe Washington Post
Lithium ion batteries show up in all sort of tech these days, from your phone and laptop to airplanes and electric vehicles. But a voluntary recall of some 2.5 million Samsung Galaxy Note 7 smartphones after reports of battery explosions is raising new concerns about their safety.
Last week the Federal Aviation Authority warned passengers not to turn on or charge the devices during flights — or even put them in checked baggage. Some international airlines have placed similar restrictions on traveling with the smartphone. And the U.S. Consumer Product Safety Commission advised consumers "to stop charging or using the device."
Here's what you need to know about the lithium batteries that probably power a lot of your tech — and why they sometimes catch fire.
What are lithium ion batteries, and why are they so popular?
Lithium ion batteries are a bit different from the basic AA's you use to power your TV remote. They're rechargeable, often built directly into devices and rely on the chemical lithium as their primary fuel.
Lithium ion batteries are especially popular in devices such as laptops and phones, because they store energy super efficiently and are slow to lose their charge.
"You get a lot of oomph relative to older technologies that were the same size — often two to four times the voltage," explained Stephen Hackney, a professor of materials science and engineering at Michigan Tech University. Samsung Galaxy Note 7 too dangerous to use, U.S. agency says
How do they work?
Like pretty much all batteries, lithium ion batteries work by storing energy and releasing it through controlled chemical reactions. A lithium ion battery has two electrodes — places where electricity can enter or leave the battery — on opposite sides. One electrode, called the anode, is filled with negatively charged ions. The other electrode, called a cathode, contains positively charged ions and lithium. You can think of the anode and the cathode like the plus and minus signs you often see on batteries.
When you use a battery, the lithium moves over from the cathode to the anode — and when you charge it, the lithium moves back over to the cathode. There's a separator inside that keeps the anode and the cathode from touching because that can trigger mishaps such as fires and explosions.
So, what can cause the explosions?
The reason you can shove so much power into lithium ion batteries is that lithium basically "wants to react to almost anything" — which can lead to explosive results, Hackney said.
The FAA is warning passengers not to use the new Galaxy Note 7 during flights following numerous reports of the phones catching fire. Sept. 9, 2016. (CBS Miami)
But one of the most common reasons the batteries can explode is because of mistakes in the charging process, he said. Inside the devices that rely on the batteries there is software that tells them exactly how much the batteries should be charged and how fast. If those protocols are set incorrectly, it can destabilize some chemicals inside the battery and cause a chain reaction that researchers call a "thermal runaway" that may lead to fire or explosions.
Overheating can also cause explosions, which is why your phone probably pops up with an alert about needing to cool down when it gets too hot.
Another reason could be shoddy manufacturing or rough user treatment. If unwanted materials, like scraps of metal, accidentally end up inside the battery when it's being made, they can short a cell of the battery and set off a thermal runaway. So could dropping a device if the impact causes a break in the separator between the anode and cathode.
What happened with the Galaxy Note 7?
It seems like a manufacturing problem. The company reports at least 35 cases where the batteries combusted due to "a very rare manufacturing process error" in which the anode and cathode touched, the company said in a statement on its U.K. website.
The company decided to temporarily pull the phone off the market just two weeks after it was released and is offering replacements to people who already purchased the device.
How often do these types of problems occur?
The good news, according to Hackney, is they're pretty uncommon, especially among high-end devices, when manufacturers keep a close eye on production quality.
But there have been plenty of high-profile cases. For instance, back in 2006 Dell recalled more than 4 million laptop battery packs over combustion issues. In 2013, the Boeing 787 Dreamliner was grounded by the FAA after reports of fires related to the lithium ion batteries used in the planes. And half a million hoverboards, one of the hottest gifts of the last holiday season, were recalled this summer because of lithium ion battery explosions.
Are regulators looking into these batteries?
The government and international organizations already regulate lithium ion batteries in a lot of ways, which is probably one of the reasons we don't see more explosions. For example, the Department of Transportation has rules for how to safely ship the batteries.
Other U.S. regulations also call for batteries that end up in consumer goods to go through various safety tests, and the Consumer Product Safety Commission has overseen a lot of recalls involving products with lithium ion batteries that were deemed hazardous. The agency is working with Samsung on a formal Galaxy Note 7 recall in the United States.
By Ashley Ludwig (Patch Staff) - September 9, 2016 8:30 pm ET LAKE FOREST, CA — Six workers at an Irvine trash sorting facility became suddenly ill this morning with symptoms of coughing, sneezing, runny noses and watery eyes. The cause, later discovered to be from seven leaking tear gas canisters located at the facility.
Though Orange County Fire Authority Hazmat Technicians searched the Waste Management Facility's Sunset Environmental Transfer Station in Irvine to determine the cause, they were unable to "sniff out" the source, according to OCFA Capt. Larry Kurtz.
"Vapors must have dissipated before Hazmat Technicians got there, and that would have been a reason why sniffer equipment didn't pick up," Kurtz said.
The initial incident began at 8 a.m. this morning, when seven Sunset Environmental workers developed non-life threatening symptoms.
"Six of the workers were transported to area hospitals," OCFA Capt. Larry Kurtz said in interview. "The seventh didn't require transport."
The Hazmat technicians used specialized equipment to alert them if certain dangerous chemicals were found, however they were not able to locate the source of the workers' symptoms.
"Sometimes it takes longer than expected to solve calls, but all for a good reason," Kurtz said.
Twenty employees left the facility, according to Orange County Fire Authority Capt. Larry Kurtz, and a hazmat crew is on the scene. Six workers were transported: two to Hoag Hospital in Irvine, two to Kaiser in Irvine, and two to Coastal Community Hospital, according to Kurtz. The business is located on the 161o0 block of Construction Circle West.
The transfer station is one of two handled by Waste Management of Orange County and handles and sorts trash, recyclables, construction and demolition materials and green waste, according to the WM website.
Unacceptable items at the facility include used oil, batteries, paint, chemicals, medical waste or hazardous waste.
Hazmat Technicians from Station Four in Irvine, from the UCI Campus, is on the scene. It took an hour of planning before entry was made into the facility, as Kurtz originally explained.
"They monitored the area for safety, and planned how they dressed for entry," he said.
In this case, they wore full protective gear, but nothing was discovered that was harmful according to Kurtz. The Orange County Health Department discovered the canisters later in the day.
There is no word yet as to the condition of the workers who were sickened by this incident.
