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Archive for November, 2018

GenX litigation – DEQ announces settlement of PFAS claims against Chemoursby Andrew Whiteman

On November 21, 2018, North Carolina environmental officials announced a proposed settlement between the Department of Environmental Quality (“DEQ”), Cape Fear River Watch, and Chemours. According to the State’s press release, the proposed consent order outlines a comprehensive resolution regarding per- and polyfluoroalkyl substances (“PFAS”) contamination originating from Chemours’ Fayetteville Works facility. It requires Chemours to dramatically reduce toxic water and air emissions, provide permanent replacement drinking water supplies for adjoining residents, and pay a $12 million civil penalty to DEQ.

The proposed consent order may be found here.

The settlement will not affect lawsuits brought by class action plaintiffs or public utilities.

Whiteman Law Firm, along with several other firms, is representing plaintiffs in class action lawsuits against DuPont and Chemours for environmental contamination of the air and water in southeastern North Carolina. In these lawsuits, the plaintiffs alleged that the defendants discharged toxic chemicals from their chemical production facility near Fayetteville, North Carolina into the surrounding air and water. The plant produces chemicals that are used to make non-stick coatings for cookware and other consumer products. Plaintiffs alleged that DuPont and Chemours knew that this family of chemicals is dangerous, but nevertheless dumped these chemicals into the air and water to avoid the expense of taking appropriate safety precautions, while misleading regulators about the nature of their discharges.

Scientists have found GenX and other PFAS chemicals in the Cape Fear River, in wells located adjacent to the Chemours facility, and in air samples.

On November 14, 2018, the U.S. Environmental Protection Agency issued draft toxicity assessments for GenX chemicals and PFBS. According to the EPA’s Fact Sheet, animal studies have shown that GenX causes adverse health effects in the liver, kidney, blood, and immune systems and in developing fetuses, and studies of PFBS have shown health effects on the thyroid, reproductive organs and tissues, and kidneys and in developing fetuses.

The EPA’s draft guideline for exposure to GenX, 80 parts per trillion, is lower than the health goal of 140 parts per trillion issued by the North Carolina Department of Health and Human Services. In contrast, in June 2017 scientists working for the North Carolina Department of Environmental Quality found concentrations of GenX of between 421 ppt and 1100 ppt at four locations along the Cape River.

According to the EPA’s press release, following the closure of a 60-day public comment period, the EPA will consider the comments, revise the draft documents, as appropriate, and then publish final toxicity assessments.

Please contact Whiteman Law Firm for more information.

 

GenX class action lawsuit – EPA issues draft GenX and PFBS toxicity assessmentsby Andrew Whiteman

Whiteman Law Firm, along with several other firms, is representing plaintiffs in class action lawsuits against DuPont and Chemours for environmental contamination of the air and water in southeastern North Carolina. In these lawsuits, the plaintiffs alleged that the defendants discharged toxic chemicals from their chemical production facility near Fayetteville, North Carolina into the surrounding air and water. The plant produces chemicals that are used to make non-stick coatings for cookware and other consumer products. Plaintiffs alleged that DuPont and Chemours knew that this family of chemicals is dangerous, but nevertheless dumped these chemicals into the air and water to avoid the expense of taking appropriate safety precautions while misleading regulators about the nature of their discharges.

Scientists have found GenX and other polyfluorinated chemicals in the Cape Fear River, in wells located adjacent to the Chemours facility, and in air samples.

On November 14, 2018, the U.S. Environmental Protection Agency issued draft toxicity assessments for GenX chemicals and PFBS. According to the EPA’s Fact Sheet, animal studies have shown that GenX causes adverse health effects in the liver, kidney, blood, and immune systems and in developing fetuses, and studies of PFBS have shown health effects on the thyroid, reproductive organs and tissues, and kidneys and in developing fetuses.

The EPA’s draft guideline for exposure to GenX, 80 parts per trillion, is lower than the health goal of 140 parts per trillion issued by the North Carolina Department of Health and Human Services. In contrast, in June 2017 scientists working for the North Carolina Department of Environmental Quality found concentrations of GenX of between 421 ppt and 110 ppt at four locations along the Cape River.

According to the EPA’s press release, following the closure of a 60-day public comment period, the EPA will consider the comments, revise the draft documents, as appropriate, and then publish final toxicity assessments.

Please contact Whiteman Law Firm for more information.

