Exxon Liable for Thousands of Violations, NELC Tells Appeals Court

The United States Court of Appeals for the Fifth Circuit in New Orleans

NEW ORLEANS, LA—This February, NELC took the next step in our fight to hold ExxonMobil accountable for more than 18,000 days of Clean Air Act violations. On Feb. 2, we argued to a three-judge panel of the Fifth Circuit Court of Appeals that the trial judge’s decision in the case should be overturned.

The appeal, filed by NELC on behalf of Environment Texas and Sierra Club, came after U.S. District Judge David Hittner granted judgment for Exxon in December 2014.

Judge Hittner’s opinion acknowledged that Exxon’s Houston-area refinery and chemical plant complex had committed numerous violations of its Clean Air Act permits over an eight-year period, but declined to hold the company liable for those violations in this citizen enforcement suit. Further, in an unprecedented holding, Judge Hittner declared that he would not penalize Exxon even a single dollar, or order the company to take any corrective action, even if he had imposed liability for all the thousands of reported violations in the court record.

The legal and factual errors underlying this extraordinary ruling had been laid out in written briefs filed with the Fifth Circuit by NELC attorneys, and in an amicus curiae (friend of the court) brief filed by the City of Houston, the Harris County, Texas, Attorney, and the non-profit group Air Alliance Houston.

At the oral argument, NELC Senior Attorney Josh Kratka highlighted three fundamental errors made by the trial court.

First, noted Kratka, undisputed evidence presented at trial showed that Exxon had gained an economic benefit of more than $80 million by its long delay in making plant upgrades needed to achieve compliance. By Exxon’s own calculation, two improvement projects in particular would have prevented up to 500 tons of illegal air pollution. Judge Hittner’s failure to take these ill-gotten gains into account in his “no penalty” decision, Kratka argued, violates the Clean Air Act and constitutes reversible error.

Second, Kratka explained that the trial court erred in failing to enforce a pro- vision in Exxon’s refinery permit that prohibits “upset” emissions—those caused by unplanned events such as leaks and equipment breakdowns. Exxon has admitted that its refinery experienced thousands of unauthorized upset emissions, some lasting days or weeks, during the eight years covered by this case.

Third, Kratka pointed out that the trial judge had erred by failing to hold Exxon liable for several thousand additional violations: those it had reported, as required by law, in “Deviation Reports” submitted to regulatory agencies. At trial, Exxon’s own environmental man- ager testified that these reports do, in fact, detail permit violations.

In response, Exxon’s lawyer argued that the appeals court should defer to the oversight of the Texas Commission on Environmental Quality, which decided that no enforcement was needed for most of the violations at issue in this case. Fifth Circuit Judge Leslie Southwick, however, was skeptical. Wouldn’t that approach, he asked, undermine the role of citizen enforcement suits as envisioned by Congress?

An audio recording of the Feb. 2 argument can be found on the Fifth Circuit’s website, at:

bit.ly/ExxonAppeal (case-sensitive)

Although there is no set timetable, a decision from the court of appeals is expected before the end of the year.

Previous Story Next Story

NELC Sues Metal Galvanizer for Clean Water Act Violations

Stormwater from the Connecticut Galvanizing facility flows into a nearby stream.

NEW HAVEN, CT—On Jan. 14, NELC attorneys filed suit in federal district court in Connecticut against a Glastonbury metal galvanizing facility, alleging more than 2,000 violations of the federal Clean Water Act.

The lawsuit, filed on behalf of Environment Connecticut and Toxics Action Center and their members, asks the court to order the companies that own and operate the facility—Connecticut Galvanizing Corporation, Highway Safety Corporation, and Highway Safety Design and Fabrication—to comply with the Clean Water Act and to pay a civil penalty for their violations.

The suit alleges that the Connecticut Galvanizing facility routinely discharges illegal levels of toxic metals into two nearby streams.

Connecticut Galvanizing’s own monitoring reports show that the stormwater it discharges into Salmon Brook and Hubbard Brook frequently contains zinc, lead, and copper in concentrations significantly higher than the permit limits set by the Connecticut Department of Energy and Environmental Protection. Tests of the facility’s stormwater runoff also show that it is highly toxic to aquatic life.

In December, before the lawsuit was filed, NELC attorneys were allowed to inspect the facility site with an expert in wastewater engineering.

“Our expert’s inspection of the Connecticut Galvanizing site has made clear that heavy metals and other pollutants are contaminating the facility’s stormwater runoff because of a failure to implement basic pollution prevention measures,” explained NELC Staff Attorney Kevin Budris.

Before filing the case in court, NELC attorneys provided the companies with a detailed description of numerous pollution control measures that would prevent byproducts from the facility’s galvanizing process from washing into stormwater drains.

The companies, however, have not agreed to adopt any of these proposals. Nor have they implemented any alternative engineering solutions to address the persistent stormwater pollution at the facility.