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Tear gas canisters send 6 Waste Management employees to hospital By Cole Rosengren | September 12, 2016
Leaking tear gas canisters at Waste Management’s Sunset Environmental Transfer Station in Irvine, CA caused six employees to be hospitalized on Friday, as reported by Lake Forest Patch. Seven workers reported symptoms of coughing, sneezing, runny noses and watery eyes. One did not require transport to a hospital. In total, 20 employees were evacuated from the facility. Firefighters and a hazmat team from Orange County arrived with specialized equipment to check for hazardous chemicals and eventually cleared the facility for work to resume.
By the time hazmat technicians entered the facility, about an hour after the incident, the gas had dissipated and they couldn't locate the containers. The Orange County Health Department discovered the seven offending canisters later in the day.
A driver for Allied Waste was also hospitalized for exposure to chemical smoke after a similar incident in California last month. A customer had placed pool chemicals out for collection which started smoking after they were placed in the truck.
This is yet another example of what can happen when customers don't pay attention to disposal regulations. As reported by Patch, this particular Waste Management facility does not accept oil, batteries, paint, chemicals, medical waste or hazardous waste. Safety is already enough of a concern for workers that they shouldn't have to worry about dangerous items coming from careless customers. Therefore, a push for more education should continue to be a priority among industry leaders.
The severity of claims lodged by the PV industry has risen sharply, says GCube
GCube
By Christopher Hopson in London
Tuesday, September 13 2016
Updated: Tuesday, September 13 2016
The impact of extreme weather conditions on the global solar PV industry has contributed to an 87% increase in the average severity of claims over the past five years, renewables underwriter GCube revealed.
Its Cell, Interrupted study finds that weather-related losses are one of the most common causes of solar PV claims worldwide, accounting for just under half of all PV claims in North America, and over a quarter in the rest of the world.
GCube says the solar PV industry will need to invest time and resources in order to increase its tolerance to risk, particularly for losses resulting from extreme weather, which can include tornadoes, floods, windstorm and hail damage.
Additional factors to this risk increase include electrical failure, lightning strikes and the theft of components including copper wire. The latter is a particular concern for operators in Southern Europe, and theft-related claims account for over a quarter of the total outside of North America.
While the study says an increase in the total number and cost of claims is to be expected as the PV market expands, this overall increase in severity highlights a growing need for knowledge sharing and collaboration among project owners, developers and risk, insurance and claims managers.
Cell, Interrupted – produced exclusively for the firm’s international community of insured clients and supporting brokers – identifies the challenges faced by solar PV developers and owners around the world, the causes and cost of solar PV claims, and discusses how they can best be mitigated.
Annual growth in the solar market consistently exceeds 25%, with falling technology costs, and sufficient scale and innovation driving development in new markets, says GCube.
However, if the industry is to continue to develop at this rate – particularly in an age of declining subsidies – it will need to more adequately prepare for sudden and unforeseen risks, particularly as the market increasingly moves into areas prone to natural catastrophe and extreme weather conditions.
The study warns that a failure to do so will be to the detriment of investors and project stakeholders.
Jatin Sharma, head of business development at GCube and author of the report, says that despite its relative infancy, the solar PV industry has already gained a number of scars.
“It has faced bankruptcy and consolidation. Its investors have been left in the wake of regulatory uncertainty, including concerns that industrial policy will undermine a cost competitive, but ‘foreign’ supply chain.
“And climate change, its once greatest ally, has demonstrated how vulnerable utility-scale and residential solar PV are to the increasing frequency and severity of natural perils such as floods, windstorms and tornadoes.”
Sharma says an industry preoccupied with growth, cost reduction and innovation will struggle to brace itself for the continuing turmoil.
“Until there is greater awareness among the investment community that risk and asset managers need more resources to adequately prepare for the sudden and unforeseen, the industry will continue to be caught off guard.
“As we’ve recently seen with Californian wildfires, extreme weather-related conditions and their aftermath can pose a very real threat to solar energy assets and surrounding infrastructure, operating in increasingly testing environments worldwide.”
In summary Cell, Interrupted, which draws on a blend of GCube’s proprietary claims data, technical expertise and publicly available market information, says the solar industry will continue to exceed analysts growth expectations as it proliferates.
“Falling costs, sufficient scale and innovation in energy storage should result in further penetration in established markets while overcoming investment barriers and weak grid issues in new markets.
“But if the industry is to adapt and develop to reduced margins in a zero subsidy environment, it will need to invest time and resources to increase its tolerance to risk, notably adapting and responding to electrical malfunction and natural peril losses,” the study concludes.
The study also contains input and contributions from DNV GL, Lightsource, OST Energy, Quintas Energy, RES Group, Dulas and Renewable Energy Loss Adjusters.
Fairfax County settles underground storage tank violations with EPA 09/13/2016 Contact Information: Roy Seneca (seneca.roy@epa.gov) (215) 814-5567
PHILADELPHIA (September 13, 2016) – Fairfax County, Va. has agreed to pay a $64,450 penalty for underground storage tank violations at 15 county locations where facilities stored gasoline, diesel fuel or motor oil. The settlement addresses compliance with environmental regulations that help protect communities and the environment from exposure to oil or potentially harmful chemicals.
At the facilities, the county did not test the equipment that was being used to detect leaks from pressurized underground lines that were connected to the storage tanks. In addition, at two facilities, the county failed to annually test its tank lines for tightness. None of the violations included any type of release or leak from the tanks or pipes. The county has corrected all violations.
With millions of gallons of petroleum products and hazardous substances stored in underground storage tanks throughout the country, leaking tanks are a major source of soil and groundwater contamination. EPA and state regulations are designed to reduce the risk of underground leaks and to promptly detect and properly address leaks thus minimizing environmental harm and avoiding the costs of major cleanups.
The settlement penalty reflects the county’s cooperation with EPA in correcting the violations. For more information on underground storage tanks, go to: http://www.epa.gov/oust/index.htm .
U.S. EPA Requires L.A. Oil Storage Facility to Reduce Risk of Spills 09/13/2016 Contact Information: Soledad Calvino (calvino.maria@epa.gov) 415-972-3512
SAN FRANCISCO – Today, the U.S. Environmental Protection Agency reached a settlement with General Petroleum Corporation to resolve federal Clean Water Act violations at its petroleum storage facility located on Terminal Island in the Port of Los Angeles, Calif. The company will pay a $15,500 penalty as part of the agreement, and has already come into compliance with the law.
