Delaware River Basin Commission Releases Updated Water Resource Planning Model

APRIL 30, 2015

The Delaware River Basin Commission (DRBC) today announced the release of an updated modeling tool that will allow the public to test water management scenarios and compare their outcomes. The tool, known as the Delaware River Basin-Planning Support Tool (DRB-PST), provides interested stakeholders with the ability to test flow management scenarios against a set of existing targets, regulations, and laws that govern the use of water within the Delaware River Basin. 

The tool will show users how those scenarios would change an array of outcomes, including the amount of water available for drinking supplies, downstream releases, habitat protection, flood mitigation, and more.

“The availability of the DRB-PST modeling tool is a positive development intended to support a more comprehensive understanding about how reservoir and flow management operating plans affect river flows and related aquatic habitats,” said DRBC Executive Director Steve Tambini. “It will allow interested stakeholders to use a science-based tool to compare the impacts of ‘what-if’ scenarios on multiple and complex water resource goals, targets and objectives.”

River flows, diversions out of the basin, and water uses within the basin are managed, operated and regulated through a series of complex and interdependent rules and targets. The DRB-PST model uses hydrologic inputs (like runoff and snowmelt), operating conditions, and management rules to help evaluate the impacts of reservoir operating plans on the multipurpose water resource objectives identified in the Delaware River Basin Compact, which created the DRBC in 1961.

Three reservoirs located in headwaters of the Delaware River that are owned and operated by the City of New York (NYC) provide about half of the city’s water supply. Downstream releases of water from these reservoirs and diversions out of the basin for NYC and New Jersey were established and continue to be negotiated by Delaware, New Jersey, New York, Pennsylvania, and NYC (commonly known as “the Decree Parties”) under the terms of a 1954 U.S. Supreme Court Decree and the subsequent Good Faith Agreement Recommendations.

The DRBC and the Decree Parties have some overlapping membership and a long history of collaboration on planning and modeling issues within the Delaware River Basin. The DRBC signatory members include the four basin states and the federal government. NYC is not a DRBC member. The Compact prohibits the DRBC from adversely affecting the releases or diversions provided in the 1954 Decree without the unanimous consent of the five Decree Parties.

The Flexible Flow Management Program (FFMP), which has been unanimously approved by the Decree Parties, is intended to meet water supply demands, protect fisheries habitat downstream of the NYC-Delaware Basin reservoirs, enhance flood mitigation, and repel the upstream movement of salt water in the Delaware Estuary. The FFMP’s target numbers and goals are included in the PST-DRB model and any changes to the FFMP in the future can be reflected in the model as well.

The DRBC’s original water supply planning model was developed in 1981. That model was revised several times to include additional data, facilities, and flow management policies, and was moved into OASIS software in the early 2000s. The original OASIS model known as DRB-OASIS can simulate the current FFMP, including the Combined Seasonal Storage Objective (CSSO) for flood mitigation, but not the revised Habitat Protection Program (HPP) which has evolved since the first FFMP. 

The Habitat Protection Program uses simulated forecasts of reservoir inflows to determine the amount of water available for fisheries releases from the three NYC reservoirs. In doing so, modeling can be performed to evaluate scenarios that use water more efficiently for fisheries habitat objectives while maintaining the reliability of critical water supply objectives and flood mitigation components of the FFMP.

The DRB-PST incorporates aspects of NYC’s Operations Support Tool (OST), a sophisticated monitoring and modeling system that allows for better predictions than previous tools of reservoir-specific water storage levels, quality, and inflows. OST uses forecasts to determine the amount of available water to release for habitat protection and assesses the risks of reservoir operations to public water supply needs across the entire NYC reservoir system, not only its three Delaware River Basin reservoirs. DRB-PST incorporates the OST simulated forecasts for long-term water supply planning based on reservoir operations. 

A technical working group from DRBC, the Decree Parties (four states and NYC), and the City of Philadelphia have worked together to ensure that the model is useful for those with an interest in Delaware River operations. This group will continue to evaluate and verify model inputs and results and release revised PST versions as necessary.