“This ongoing toxic pollution is an insult to the local community,” said Toxics Action Center Executive Director Sylvia Broude. “Filing this lawsuit fulfills the role Congress intended citizens to play in seeing that the Clean Water Act is implemented and enforced.”

The case has been assigned to U.S. District Judge Jeffrey A. Meyer. No trial date has yet been set. With the support of our members, NELC will work to ensure the Clean Water Act is implemented in this and other cases.

Previous Story Next Story

Newport to Make Major Upgrades to Sewer System by 2019

Newport Harbor and its beaches will benefit from upgrades to the city’s sewer system.

PROVIDENCE, RI—On April 11, after nearly two years of negotiations among citizen plaintiffs, the U.S. Environmental Protection Agency (EPA), the Rhode Island Department of Environmental Management (DEM), and the City of Newport, R.I., U.S. District Court Judge William E. Smith signed a comprehensive revision to the Clean Water Act consent decree governing the city’s wastewater and stormwater discharges.

“This is the next significant step in longstanding efforts by Newport residents to reclaim their beaches for swimming, fishing, and other public uses,” noted NELC Litigation Director Chuck Caldart, who represented the citizen plaintiffs in the negotiations.

The current litigation grew out of discussions among a group of local citizens calling themselves “The Sewer Rats.” Distressed by decades of sewer overflows, frequent beach closings, and advisories against consumption of local shellfish, the group called on the city to fix its outdated sewage treatment and conveyance system. They also called for an end to overflows from the system, which would routinely send sewage into Newport Harbor during times of heavy rain or snow melt.

When these calls went unheeded, the group contacted both NELC and the non-profit advocacy group Environment Rhode Island.

In 2008, after meetings with the city proved unproductive, NELC attorneys filed a Clean Water Act lawsuit against Newport on behalf of Environment Rhode Island and four of the “Rats”— Burt Hoffman (now deceased), Henry Rosemont, Jr., Dave Wixted, and Ted Wrobel. At the request of NELC attorneys, the EPA and DEM joined as named plaintiffs in the lawsuit. Numerous technical meetings and negotiations followed, culminating in an 84-page judicial consent decree signed as an order of the court in 2011.

Among other requirements, the decree directed Newport to map its extensive sewer and stormwater piping and pumping system, to take a variety of actions to reduce stormwater inflow and groundwater infiltration into the sewage system, and to develop a longterm plan for ending sewer overflows by 2018. The resultant analysis, conducted in cooperation with an advisory committee that included EPA, DEM, and citizen plaintiff Ted Wrobel, determined that the work needed to eliminate all overflows by 2018 would place an extremely heavy burden on Newport’s ratepayers, but that many near-term improvements were possible.

Building on this framework, the revised consent decree requires that a series of upgrades to the wastewater treatment and conveyance system be completed by 2019. These are designed to reduce sewer overflows by more than 90 percent. The revised decree extends the final completion date for other aspects of the overflow reduction project, to allow the city to meet its obligations according to a financially manageable timeline.

The revised decree also requires a focus on the minimization and control of stormwater flows, including the use of “green infrastructure” approaches (such as permeable pavements, rain gardens, and rainwater harvesting systems), as a means of reducing stormwater flows to beaches and waterways.

Finally, the citizen plaintiffs inserted provisions in the revised decree to ensure that the interim pollution- reduction benchmarks are met. If they are not, the city will be required to take additional steps to meet them.

Previous Story Next Story

Heavy Metals in Our Streams: Zinc, Copper, and Lead

As the nation was reminded by the drinking water tragedy that is still unfolding in Flint, Mich., high levels of lead and other heavy metals are hazardous to human health. And when dumped into rivers and streams, these metals can endanger aquatic life as well.

Although naturally occurring in small amounts, heavy metals such as zinc, copper, and lead pose a significant threat when released in higher concentrations by industrial facilities. Mining, metal manufacturing, and metallurgic processes such as galvanizing are common sources of zinc, copper, and/or lead pollution.

All three metals bioaccumulate in fish and other aquatic life, meaning they build up in the animals’ bodies over time, and become more concentrated higher in the food chain.

Bioaccumulation can lead to serious physiological damage over even a short time period. Exposure to any of these three metals can cause ion imbalances in fish that lead directly to cellular impairment in gills, kidneys, and other vital organs. Loss of gill function frequently leads to death.

Copper has also been shown to impair immune response in fish. When present together, zinc and copper can harm fish more severely than either metal would on its own, causing death at lower concentrations.

Even at non-lethal levels, zinc and lead can inhibit calcium uptake in fish, hindering reproductive function. Lead can also damage the central nervous system, leading to behavioral abnormalities or death.

Noting the harm that zinc, copper, and lead can cause to aquatic life at elevated concentrations, the EPA has designated these metals as “toxic pollutants” under the Clean Water Act.

By taking aim at industrial polluters such as Connecticut Galvanizing (see 2016 Summer – NELC Sues Metal Galvanizer for Clean Water Act Violations), NELC is helping to protect our streams and rivers from the destructive impact of heavy metals.

Previous Story Next Story