"Spill prevention is a key planning element for oil storage facilities, especially those located near California’s precious waterways,” said Kathleen Johnson, Director of the Enforcement Division in EPA’s Pacific Southwest Region. “To reduce the risk to San Pedro Bay, we have been working with our state and local partners to ensure the deficiencies were all addressed.”
Today’s action is a result of a joint inspection conducted by EPA and representatives of the Los Angeles Fire Department in April 2015. The investigation found that General Petroleum had violated regulations requiring onshore oil production facilities at risk of discharging oil to nearby waterways to prepare and implement a Spill Prevention, Control, and Countermeasure (SPCC) plan.
“This enforcement action, taken in partnership with the U.S. EPA, was needed to not only protect the City’s environment but to also protect the health and safety of the City’s residents,” said LAFD Fire Marshal, Chief John Vidovich, who oversees the program responsible for inspecting and enforcing environmental compliance at this type of facility.
General Petroleum is located within the Port of Los Angeles adjacent to the Los Angeles Harbor. The company failed to provide adequate secondary containment around tanks to keep spilled oil from leaving the site and entering surrounding waters. General Petroleum also failed to amend and re-certify its SPCC plan after making significant physical changes to its facility. In addition, the company did not maintain and implement an SPCC plan that discusses discharge or drainage controls, and procedures for the control of a potential discharge.
The goal of EPA's SPCC regulation is to prevent oil from reaching navigable waters and adjoining shorelines, and to plan for containment of oil discharges in the event of a spill. The regulation requires onshore oil storage facilities to develop and implement SPCC Plans and to establish procedures, methods, and equipment to prevent spills, and to respond properly if a spill occurs.
EPA Fines Total Petroleum $345,000 for Industrial Stormwater Discharge Violations Company to Support Artificial Reefs in Condado Lagoon in San Juan 09/13/2016 Contact Information: John Martin (martin.johnj@epa.gov) 212-637-3662
(New York, N.Y. – September 13, 2016) The U.S. Environmental Protection Agency today announced that it has reached an agreement with Total Petroleum Puerto Rico Corporation (“Total Petroleum”) to settle the company’s alleged violations of requirements to control pollution from stormwater discharges at its Guaynabo Bulk Fuels Terminal. Under the agreement, Total Petroleum is required to comply with the Clean Water Act’s stormwater discharge requirements associated with industrial activities and will pay a $345,000 penalty. The company will also invest $40,000 to construct and install approximately 30 artificial reef modules in the Condado Lagoon, which was recently designated as a nature reserve.
The Clean Water Act requires that certain industrial facilities apply for and obtain National Pollutant Discharge Elimination System permits to control the discharge of pollutants carried out by stormwater runoff into nearby water bodies. These facilities must develop and implement a Storm Water Pollution Prevention Plan that details the best management practices that the company will follow to prevent stormwater runoff from washing harmful pollutants into local water bodies.
Without adequate on-site controls, stormwater runoff can flow directly to the nearest water body and can cause water quality damage such as siltation of rivers, beach closings, fishing restrictions, and habitat degradation. As stormwater flows over these facilities, it can pick up pollutants, including dirt or sediments, nutrients, trash, chemicals, and oils. Of particular concern is the uncontrolled runoff that can harm or kill fish and wildlife due to changes in water quality, hydrology, and other factors.
The EPA complaint alleges that Total Petroleum violated numerous stormwater requirements at its Guaynabo Bulk Fuels Terminal, such as failing to: implement best management practices; implement a Storm Water Pollution Prevention Plan; monitor and report discharge data of the facility’s discharges of pollutants; and obtain the appropriate stormwater discharge permit associated with industrial activity.
In addition to agreeing to come into compliance with the Clean Water Act and paying a penalty, Total Petroleum has also agreed to construct a new stormwater collection and discharge system at the Guaynabo Terminal, as well as submit an updated stormwater permit application for the facility. The company will also construct the third and final phase of the Condado Lagoon TaÃno Coral Trail and Reef Enhancement Project, which is built in the northeastern reach of the Condado Lagoon’s outlet to the Atlantic Ocean. Total Petroleum will install approximately 30 artificial reef modules to provide artificial habitats for reef species in the San Juan Bay Estuary. The purpose of this project is to enhance, protect, and promote marine life diversity in the Estuary System, which is designated as an estuary of national importance and is part of the EPA’s National Estuaries Program. Total Petroleum will invest a minimum of $40,000 for this project. The project, which benefits the environment and the community, is not required to bring the company into compliance.
The proposed consent decree has been lodged in the U.S. District Court for the District of Puerto Rico, and is subject to a 30-day public comment period and final court approval. A copy is available on the Department of Justice website at: http://justice.gov/enrd/Consent_Decrees.html.
For more information about the requirements of the Clean Water Act and how the EPA protects the nation's water, visit http://water.epa.gov.
Follow EPA Region 2 on Twitter at http://twitter.com/eparegion2 and Facebook at http://facebook.com/eparegion.
A water main break has shut down a SEPTA trolley line in West Philadelphia.
The break was reported before 1:30 p.m. Tuesday at 60th Street and Lansdowne Avenue.
Images from the scene showed several large sections of roadway which had buckled.
SEPTA has shut down its Route 10 trolley service.
Passengers are instead being bused between 33rd and Market streets and 63rd and Malvern streets.
The summer-time uncommon water main breaks have become more common in the once great city of Philadelphia. Old, aging and deteriorating infrastructure from water to gas pipes to sewer pipes breaks down often now. The cost to rehabilitate is enormous, and that is why no government will do it unless things get to be unbearable for the citizens.
FIREFIGHTER FALLs DOWN STAIRS AT NJ APARTMENT FIRE
September 13, 2016
Thanks to Statter911.com for posting this video from william rashak taken during a 2-alarm fire reported around 2:00 p.m. yesterday (Monday) at the Society Hill Development on Woodward Lane in Bernards Township, New Jersey (Somerset County).
AT :58 into the video a firefighter on the top level falls down a half flight of stairs. Rashak wrote in his description, “Firefighters were pushed down the stairs by a roof collapse early in the fire.” No report of serious injuries to firefighters.
Firefighting foam under fire for link to water contamination, injuries Foam caused shutdown of drinking wells at Wright-Patterson and will no longer be used at the base. Defense Department has launched a nationwide investigation.