“Scientists and engineers from DRBC and New York City collaborated to ensure this new public modeling tool produced accurate results that are comparable to those generated by the OST modeling tool that the City uses to make decisions about reservoir operations every day,” said Tambini.

Persons who did not previously use the DRB-OASIS model who wish to obtain the DRB-PST model for the first time will need to purchase required software. Additional information about DRB-PST and the upcoming Regulated Flow Advisory Committee meeting can be found on the commission’s web site at www.drbc.net.

DRBC is a federal/interstate government agency responsible for managing the water resources within the 13,539 square-mile Delaware River Basin without regard to political boundaries. The five commission members are the governors of the basin states and the commander of the U.S. Army Corps of Engineers’ North Atlantic Division, who represents the federal government. 

More information concerning the 1954 Decree, the Decree Parties, and related water management activities can be found on the web site for the USGS Office of the Delaware River Master at http://water.usgs.gov/osw/odrm/.

JURY AWARDS WOMAN $13M FOR CONTRACTING MESOTHELIOMA AFTER EXPOSURE TO ASBESTOS IN TALCUM POWDER MANUFACTURED BY COLGATE-PALMOLIVE COMPANY

APRIL 30, 2015

LOS ANGELES, CALIFORNIA (AP) 

A Los Angeles jury awarded $13 million to a 73-year-old woman who contracted a deadly disease from using asbestos-containing talcum powder manufactured by Colgate-Palmolive Co.

Jurors deliberated for two hours Tuesday before finding that New York-based Colgate was 95 percent responsible for Judith Winkel's mesothelioma, a fatal lung disease, according to her lawyers. The verdict included $1.4 million in damages for her husband.

Winkel's lawyers said she got the rare cancer from using Cashmere Bouquet talcum powder.

"This is an example of the legal system exposing what a company should have been honest about 50 years ago," attorney Chris Panatier said. "Judith Winkel only wanted a jury to hear the truth about this product and hopefully to help others who are similarly exposed."

While billions of dollars have been paid in verdicts and settlements to people sickened by exposure to asbestos, it's often in cases related to use of the mineral in construction materials or insulation. Tiny fibers of the carcinogen can be breathed in and lodge in the lungs, leading to fatal illnesses such as asbestosis, lung cancer and mesothelioma.

The Food and Drug Administration conducted a study more than five years ago that found no asbestos in cosmetics it tested containing talcum powder. 

However, the agency said there's been concern about asbestos contamination in talc since the 1970s. Some studies have shown a possible association between use of talc powders and ovarian cancer but have not conclusively linked the two, the agency said.

Jurors found the company negligent for the design, manufacture or sale of the product and found that it presented a substantial danger that they failed to warn consumers about.

Colgate, which sold Cashmere Bouquet in 1995, said it was disappointed with the verdict.

"We believe that the facts and evidence presented at trial showed that Cashmere Bouquet ... played no part in causing the plaintiff's illness," the company said in a statement.

Panatier said it was the first verdict against Colgate-Palmolive involving asbestos exposure from talcum powder.

An appeals court in New Jersey recently affirmed a $1.6 million verdict awarded to a man with mesothelioma who said he got the disease from cosmetic talc.

In Winkel's case, there will be no appeal.  She and Colgate reached a confidential settlement Wednesday before the jury was set to hear evidence to determine punitive damages.

Absent XL’s consent to the settlement, under the terms of the policy, Piedmont could not sue XL for bad faith refusal to settle the underlying lawsuit in the absence of a judgment against Piedmont after an actual trial

A Georgia Supreme Court ruling that an insurer is not liable for refusing to indemnify a policyholder that settled a case without the insurer’s permission is out of step with the vast majority of comparable cases around the country.

But policyholder attorneys warn that other insurers involved in coverage disputes are likely to cite the Atlanta-based court’s unanimous ruling in Piedmont Office Realty Trust Inc. v. XL Specialty Insurance Co.

Johns Creek, Georgia-based Piedmont Office Realty Trust purchased two liability insurance policies, a $10 million primary policy from Liberty Surplus Insurance Co., a unit of Liberty Mutual Insurance Group, and a $10 million excess policy from Stamford, Connecticut-based XL Specialty, according to last week’s ruling.

