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Cases / Insurance, liability and compensation funds · United States · 1929–1993

Ventron/Morton mercury, Berry's Creek

Nature's voice · report
Mercury sat in the ground under the plant for years: about 268 tons in the subsoil and the groundwater, a court wrote in 1981.
Did nature suffer? Yes. Harm is on record.
Recorded
What the record lacks: 2 none on record · 1 insufficient · 1 disputed · 1 unclear See the gaps

A mercury-processing plant in Wood-Ridge, New Jersey, discharged effluent into Berry's Creek between 1929 and 1974. In 1993 the New Jersey Supreme Court sided with 21 insurers that had been sued over cleanup cover.

About 268 tonsMercury in subsoil and groundwater at the plant site (court description, 1981)
Figure from the New Jersey Appellate Division's 1981 opinion as reproduced by the Environmental Law Reporter; the cost of cleanup is not stated in the sources.

Status As of the latest source (1993 New Jersey Supreme Court ruling): summary judgment for the 21 insurers affirmed; no later development is recorded.

What?
A New Jersey mercury plant discharged effluent into Berry's Creek; insurers refused cleanup cover and won in the New Jersey Supreme Court in 1993. Environmental Law Reporter (ELR)
Where?
Wood-Ridge and Berry's Creek, New Jersey, United States. Environmental Law Reporter (ELR)
When?
Plant operation 1929–1974; Appellate Division opinion 9 December 1981; Supreme Court ruling 21 July 1993. Environmental Law Reporter (ELR)
Who?
Gained
Lost
Harmed
Why?
The insurers argued the company foresaw or intended the damage; the court found the insured had continued intentional discharge for years after warnings. FindLaw (New Jersey Supreme Court)
How?
Effluent carried mercury into the creek and about 268 tons remained in subsoil and groundwater; the insurance exclusion for intentional discharge of known pollutants was upheld on the facts. Environmental Law Reporter (ELR)
6 of 6 questions answered from the record

What happened

The record, in order.

The Ventron plant at Wood-Ridge, New Jersey, processed mercury from 1929 to 1974. The site was operated successively under the names F.W. Berk, Wood Ridge/Velsicol and Ventron. In DEP v Ventron (New Jersey Appellate Division, 9 December 1981) the court recorded that effluent carried "two to four pounds of mercury per day" into the creek, that about 268 tons of mercury sat in subsoil and groundwater, and that mercury in the creek sediment was the highest reported in freshwater anywhere. The state environment department (DEP) had raised concerns from 1970.

In Morton International v General Accident Insurance, 21 insurers were sued over cover for the environmental cleanup. Morton International was the insured named in the case. Aetna and London-market insurers refused cover. The grounds they gave, as relayed in later state environment agency documents, were that the company had foreseen or intended the damage and knew the substances it discharged were harmful.

A trial court found for the insurers in 1989 and an appeals court affirmed in 1992. On 21 July 1993 the New Jersey Supreme Court decided Morton International v General Accident (134 N.J. 1). It held that the insurers were estopped ("regulatory estoppel") from relying on the "sudden and accidental" exclusion because the industry's 1970 statements to regulators were misleading. The exclusion, the court said, was enforceable only against "an insured's intentional discharge of a known pollutant".

On the facts, the court found that the insured had continued to discharge pollutants intentionally for years after being warned, and summary judgment for the insurers was affirmed.

Morton's own annual report on Form 10-K said the company was "not entitled to indemnity under various comprehensive general liability policies for environmental cleanup". Morton bore the cleanup.

  1. 1929Plant begins processing mercury at Wood-Ridge, New Jersey (operated under F.W. Berk, then Wood Ridge/Velsicol, then Ventron)
  2. 1970State environment department (DEP) raises concerns about the plant
  3. 1974Mercury processing at the plant ends
  4. 1981New Jersey Appellate Division decides DEP v Ventron (9 December)
  5. 1989Trial court finds for the insurers
  6. 1992Appeals court affirms
  7. 1993New Jersey Supreme Court decides Morton International v General Accident (21 July): 21 insurers sued; summary judgment for insurers affirmed

What was said

Claims, in the words of those who made them.

“two to four pounds of mercury per day”

“an insured's intentional discharge of a known pollutant”

“not entitled to indemnity under various comprehensive general liability policies for environmental cleanup”

Where accounts differ

Each party's account, side by side, with its source. The record does not settle these points; it shows them.

Did the pollution exclusion in the liability policies bar cover for the mercury cleanup?
Company or project
Insurers (Aetna and London-market insurers)

Refused cover. The grounds relayed in later state environment agency documents were that the company foresaw or intended the damage and knew the substances it discharged were harmful.

Company or project
Morton International

Was named as the insured in the suit against 21 insurers; later stated in its Form 10-K that it was not entitled to indemnity under various comprehensive general liability policies for environmental cleanup.