By Barrie Barber - Staff Writer
Posted: 6:54 p.m. Sunday, Sept. 11, 2016
WRIGHT-PATTERSON AIR FORCE BASE — A fire suppressant foam linked to the shutdown of two drinking water wells at Wright-Patterson Air Force Base injured a firefighter during a training incident and the Defense Department has launched an investigation to determine how widespread the problem is across the nation.
The firefighter, Michael R. Strouse, was injured when piping inside a fire cab ruptured and shot the chemical at high pressure into his eyes, he said.
“My face was chemically burned and my eyes were really blood shot and they were sore,” Strouse said in an interview with this newspaper. “Then the next day I was actually taken off the job.”
Strouse, 38, a veteran firefighter for more than a decade at Wright-Patterson, was reassigned to administrative duties. But his condition gradually worsened, he said. He’s now been off work for more than three months.
The injury to Strouse comes as concerns over aqueous film forming foam, or AFFF, have soared in recent years. Wright-Patterson Air Force Base firefighter Michael R. Strouse, 38, has worked there for more than decade. AFFF has been used in training by the military since the 1970s and is considered more effective than water to extinguish petroleum-based fires.
But it is suspected of causing groundwater contamination – not just here but in communities near Peterson Air Force Base in Colorado, where some drinking wells were shut down this year.
The Defense Department has launched an investigation to determine how widespread the problem is at hundreds of military bases. A preliminary list is expected by early next year, Pentagon spokesman Lt. Col. James B. Brindle said. Bill Lackey Members of the Wright Patterson fire department spray foam on a tractor trailer and car after they collided head-on and burst
The wells in Colorado had levels of perfluorinated compounds found in AFFF that exceed U.S. EPA levels – in one case 20 times the threshold, according to media reports. At issue are the compounds in AFFF known as perfluorooctane sulfonic acid (PFOS) and perfluoroctanoic acid (PFOA), which some researchers suggest have been linked to cancer and other health ailments.
At Wright-Patterson the Air Force says the old foam will be incinerated and replaced with an environmentally safer foam as part of an Air Force-wide $29 million effort to rid bases worldwide of the potentially carcinogenic compound. The replacement foam is free of PFOS and has little to no PFOA, according to the military.
The drinking water at Wright-Patterson is now safe to drink, according to base officials. Aqueous Film-Forming Foam, or AFFF, at a hangar at Mountain Home Air Force Base, Idaho. Photo: U.S. Air Force
The Air Force says AFFF will no longer be used in training exercises. If used on an emergency basis it will be treated as a hazardous material, according to the Air Force.
The old foam was sprayed for more than two decades in exercises at Wright-Patterson, according to base spokeswoman Marie Vanover.
“There is approximately 14,000 gallons of AFFF in the inventory and we will ensure it is disposed of in a proper and safe manner,” she said in an email.
However, the union that represents Wright-Patt firefighters, concerned about its members’ exposure to the chemical, balked at the base’s initial plan to use firefighters to remove the foam from trucks and storage.
‘Unnecessary exposure’
Wright-Patterson firefighters’ concerns arose when Strouse was injured on the job.
Steven McKee, secretary/treasurer with the International Association of Firefighters Local F88, said the union had expected to “fervently battle” initial plans to use firefighters to remove it from trucks and storage.
“Obviously, handling it is an issue,” said McKee, also a firefighter.
Base officials have since said they would use contractors for the foam cleanup at a cost of $4,000. Wright-Patt has more than 75 firefighters and about 15 fire trucks.
“It’s unnecessary exposure for us,” said Brian L. Grubb, president of the International Association of Fire Fighters Local F-88, which represents Wright-Patterson firefighters.
The issue of who will remove AFFF is under contention at other Air Force Materiel Command bases in Georgia, Oklahoma, Massachusetts and California, union leaders say. The IAFF says it asked to negotiate the removal at those bases but was rebuffed by senior Air Force leaders who said refilling AFFF was a long-standing firefighter responsibility.
“We’re concerned about any exposures, especially if we have another catastrophic failure” in a fire truck, said Roy Colbrunn, an IAFF district field service representative and former Wright-Patterson firefighter. The process would require firefighters to drain and rinse trucks three times.
“This is a hazardous material we feel should be remediated by a specialized trained workforce, not the firefighters,” he said.
AFMC spokesman Derek Kaufman said each base has the authority to make its own decision on the issue. Historically, firefighters have refilled AFFF in trucks and equipment, he said in an email.
Firefighters are trained to handle AFFF and many are certified hazardous materials technicians “trained and paid to handle the most hazardous chemicals the Air Force deals with,” Kaufman wrote.
He said the Air Force School of Aerospace Medicine evaluated the health risk and concluded the process of draining, rising and refilling AFFF “presented a low health risk to the workers, who only require limited personal protective clothing.”
Wright-Patt complaint filed
Strouse and the two firefighters in the truck cab with him last October have shown “elevated levels” of perfluorinated chemicals in their blood since the incident, Grubb wrote in a complaint to the National Institute for Occupational Safety and Health Centers for Disease Control.
A full NIOSH investigation on the union complaint could take a year. The agency sent investigators to Wright-Patterson within the past two weeks.
“What I hope will come from it will be changes in the way the Air Force investigates accidents,” Grubb said.
In preliminary recommendations released Friday, NIOSH investigators told Wright-Patterson that firefighting employees should wear protective clothing and equipment, such as a face shield and closed toe shoes, when transferring AFFF; flush exposed skin with large amounts of water; and update operating procedures on safe work practices and protective equipment.
The three-decade-old fire truck Strouse was injured in was pulled out of service Sept. 1 immediately after the NIOSH inspectors visit and fire chiefs removed the foam out of the vehicle, Grubb said.
Vanover said a safety investigation into the cause of the incident that led to Strouse’s injury was inconclusive. “There is no history that the truck had any maintenance issues,” she said in a statement.
Drinking well shutdown
The city of Dayton quietly shut down seven water production wells at Huffman Dam near the boundary of the base fence line in June in what a city environmental manager called a “precautionary measure,” but the city says it has not detected the suspected compounds in the production wells or the water distribution system that serves 400,000 customers. The wells remain closed.
The Ohio Environmental Protection Agency extended emergency orders for 90 days shutting down the two water production wells in Area A at Wright-Patterson where water contamination was first detected and required monthly sampling.
Wright-Patterson and other military bases aren’t alone. Highly fluorinated chemicals have contaminated drinking water supplies of more than 6 million Americans, at military bases, airports, and industrial sites, according to estimates of researchers at Harvard University and the University of California at Berkeley and elsewhere.