XL’s excess policy provided that the insurer would pay only for a loss that Piedmont became legally obligated to pay as a result of a securities claim. It also contained a “consent to settle” clause, which said no settlements would be made without the insurer’s written consent, according to the ruling. In addition, the policy included a “no action” clause, which stated that no action would be taken against the insurer if there had been full compliance with the policy’s terms.

Plaintiffs brought a securities class action against Piedmont seeking more than $150 million in damages. Both sides eventually agreed to mediate the claim, according to the ruling.

By that time, Piedmont had exhausted its primary policy limit as well as another $4 million of its excess policy “simply by defending itself,” according to the ruling.

Anticipating a settlement, Piedmont sought XL’s consent to resolve the claim for the remaining $6 million under the excess policy, but XL agreed to contribute only $1 million more to the settlement.

Without further notice to XL or obtaining its consent, Piedmont then agreed to settle the underlying lawsuit for $4.9 million. Piedmont then demanded XL provide coverage for the full settlement amount, which XL refused.

Piedmont then sued XL alleging breach of contract and bad faith. An Atlanta federal judge dismissed the suit. Piedmont appealed and the 11th U.S. Circuit Court of Appeals in 2014 asked the George Supreme Court to consider the case.
In its unanimous ruling last week, the Georgia high court agreed the case against XL should be dismissed.

“In sum, absent XL’s consent to the settlement, under the terms of the policy, Piedmont could not sue XL for bad faith refusal to settle the underlying lawsuit in the absence of a judgment against Piedmont after an actual trial. It follows that the district court didn’t err in dismissing Piedmont’s complaint,” the state Supreme Court ruled.

Attorneys in the case declined to comment or could not be reached for comment.

Black-letter rule

The ruling “creates a black-letter rule that the insurance company can withhold consent to a settlement and force the policyholder to go to trial, and (the ruling) doesn’t seem to be supported by the policy language here,” Charles P. Edwards, a partner at law firm Barnes & Thornburg L.L.P. in Indianapolis, said in commenting on the case.

Observers say the decision is contrary to rulings by most other courts.
Most other courts in the country have held “that the failure of a policyholder to seek consent before settling will only result in no coverage if the insurance company can show that it was prejudiced by the policyholders’ settling without consent,” said K. James Sullivan, a partner and policyholder attorney at Calfee, Halter &Griswold L.L.P. in Cleveland.

This decision is “something of an outlier,” said policyholder attorney Linda J. Kornfeld, a partner at Kasowitz Benson Torres & Friedman L.L.P. in Los Angeles.

However, “the fact that this court ruled so strongly in favor of the insurer should not be ignored. Insurers who don’t participate in a settlement because they argue the policyholder prevented them from doing so will rely on the case, and the theory set forth in this case, to deny coverage, and there’s no guarantee that the insurer won’t prevail,” Ms. Kornfeld said.

3 TEXAS DOCTORS SPLIT $6 MILLION IN WHISTLEBLOWER SETTLEMENT

APRIL 22, 2015

Three whistleblowers who alleged that a Texas-based hospital overpaid doctors in exchange for patient referrals will split about $6 million from a federal False Claims Act settlement.

Citizens Medical Center, a county-owned hospital in Victoria, Texas, agreed to pay the United States nearly $22 million to settle allegations that it violated the False Claims Act by paying several referring cardiologists more than the fair market value of their services.

The settlement also resolved allegations that the hospital paid bonuses to emergency room physicians based partly on  the value of their cardiology referrals, the DOJ said last week.

The Justice Department alleged the practices violated the Stark Statute and the False Claims Act. 

The Stark Statute restricts the financial relationships that hospitals are allowed to have with doctors who refer patients to them.

The allegations arose from a lawsuit filed by three whistleblowers -- Dakshesh “Kumar” Parikh, Harish Chandna, and Ajay Gaalla -- under the qui tam provisions of the False Claims Act. The three cardiologists had privileges to practice at Citizens Medical Center at the time the alleged offenses occurred.

They will collectively receive about $6 million from the recoveries, the DOJ said.

