Reynolds Aluminum Plant in NY Pollutes Native American Lands with Fluoride

NOTICE:

 [***1]  THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF
THE FINAL PUBLISHED VERSION.

DISPOSITION: The orders are affirmed, with one bill of costs.

COUNSEL: Felt, Evans, Panzone, Bobrow
& Hallak LLP (Richard L. McConnell of Wiley, Rein
& Fielding, Washington, D.C., of counsel), Clinton, for Travelers Indemnity
Company, appellant.

 

Anderson, Kill
& Olick P.C., New York City, Clements
& Ducharme P.C., Canton, and Proskauer Rose LLP (John H. Gross of counsel), New York City, for respondent.

JUDGES: Before: Cardona, P.J., Mikoll, Mercure, Casey and Yesawich Jr., JJ. Mikoll,
Mercure, Casey and Yesawich Jr., JJ., concur.

OPINIONBY: Cardona

OPINION:

 [**919] 

 [*640]  MEMORANDUM AND ORDER

 

Cardona, P.J.

Appeals (1) from an order of the Supreme Court (Demarest, J.), entered July 10,
1996 in St. Lawrence County, which, inter alia, denied a motion by certain
defendants to compel the production of certain documents, and (2) from an order
of said court, entered
December 10, 1996 in St. Lawrence County, which, inter alia, denied a motion by
certain defendants to renew the prior motion.

Plaintiff has operated an aluminum reduction plant in St. Lawrence County
(hereinafter
 [***2]  the plant) since 1959. Under orders issued by the
State Department of Environmental Conservation (hereinafter the DEC) and the
Federal Environmental Protection Agency (hereinafter the EPA), plaintiff has
undertaken actions to clean up several contaminants, including polychlorinated
biphenyls (hereinafter PCBs), polyaromatic hydrocarbons (hereinafter PAHs),
fluoride, arsenic and cyanide discovered in and around the plant and
in river sediments of the St. Lawrence River near the plant.

In May 1995, plaintiff commenced this declaratory judgment action against
defendants

 [**920]  and approximately 16 other insurance companies seeking coverage under
insurance contracts issued between 1959 and 1986 to recover $ 150 million
in costs expended or to be expended by plaintiff to clean up the on-site
environmental contamination. n1 In its responsive pleading, defendant Travelers
Indemnity Company contended that its insurance contracts contained, inter alia,
a provision precluding coverage for costs arising from damages caused by
fluorine or its compounds.

 

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n1 References to
“on-site” represent those areas of required remediation contained on the plant’s
property as well as a section of the St. Lawrence River near the plant.

 

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 [***3] 

Following joinder of issue, Travelers sought discovery relating to the creation
and dispersal of
fluorides at the plant, plaintiff’s
knowledge of the contaminating properties of
fluorides, and information related to the airborne dispersal of
fluorides beyond the plant’s property. When plaintiff opposed

 [*641]  discovery, particularly with respect to airborne
fluoride dispersal, Travelers moved to compel production of, inter alia, that
information. n2 Finding that airborne
fluoride emissions were not part of the underlying
Federal and State claims against plaintiff and that plaintiff was not seeking
coverage for such damage, Supreme Court denied that part of Travelers’ motion.
Thereafter, Travelers sought renewal contending that airborne
fluorides had been disposed of in the Black Mud Pond landfill, one of the areas
requiring remediation at the plant
for which plaintiff sought recovery. The court denied Travelers’ motion noting
that plaintiff agreed to disclose information concerning on-site airborne
fluoride emissions. Defendants appeal. n3

 

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n2 Certain other defendants joined in Travelers’ motions.
 [***4] 

n3 Defendant Aetna Casualty and Surety
Company has not appealed from either order.

 

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Initially, we agree with Supreme Court that the underlying Federal and State
actions do not require plaintiff to remediate off-site properties. Notably,
plaintiff has produced documents pertaining to its knowledge of
fluoride toxicity in general and information relating to on-site
fluoride emissions. We further note that in the event the nearby St. Regis Mohawk Tribe
actually commences a threatened natural resources damages action against
plaintiff, defendants will not be responsible for reimbursing plaintiff for the
costs of any off-site airborne
fluoride contamination
given plaintiff’s affirmative representation that it will not seek recovery
under defendants’ policies for such a claim. Under these circumstances, we
cannot say that Supreme Court abused its broad discretion in discovery matters
by limiting the scope of discovery (see,
Cardiomax Inc. v Gustafson, 227 A.D.2d 812, 642 N.Y.S.2d 430;
Grems v City of Oneida, 206 A.D.2d 732, 614 N.Y.S.2d 942) to information pertaining to on-site airborne
 [***5] 
fluoride emissions, since Travelers has failed to establish that information pertaining
to off-site airborne
fluoride emissions is
“‘* * * sufficiently related to the issues in [this] litigation to make the
effort to obtain it in preparation for trial reasonable’” (
Allen v Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406-407, 288 N.Y.S.2d 449, 235 N.E.2d 430,
quoting 3 Weinstein-Korn-Miller, NY Civ. Prac P 3101.07; see,
NBT Bancorp v Fleet/Norstar Fin. Group, 192 A.D.2d 1032, 1033, 597 N.Y.S.2d 236). In our view, information pertaining to off-site airborne
fluoride
emissions is neither
“material” nor
“necessary” (see, CPLR 3101 [a];
Allen v Crowell-Collier Publ. Co., supra) to the determination of defendants’ liability under the insurance contracts.

Mikoll, Mercure, Casey and Yesawich Jr., JJ., concur.

ORDERED that the orders are affirmed, with one bill of costs.

http://actionpa.org/fluoride/lawsandcourts/ny-reynolds.html