In July, the Air Force announced plans to spend $4.3 million to treat wells in Colorado communities near Peterson Air Force Base “at which preliminary indications are that the service may be a potentially responsible party for the PFOA/PFOS contamination,” Air Force Civil Engineer Center spokesman Mark D. Kinkade said in a statement to this newspaper.
Health risks
Studies have linked highly fluorinated chemicals with kidney and testicular cancer, high cholesterol, obesity, ulcerative colitis, thyroid disruption, lower birth weight and size, liver malfunction and hormone changes, according to the independent, non-profit Green Science Policy Institute in Berkeley, Calif.
But a Centers for Disease Control spokesperson said “more research is needed to confirm or rule out possible links between health effects of potential concern and exposure” to perfluoroalkyl substances (PFAS). The substances are found in many products, from pizza boxes to cell phones, researchers say.
Some, but not all studies have shown certain PFAS may increase the risk of cancer, cholesterol, and impact growth, learning and behavior in children and fetuses, decrease fertility and adversely affect the immune system, according to CDC spokesperson Taka L. Allende.
The CDC is in the midst of a study on the potential health impact of “exposure to these compounds from contaminated drinking water,” Allende said in an email.
The U.S. Environmental Protection Agency lowered the lifetime exposure guidelines for humans to 70 parts per trillion, which prompted the shut down in May of two drinking wells at Wright-Patterson and a drinking water advisory – since lifted — for pregnant women and infants.
EPA emergency orders extended
Ohio EPA Director Craig W. Butler extended emergency orders for 90 days in late August to shut down the two drinking water wells in Area A and required Wright-Patterson officials to sample wells monthly to detect potential contamination.
“While none of the production wells are currently above the health advisory level the elevated presence of PFOA/PFOS requires continued monitoring to ensure that drinking water above the health advisory level is not put into distribution,” Butler said in an Aug. 23 directive to base commander Col. Bradley W. McDonald.
The Ohio EPA pressed Wright-Patterson officials to expand a groundwater monitoring network to fill in “data gaps” to determine where a plume of contamination could head. Wright-Patterson plans to add 50 groundwater monitoring wells in coming weeks and, for the first time, sample the Mad River to find how far contamination has spread.
The Air Force expects to investigate nearly 200 active duty, Air National Guard and closed bases where the foam may have been sprayed. The foam was used widely in training exercises in the military since the 1970s.
In a statement, a Pentagon spokesman said the U.S. military “is committed to working closely with regulators, communities, and other stakeholders to protect human health and take action so that DoD continues to provide safe drinking water to its servicemen and their families.”
No federal enforceable standards
Cincinnati attorney Robert Bilott said he contacted the U.S. EPA in 2001 to tell the agency of the health threats the compounds posed in drinking water. He said he learned of the risks while involved in litigation against chemical manufacturer DuPont in West Virginia.
“There is still no federal enforceable standard for these chemicals in drinking water,” he said.
U.S. EPA set threshold guidelines — but not enforceable standards — in May 2016, he added.
He questioned if any threshold level was safe.
“This chemical will build up in human blood when you’re exposed to even the tiniest amounts over time,” he said.
When contacted for a response, an agency spokeswoman said U.S. EPA’s review into the potential risks associated with PFOA began in the 1990s.
An environmental researcher said the “regrettable substitutes” to replace AFFF are “equally persistent and can be more difficult to filter out of drinking water.”
“There are non-fluorinated firefighting foams that should be considered for use instead,” Arlene Blum, a study co-author and executive director of the independent, non-profit Green Sciences Policy Institute in Berkley, Calif., said in an email.
Firefighter speaks out
Strouse said he wants to spread the message of what happened to him to avoid it happening to another firefighter.
Since the incident, his eyes burn painfully frequently, leaving him unable to drive, he said.
“I no longer drive a car anymore,” said Strouse, who once drove fire trucks. “My wife carts me around.”
Inside and outdoors, he wears sunglasses to shield his eyes from light.
Doctors diagnosed him with dry eye disease, and rosacea, a skin inflammation condition, and pingueculae, or small yellow bumps on his eyes, he said and medical documents show.
A physician’s evaluation showed Strouse experienced exposure to AFFF to his eyes, ears and mucus membranes. The health record also said lab tests showed the “core chemicals contained in AFFF were elevated within his serum.”
A July 2016 medical report, signed by a doctor, said Strouse was “unable to perform the duties of the job” because of his medical condition.
Three months prior to the incident, Strouse said he passed a job-related health exam “with flying colors.”
A medical doctor has not conclusively linked the health issues to the exposure to foam, but medical authorities have tied the health problems to the incident in the fire truck cab, Strouse said.
“Basically, what happened was when the chemical shot in my eyes … it damaged the ability of my eyes to tear and keep lubricated,” he said.
Strouse’s wife, Terri, has watched his health worsen.
“I’m very angry about this,” she said. “This could have been avoided.”
“I just wish his quality of life could be better instead of always suffering,” she said.
This newspaper interviewed experts, reviewed medical records and Ohio Environmental Protection Agency documents, and sought answers about an the injury of a Wright-Patterson firefighter in a training incident, and the ongoing concern of firefighting foam linked to groundwater contamination at Wright-Patterson Air Force Base.
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EPA Asks Wright-Patterson to Speed Up Clean Up of Drinking Water Wells Wright-Patterson Air Force Base The Dayton Daily News | Jun 06, 2016 | by Barrie Barber
A state agency has directed Wright-Patterson to expedite the removal of contamination in two drinking water wells out of concern a plume of contamination might one day reach the city of Dayton's water production wells near Huffman Dam.
In a June 2 directive, Ohio EPA director Craig W. Butler told 88th Air Base Wing commander Col. John M. Devillier of "additional work needed" to prevent perfluoroalkyl substances detected in groundwater from contaminating additional drinking water wells at Wright-Patterson and potentially reaching the city of Dayton's seven drinking water production wells at Huffman Dam.
The two contaminated drinking wells in Area A at Wright-Patterson taken offline in recent days pose "a continued threat to the public health from the potential plume emanation to the city of Dayton well field," the EPA letter said.
Ohio EPA directed the base to submit water testing samples pulled from the area of concern within a week. If additional contamination is found, the EPA directed further actions to determine the extent of and to prevent further contamination.