Under the False Claims Act, private citizens can sue on behalf of the government for false claims and share in any recovery. 

The claims settled last week are allegations only and there has been no determination of liability, the DOJ said.

In 2012, Citizens Medical Center paid the same three cardiologists a total of $8 million in the negotiated settlement of another lawsuit that alleged racketeering, conspiracy, and discrimination. As part of that settlement, they resigned their hospital privileges.

The case is United States ex rel. Parikh, et al. v. Citizens Medical Center, et al., Case No. 6:10-cv-64 (S.D. Tex.).

//-------------------////

Justice News

Department of Justice

Office of Public Affairs

---

FOR IMMEDIATE RELEASE

Tuesday, April 21, 2015

Texas-Based Citizens Medical Center Agrees to Pay United States $21.75 Million to Settle Alleged False Claims Act Violations

Citizens Medical Center, a county-owned hospital in Victoria, Texas, has agreed to pay the United States $21,750,000 to settle allegations that it violated the False Claims Act by engaging in improper financial relationships with referring physicians, the Justice Department announced today.

“The Department of Justice has longstanding concerns about improper financial relationships between health care providers and their referral sources, because those relationships can alter a physician’s judgment about the patient’s true health care needs and drive up health care costs for everybody,” said Principal Deputy Assistant Attorney General Benjamin C. Mizer of the Justice Department’s Civil Division.  “In addition to yielding a recovery for taxpayers, this settlement should deter similar conduct in the future and help make health care more affordable.”

“Any type of false claim or improper behavior under our health care fraud laws are serious allegations that will not be taken lightly,” said U.S. Attorney Kenneth Magidson of the Southern District of Texas.  “The settlement announced today represents the effectiveness of our continuing efforts and an example of our priorities in this arena.”

The settlement announced today resolved allegations that the hospital provided compensation to several cardiologists that exceeded the fair market value of their services.  The settlement also resolved allegations that the hospital paid bonuses to emergency room physicians that improperly took into account the value of their cardiology referrals.  The United States contended that these agreements violated the Stark Statute and the False Claims Act.  The Stark Statute restricts the financial relationships that hospitals may have with doctors who refer patients to them.

The allegations settled today arose from a lawsuit filed by three whistleblowers, Dakshesh “Kumar” Parikh, Harish Chandna and Ajay Gaalla, under the qui tam provisions of the False Claims Act.  Under the act, private citizens can bring suit on behalf of the government for false claims and share in any recovery.  The whistleblowers will collectively receive $5,981,250 from the recoveries announced today.

This settlement illustrates the government’s emphasis on combating health care fraud and marks another achievement for the Health Care Fraud Prevention and Enforcement Action Team (HEAT) initiative, which was announced in May 2009 by the Attorney General and the Secretary of Health and Human Services.  The partnership between the two departments has focused efforts to reduce and prevent Medicare and Medicaid financial fraud through enhanced cooperation.  

One of the most powerful tools in this effort is the False Claims Act.  Since January 2009, the Justice Department has recovered a total of more than $24 billion through False Claims Act cases, with more than $15.3 billion of that amount recovered in cases involving fraud against federal health care programs.

The case, United States ex rel. Parikh, et al. v. Citizens Medical Center, et al., Case No. 6:10-cv-64 (S.D. Tex.), was handled by the Civil Division’s Commercial Litigation Branch, the U.S. Attorney’s Office for the Southern District of Texas and the U.S. Department of Health and Human Services’ Office of Inspector General.  The claims settled by this agreement are allegations only, and there has been no determination of liability.

TRAIN LOSES ITS FOOTING IN NORTH TOLEDO, OHIO

MAY 1, 2015

TOLEDO, OHIO

An incident in which a train car derailed in North Toledo remained under investigation Friday. 

There were no injuries, according to Toledo police. The derailment occurred about 7 a.m. Friday on the tracks at the end of North Michigan Street, near Albany Street, a police dispatcher said. 

Police released no other details. 

Train cars bore the CSX Transportation logo while people wearing jackets with the Norfolk Southern Railway logo worked the scene later.

Representatives of neither of the two companies could be reached for comment.
Source: http://www.toledoblade.com/