Morton International (SEC EDGAR)
Courts
New Jersey Supreme Court (21 July 1993)

Insurers were estopped from relying on the exclusion because the industry's 1970 statements to regulators were misleading, but the exclusion could be enforced against "an insured's intentional discharge of a known pollutant". The insured had continued to discharge pollutants intentionally for years after being warned, so summary judgment for the insurers was affirmed.

FindLaw (New Jersey Supreme Court)

How it looked

What was shown, beside what was recorded.

Shown

    Recorded

    • The plant processed mercury from 1929 to 1974.
    • About 268 tons of mercury sat in subsoil and groundwater, and the court described creek-sediment mercury as the highest reported in freshwater anywhere (1981).
    • 21 insurers were sued in Morton International v General Accident; the New Jersey Supreme Court affirmed summary judgment for the insurers on 21 July 1993.
    • Morton International stated in its Form 10-K that it was not entitled to indemnity under various comprehensive general liability policies for environmental cleanup.

    Who gained

    Money that reached nature, beside money that stayed elsewhere.

    Reached nature or the ground

    Not published
    No figure published.

    Gained elsewhere

    Not totalled
    Currency: USD · Window: . All figures cover the same period. * Estimate built from cited figures.

    Responses on record

    • Morton International (Form 10-K, date not recorded): Stated in its Form 10-K that it was not entitled to indemnity under various comprehensive general liability policies for environmental cleanup. · Morton International (SEC EDGAR)

    In court and with insurers

    Every proceeding and every insurer decision on record.

    Lawsuits and rulings

    1. 1981-12-09Outcome not on record
      DEP v Ventron
      New Jersey Appellate Division · Civil · New Jersey Department of Environmental Protection (DEP) → Ventron

      The court's opinion described the plant's effluent ("two to four pounds of mercury per day"), about 268 tons of mercury in subsoil and groundwater and the highest reported freshwater creek-sediment mercury. The operative holding is not recorded in the sources. Environmental Law Reporter (ELR)

    2. 1993-07-21Defendant won
      Morton International v General Accident Insurance, 134 N.J. 1
      New Jersey Supreme Court · Civil · Morton International → 21 insurers (including General Accident)

      A trial court found for the insurers in 1989 and an appeals court affirmed in 1992. The Supreme Court held that the insurers were estopped from relying on the pollution exclusion (regulatory estoppel), but that it could be enforced against an insured's intentional discharge of a known pollutant, and affirmed summary judgment for the insurers because the insured had continued to discharge intentionally after being warned. FindLaw (New Jersey Supreme Court)

    Insurers

    1. Claim refused
      Aetna and London-market insurers → Morton International
      Stated reason: Insurers' stated ground, as relayed in later state environment agency documents: the company foresaw or intended the damage and knew the substances it discharged were harmful.

      Insurers refused cover for the environmental cleanup at the mercury plant.

    2. 1993Claim refused
      21 insurers sued in Morton International v General Accident → Morton International
      Stated reason: Pollution exclusion applied to intentional discharge of a known pollutant.

      The New Jersey Supreme Court affirmed summary judgment for the insurers. Morton's Form 10-K said the company was not entitled to indemnity for environmental cleanup under various comprehensive general liability policies. FindLaw (New Jersey Supreme Court)

    What nature saw

    Outcomes measured on the ground, and nature's note.

    Nature's report opens this page. Below: further outcomes measured on the ground.

    Mercury in subsoil and groundwater
    About 268 tons
    New Jersey Appellate Division, 1981
    Mercury in creek sediment
    Highest reported in freshwater anywhere
    Court's description, 1981
    Insurance cover for cleanup
    Refused; upheld by New Jersey Supreme Court
    Morton International v General Accident, 1993

    What we don't know

    Undisclosed, unproven, untried: recorded as data.

    Court

    • Unclear DEP v Ventron: outcome not on record.

    Accounts

    • Disputed Did the pollution exclusion in the liability policies bar cover for the mercury cleanup?

    Record

    • None on record The size of the cleanup cost is not given in the sources.
    • Insufficient Reported but not independently verified: later state environment agency documents describe the appeals court as finding that the company "intentionally discharged hazardous pollutants into the Passaic River for decades"; this wording has not been checked against the appeal opinion.
    • None on record The reasoning attributed to the 1993 Supreme Court opinion comes from commentary and from a 1998 case quoting it.

    Did the harm stop?

    Mercury processing at the plant ended in 1974; the court recorded in 1981 that about 268 tons of mercury remained in subsoil and groundwater.

    Who paid?

    Morton International bore the cleanup after the insurers prevailed; by its own account in its Form 10-K it was not entitled to indemnity under the policies for environmental cleanup.

    Sources

    Voices on record: ✓ Company or project— Government and regulators✓ Courts— Press and investigations— Communities and civil society— Researchers

    Company or project

    1. Morton International Form 10-K
      Morton International (SEC EDGAR) ·

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    Insurance

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    A clause in a liability policy that excludes damage caused by pollution from cover.

    Institutions

    SEC
    The US Securities and Exchange Commission, which regulates securities markets and what companies tell investors.
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