Water samples at two wells in Area A at Wright Patterson showed levels of perfluorooctanesulfonic acid (PFOS) and perflurooctaonic acid (PFOA) above a recently set U.S. EPA threshold of 70 parts per trillion, Ohio EPA said. The finding led to a drinking water advisory last month for pregnant or lactating women and bottle-fed infants. Exposure to the substances have been linked to possible adverse health effects in infants, but adults -- other than those listed in the advisory --can continue to drink tap water, according to the EPA.
The city of Dayton has not detected PFOS or PFOA contaminants in Huffman Dam drinking production wells nor in its water distribution system, according to Michele Simmons, the city's environmental director in the water department.
"This is not an imminent threat to our well field," she said Friday. "This is something we want to plan ... to prevent from entering our well field."
Since late May, Wright-Patterson has offered bottled water to those affected on base and to Wright-Patterson Medical Center patients.
The chemical agent PFOS was used in military firefighting suppressant foam.
The base volunatrily closed one well in April and shut the second May 26. The EPA issued an emergency closure order last week when Wright-Patterson did not immediately close the second well within days of initial notification while base civil engineers evaluated the impact on water pressure needs.
The two contaminated wells are more than two miles to the nearest city production well at Huffman Dam, Simmons said. Determining location
Ohio EPA has asked Wright-Patterson to determine if the plume is moving and where it might be headed, said Heidi Griesmer, a state EPA spokeswoman.
"The hydrology would indicate it would be moving toward Dayton but we need actual data," Griesmer said. "We're asking them to put that on a fast track so they can look at that now and get information as soon as possible."
The military base does not have data to determine the direction of any potential plume, Wright-Patterson spokeswoman Marie Vanover said in an email Friday. However, she added, a "contract is in place and a work plan is being developed that will be submitted to the Ohio EPA and the U.S. EPA in August" to find answers.
The base had already planned to test boundary sentry wells and monitoring wells downstream that detect contamination in groundwater "as expeditiously as possible" to determine if contaminants had entered the area of concern, she said.
Wright-Patterson planned to install a temporary water filtering system for the two contaminated wells while it investigates a long-term solution, she said. It also has started monthly sampling of four drinking wells still in operation in Area A and at the brick housing area, Child Development Center in Area A and in a west ramp location near the 445th Airlift Wing.
The city will work with the Ohio EPA to determine what steps to take in response to its findings, Simmons said. "We work very closely with EPA to monitor everything coming downstream from Wright-Patterson," she said.
Dayton and Wright-Patterson have cooperated for years to protect the city's water supply, she said.
The city samples the seven drinking wells near Huffman Dam annually, but plans to increase how often it tests once it determines EPA findings of Wright-Patterson's upcoming tests, she said. The city's 18 to 20 groundwater monitoring wells in the area, meant to detect contamination prior to reaching a drinking production well, are sampled twice a year. Water in the distribution system to consumers is tested daily during the work week, she said.
The base also has a network of monitoring wells, some of which it had EPA approval to shut down in recent years. In its directive Friday, EPA called on Wright-Patterson to evaluate its monitoring well network and add additional wells if needed if contamination is detected.
Deemed an EPA Superfund site, base environmental officials have worked for years and the Air Force has spent millions of dollars to clean up contaminated sites on the more than 8,100-acre base.
The Ohio EPA issued the June 2 directive under a decades-old administrative order reached with Wright-Patterson in 1988.
Volume 94 Issue 36 | p. 8 | News of The Week Issue Date: September 12, 2016
Air-pollution-derived magnetic nanoparticles found in human brains Magnetite particles, which can be inhaled, may play a role in Alzheimer’s By Ryan Cross
This electron microscopy image shows magnetite particles extracted from a human brain sample. Credit: PNAS
Magnetite, a magnetic iron oxide mineral, is showing up in a place it doesn’t belong: the brain.
Researchers at the University of Lancaster found unexpectedly high levels of magnetite nanoparticles in human brain tissue they were examining with electron microscopy (Proc. Natl. Acad. Sci. USA 2016, DOI: 10.1073/pnas.1605941113). Barbara A. Maher, one of the team leaders, says that’s concerning because magnetite could be toxic to the brain, generating harmful reactive oxygen species that have been linked to Alzheimer’s disease.
Scientists first discovered magnetite particles in human brains more than two decades ago that had structures suggesting a biological origin. In contrast, the vast majority of particles found in the new study resemble magnetite from airborne pollutants.
Common sources of magnetite particles include iron impurities in burning fuel—especially diesel—and indoor sources such as printer toners, and leaky stoves.
Another recent investigation found magnetite particles in amyloid plaques, the hallmark peptide aggregates in Alzheimer’s brains (Sci. Rep. 2016, DOI: 10.1038/srep24873). But Maher and coworkers show that magnetite buildup is not necessarily linked to increasing age, as is the case for Alzheimer’s. The brain with the most magnetite was from a 32-year-old who lived in Mexico City. “His brain was absolutely, incredibly, strongly magnetic,” Maher says.
Jon Dobson, a biomedical engineer at the University of Florida who has studied magnetite in Alzheimer’s brains, says: “It is important to remember that a causal link between magnetite—or other iron compounds—and Alzheimer’s has not been unequivocally established.”
Fire destroyed a strip mall in Chicago's East Garfield Park neighborhood. Investigators are looking into how the fire started. (WLS)
Liz Nagy Updated 1 hr 9 mins ago CHICAGO (WLS) -- Firefighters put out hot spots Tuesday morning at the scene of a strip mall fire on Chicago's West Side that destroyed several businesses Monday night.
Crews raced to the row of businesses, which included a Family Dollar, a beauty supply store and a J&J Fish restaurant, in the 400-block of South Kedzie Avenue in the city's East Garfield Park neighborhood around 7:15 p.m. Monday. When they arrived, the stores were engulfed by flames.
Due to the intensity of the fire, more than 150 firefighters were called to the scene. They tried to get inside, but were forced back out.
"When they realized it was lightweight construction and the fire is aggressively gaining momentum, they back out. Lightweight construction will fail very quickly," said Michael Carbone, Assistant Fire Chief, Chicago Fire Department.
The fire was struck out by around 10 p.m. Two firefighters were hospitalized for smoke inhalation. They are expected to be OK.
The stores are black and gutted. Portions of them smoldered overnight. Officials said it is unlikely anything will be salvageable.
"This is a neighborhood plaza and provided more for the neighbors than anyone else. It's a catastrophe," said Fred Akkawi, who owned a business in the strip mall.