 

Whiteman Law Firm attorneys participate in Hurricane Florence pro bono legal aid programby Andrew Whiteman

Attorneys at Whiteman Law FIrm are participating in a program that provides pro bono legal services to victims of Hurricane Florence. The program was established by the North Carolina Bar Association, Legal Aid of North Carolina, the American Bar Association, and the Federal Emergency Management Agency.

Click here to learn more about the Hurricane Florence legal aid program.

Whiteman Law Firm supports adoption of a state law that would outlaw discretionary clauses in health and disability insurance policies.by Andrew Whiteman

Whiteman Law Firm supports adoption of a state law that would outlaw discretionary clauses in health and disability insurance policies.

Whiteman Law Firm has asked the North Carolina Department of Insurance to indicate whether it will support adoption of NAIC model legislation that would prohibit so-called “discretionary clauses” in employer-sponsored health and disability insurance policies.

Most employer-sponsored health and disability benefits policies contain provisions that grant discretionary authority to the insurance company to interpret plan terms and to determine eligibility for benefits. The inclusion of a discretionary clause in the policy means that a federal court that is asked to review an insurer’s benefits decision must give deference to the insurer’s determination. Under the abuse of discretion standard, the decision of an insurance company to deny benefits will be upheld “if it is the result of a deliberate, principled reasoning process and if it is supported by substantial evidence.” DuPerry v. Life Insurance Company of North America, 632 F.3d 860, 869 (4th Cir. 2011). The quantum of evidence necessary to sustain the insurer’s decision is “more than a scintilla but less than a preponderance,” Newport News Shipbuilding & Dry Dock Co. v. Cherry, 326 F.3d 449, 452 (4th Cir. 2003), and has been described alternatively as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion,” LeFebre v. Westinghouse Elec. Corp., 747 F.2d 197, 208 (4th Cir. 1984). The parties are not entitled to a jury trial, and the court’s review is generally limited to the record that was before the insurer at the time it made its final benefits decision.

Thus, the abuse of discretion standard is far more restrictive than the standard that applies in a breach of contract case. If the claimant purchases a private (not an employee benefit) insurance policy, a jury will determine whether the insurer breached the terms of the policy without giving deference to the insurer’s determination of the claim. Furthermore, in a non-ERISA case, the court construes ambiguous policy terms in favor of coverage and against the insurance company. North Carolina Farm Bureau Mutual Insurance Co. v. Mizell, 138 N.C. App. 530, 532, 530 S.E.2d 93, 95 (2000).

The abuse of discretion standard results in a serious handicapping of the case in favor of the insurance company. Due to the conflict of interest that exists between the insurer’s dual roles as claims adjudicator and payor of benefits, there is a financial disincentive for the insurance company to fairly adjudicate claims.

The National Association of Insurance Commissioners is an association of the chief insurance regulators from each of the 50 U.S. states and its six territories. In 2006, the NAIC proposed a model statute titled Prohibition on the Use of Discretionary Clauses Model Act. Under the NAIC’s Model Act, discretionary clauses in health and disability insurance policies would be outlawed. According to the NAIC’s website, 26 states have adopted the Model Act or some version of it by statute or regulation. Various courts have upheld the state laws against an ERISA preemption challenge. See e.g. Orzechowski v. Boeing Co. Non-Union Long-Term Disability Plan, Plan No. 625, 856 F.3d 686, 695 (9th Cir. 2017). The North Carolina Legislature and the Department of Insurance have not acted.

The NAIC Model Act is a sensible legislative solution to a serious problem that affects claimants covered by employer-sponsored health and disability insurance policies. The question for our lawmakers is why North Carolina’s citizens should not be afforded the same protections as other states’ residents.

Contact us if you would like more information.

 

 

 

 

 

Andrew Whiteman will speak on new ERISA disability claim regulations on December 14, 2018.by Andrew Whiteman

The Department of Labor’s new ERISA disability claim regulations became effective on April 1, 2018. Mr. Whiteman will speak on this topic on December 14, 2018, at a continuing legal education program sponsored by the North Carolina Advocates of Justice.

Click here to see the program for the NCAJ Social Security Disability 2018 CLE

Contact us for more information about our ERISA disability benefits practice.

Whiteman Law Firm Launches Blogby Andrew Whiteman

The Whiteman Law Firm officially launched it’s company blog today. You can now view our blog posts at https://www.whiteman-law.com/blog/

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