Investigators are looking into how the fire started.
"It could have been a lot of things. It could have been the fire load inside the occupancy. You've got a lot of aerosol cans, you've got a lot of chemicals in there and that could have fueled the fire. There's a lot of paper products and a lot of product, a lot of liquid products and a lot of flammable products there," Carbone said.
Nearly three years after Winter Storm Atlas blanketed western South Dakota and two months after the state Supreme Court ruled that a Quinn couple was entitled to compensation from their insurance company for nearly 100 yearling heifers that died in the blizzard, dozens of ranchers are reportedly revisiting their insurance policies to determine if they, too, are eligible for claims previously denied.
The Atlas storm killed thousands of livestock with heavy rain followed by snow from Oct. 3 to Oct. 5, 2013, in western South Dakota.
In late July, the South Dakota Supreme Court overturned an earlier decision by a lower court that ruled against Richard and Larayna Papousek, who run a crop and livestock ranch 61 miles east of Rapid City. A veterinarian who had examined some of the couple’s dead cattle attributed the cause of death to drowning.
Nonetheless, the circuit court had ruled in favor of De Smet Farm Mutual Insurance Co. of South Dakota, finding that the Papouseks’ policy, which specifically covered drowning, didn’t cover their loss because none of the 93 heifers was found in water.
But in reversing the lower court, justices noted: “Papouseks point out, however, that reasonable people understand that the hallmark of drowning is not the presence of water outside the body; rather, it is death caused by water or fluid within the body.”
That unanimous ruling by the state’s high court has sparked a wave of scrutiny from area ranchers whose claims were initially denied coverage, according to Silvia Christen, executive director of the South Dakota Stockgrowers Association, which represents about 1,000 ranchers in the state.
“I have been getting a disturbing number of calls from ranchers who had De Smet Insurance during the Atlas blizzard,” Christen said Friday. “The company has their claims adjusters calling folks and offering to revisit their cases and ‘settle’ cases that were previously declined. In other words, the insurance company is trying to buy its way out of more potentially expensive lawsuits.”
But in reviewing claims with ranchers, Christen said De Smet’s adjustors had been working to reduce the amount of monetary damages despite their policies having the same verbiage as the Papouseks’ policy.
“What I’m hearing is they had the exact claim that was decided in the Papousek case,” she said. “It seems since the Supreme Court case, the company recognizes that its definition of drowning won’t hold up in court. That would seem to be good news. But the company seems to not want to pay the full claim, or pay at the rate that was decided in the Supreme Court case.”
Christen said the Stockgrowers Association believes that is decidedly unfair.
“This isn’t about ranchers who are looking for a handout,” she said. “These are ranchers who took out insurance policies to manage their losses, and they should expect to be covered when they have a loss.”
Rapid City attorney Michael Hickey, who represented the Papouseks in their case against the insurance company, said Friday that the high court’s ruling had triggered at least a half-dozen calls from potential clients who found themselves in the same situation as the Papouseks.
“They’ve brought us copies of their insurance policies, which are virtually identical in terms of coverage as the Papouseks’, and we’ve given them some recommendations and advice,” Hickey said. “The only company that routinely denied these claims appears to be De Smet; others handled those insured fairly. It appears that now they’re saying they want to do the right thing, which they should have done three years ago.”
Calls to De Smet Insurance on Friday seeking comment were not immediately returned.
Christen and Hickey encouraged those who had been denied insurance claims tied to Winter Storm Atlas to review their policies with an attorney.
“Don’t sign anything just because the insurance company puts something in front of you,” Hickey advised. “They may not have your best interests at heart.”
Hickey, who has been practicing law for 40 years and said he gained his greatest satisfaction by helping “salt-of-the-earth people” like the Papouseks prevail in their case, said most non-ranchers had little comprehension of the destruction Storm Atlas had wrought or the strain it had placed on small family ranching operations, some of which lost scores of cattle.
“In some cases, these losses were tremendous,” he said. “Until you see the pictures and the number of cattle lost, you can’t understand the devastation. They were the future of these ranches and, in some instances, it put people out of business.”
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Atlas Shrugged: The Definition Of Drowning
Posted: Wednesday, August 3, 2016 9:55 pm
By Thomas E. Simmons University of South Dakota
The blizzard of 2013 was a doozy. Over a two-day period in early October, “Winter Storm Atlas” raged. It began as rain but soon turned to snow. The snowfall reached nearly two feet. Winds topped 70 miles per hour.
Richard and Lorayna Papousek ranch near Quinn, South Dakota. As the storm subsided, they discovered 93 of their yearling heifers lying dead on the prairie.
A veterinarian examined eight or so of the corpses. The heifers’ lungs were saturated with water, their airways obstructed with foam. Clear liquid filled all of the cow’s airways and it ran from their noses.
The cattle, it seemed, had inhaled first the rain and then the snow. A lack of oxygen led to cardiac arrest, followed by death. The heifers, the veterinarian concluded “absolutely died due to drowning.” The Papouseks filed a claim for their cattle losses with their insurer.
Their insurance was a Farmowner-Ranchowner Policy from De Smet Mutual Insurance Company. The policy provided coverage for cattle deaths caused by several named perils including drowning. But because the heifers had not been submerged in water, De Smet denied the claim. The Papouseks sued.
The Papouseks introduced testimony from their veterinarian. De Smet did not dispute the cause of the cattle’s deaths, but it argued that “drowning” meant death caused by immersion in liquid. Since the cattle had not been submerged in water, their loss had not been caused by drowning, De Smet reasoned.
Pennington County’s Judge Wally Eklund agreed and dismissed the Papousek’s complaint. They appealed. As the case of Papousek v. De Smet Farm Mutual Insurance Company reached the South Dakota Supreme Court, the parties repeated their arguments on the meaning of drowning.
Two of the five jurists, Justices Severson and Wilbur, concluded that drowning could mean death by immersion as well as death resulting from excessive inhalation of water. Therefore, the heifers’ death was caused by a peril for which the Papouseks had insurance. They held for the Papouseks and against De Smet.
The other three members of the South Dakota Supreme Court agreed that the Papouseks should prevail, but disagreed slightly with Justices Severson’s and Wilbur’s reasoning. Drowning, they concluded, was a term with alternate definitions — death by immersion or death by suffocation from excessive fluids. The term “drowning,” therefore, was ambiguous. It could mean death caused only by immersion. It could just as reasonably mean death from inhaling water; death that results from liquid which prevents breathing, which is what happened to the Papouseks’ cattle caught in the blizzard. Which definition applied was unclear.
The law of insurance states that when a policy term is ambiguous, it should be construed in the insured’s favor. It’s a sensible rule. It is the insurer company that drafts the policy language, defining what constitutes a named peril and what does not. When the chosen language is unclear in a given circumstance, it ought to be read so as to provide coverage.
De Smet’s policy identified drowning as a named peril. The policy itself did not define drowning. Nor did it restrict coverage to drowning under certain circumstances, or provide any exceptions to coverage for drowning losses.
The policy also included coverage for cattle deaths from windstorms, then excluded deaths caused by windstorms when resulting from running against fences, fright or suffocation. De Smet argued that the suffocation exception also applied to death by drowning.
The court dismissed that idea. The language limiting the scope of coverage from windstorm losses did not also modify the coverage for drowning. There was no scope of coverage limitation for drowning. Judgment was entered for the Papouseks.
Thomas E. Simmons is an associate professor at the University of South Dakota School of Law in Vermillion. Simmons’ views are his own and not those of USD.
========
South Dakota Majority Reverses No Coverage Ruling For Cattle Killed In Winter Storm
(July 25, 2016, 1:24 PM ET) --
PIERRE, S.D. — A majority of the South Dakota Supreme Court on July
20 reversed a lower court’s ruling that an insurer has no duty to
indemnify its insureds for their loss of 93 cattle during winter storm
Atlas, finding that the insurance policy’s drowning provision is
ambiguous (Richard Papousek v. De Smet Farm Mutual Insurance Company of
South Dakota, No. 27658, S.D. Sup.; 2016 S.D. LEXIS 93).
(Opinion available. Document #51-160811-009Z.)
Richard and Lorayna Papousek, who own and operate a crop-and-livestock
ranch, discovered that 93 of their cattle died following winter storm
Atlas in October 2013.
Dr. Jim McConaghy determined that the cause of the cattle's death was drowning.
Drowning Provision
The Papouseks filed a claim under the drowning provision of a
Farmowner—Ranchowner Policy that was issued by De Smet Farm Mutual
Insurance Company of South Dakota. De Smet denied coverage, contending
that none of the 93 cattle was found submerged in water.
Papouseks sued the insurer in the 17th Judicial Circuit Court in
Pennington County, S.D., seeking a declaration as to coverage. Judge
Wally Eklund ruled in favor of the insurer, finding that the plain
meaning of drowning is "the deprivation of life by immersion in water or
other liquid."
The Papouseks appealed to the South Dakota Supreme Court, contending
that the drowning provision is ambiguous and, as a result, should be
construed in their favor.
2 Reasonable Interpretations
The majority agreed.
“‘Drowning’ is undefined in the Policy, and both De Smet and Papouseks
offer reasonable interpretations of the term. De Smet points out that a
common understanding of the term requires some form of submersion or
immersion in water or other liquid. . . . Papouseks point out,
however, that reasonable people understand that the hallmark of drowning
is not the presence of water outside the body; rather, it is death
caused by water or fluid within the body. . . . Because we agree with
Papouseks that the undefined term is susceptible to these two reasonable
interpretations, the provision indemnifying loss caused by drowning is
ambiguous. We therefore construe the provision liberally in Papouseks'
favor. . . . In turn, the dispositive question is whether Papouseks
established that the cattle died from inhaling water.”
The majority noted that McConaghy concluded that “the cattle's lungs
were saturated with water and their airways were obstructed with foam
(air trapped in water).”
“In addition, Dr. McConaghy found clear liquid in all airways and
running from the cattle's noses. Dr. McConaghy speculated that during
the storm, the cattle inhaled large quantities of rain and then snow,
resulting in a lack of oxygen and eventually cardiac arrest and death.
In Dr. McConaghy's opinion, his findings indicated that the cattle
‘absolutely died due to drowning.’ De Smet neither refuted Dr.
McConaghy's findings nor contradicted his opinion with competent
evidence. Indeed, De Smet proffered no evidence to the contrary. Based
on this record, we find Papouseks established coverage under the
drowning provision.”
Exclusion Inapplicable
De Smet argued that the policy’s windstorms or hail provision provides
that coverage is barred for loss "caused directly or indirectly by
frost, cold weather, ice (other than hail), snow or sleet, all whether
wind-driven or not;" and loss to livestock caused by or resulting from
"smothering, suffocation or asphyxiation" or "freezing in blizzards or
snowstorms[.]"
De Smet argued that this language applies to bar coverage because the
insureds established that the cattle died in part from the inhalation of
snow.
The majority noted the policy is a named-peril policy and the insureds only claimed coverage pursuant to the drowning peril.
“Importantly, the drowning provision contains no exclusions or similar
explanatory language. . . . Furthermore, to the degree that De Smet
believes this explanatory language also modifies the drowning provision,
it is mistaken — the explanatory language of the windstorms-or-hail
provision is prefaced by ‘[t]his does not cover loss’, followed by the
list explaining the scope of coverage. Thus, the explanatory language
limiting the scope of coverage for losses caused by windstorms or hail
neither applies to this case nor modifies the other covered perils. De
Smet failed to prove that an applicable policy exclusion exempted
Papouseks from coverage.”
Associate Justice Janine M. Kern wrote the opinion, which was joined by
Chief Justice David Gilbertson and Associate Justice Steven L. Zinter.
Associate Justice Glen A. Severson filed a separate concurrence, which
was joined by Associate Justice Lori S. Wilbur.
Special Writing
“The Policy covers named perils including drowning, and no applicable
exclusions apply. The uncontested opinion of Dr. McConaghy from his
postmortem examination, submitted to the court by affidavit at the
summary judgment hearing, was that the cattle died from drowning. I
would not find the term drowning to be ambiguous. The term only became
ambiguous when the circuit court added words from dictionary definitions
to a clear term in the Policy. The clear terms of the Policy do not
limit drowning to submersion in water. Thus I concur in reversal and
remand to the circuit court to enter summary judgment in favor of
Papouseks,” Associate Justice Severson said.
Sarah Baron Houy and Michael M. Hickey of Bangs, McCullen, Butler, Foye
& Simmons in Rapid City, S.D., represent the insureds. Jessica L.
Larson of Beardsley, Jensen & Lee Professional in Rapid City
represents De Smet.
