Judge Rejects Exxon Bid To Halt Clean Air Suit

The ExxonMobil Refinery in Baytown, TX, part of the largest petroleum and petrochemical complex in the United States.

Houston – On June 7, 2011, United States District Court Judge David Hittner flatly rejected a motion by ExxonMobil Corporation and two subsidiaries to dismiss the Clean Air Act lawsuit filed against them by NELC attorneys on behalf of plaintiffs Environment Texas and Sierra Club.

The lawsuit alleges that thousands of violations of federal law at the nation’s largest oil refinery and chemical plant complex, located in Baytown, Texas, have resulted in more than eight million pounds of unlawful air pollution since 2005.

In its motion to dismiss, Exxon argued that state and federal regulators already oversee its facilities and that there are no “ongoing” violations. NELC attorneys were able to demonstrate, however, that violations continue, and that the government’s failure to stop them opens the door for citizens to enforce the law.

In fact, what Exxon failed to tell the court was that from April 12 to June 2, 2011, while its motion to dismiss the case was pending, a leaking pipe was spewing more than 50 tons of propylene – a chemical with a high propensity to form ground-level ozone, or smog – into the air, in violation of the Clean Air Act. Exxon delayed reporting the leak to government regulators until June 9, two days after its motion to dismiss for lack of “ongoing violations” was denied.

“Congress specifically allowed for citizen enforcement suits because some- times government agencies fall down on the job, and this case is a perfect example of that,” said Luke Metzger, Executive Director of Environment Texas.

Judge Hittner’s denial of Exxon’s motion allows the case to continue toward trial.

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NELC Wins Record Penalty Against PA Water Polluter

Pittsburgh – After more than four years of litigation, NELC has secured the largest penalty in Pennsylvania history against a water polluter under the federal Clean Water Act’s citizen enforcement provision.

Under the terms of a consent decree signed on August 3, 2011, by U.S. Magistrate Judge Robert C. Mitchell, GenOn Northeast Management Company, a subsidiary of Texas-based GenOn Energy, Inc., must pay a total of $3.75 million in penalties and must install cutting- edge wastewater treatment systems to promptly end discharge violations at the company’s coal-fired Conemaugh Generating Station, located near Johnstown.

GenOn, a Houston-based company with over 40 power plants across the country, must achieve compliance with its permit limits in a timely fashion or pay specified penalties for any future violations.

The penalty includes a $250,000 civil penalty paid to the U.S. government and an additional $3.5 million to be paid to the Foundation for Pennsylvania’s Watersheds, to fund restoration and preservation projects in the Conemaugh River watershed (see related story, 2012 Winter – Newport Settlement Will Clean Harbor, Restore Beaches).

“This historic penalty will send a strong message to companies in Pennsylvania and throughout the region,” said David Masur, Director of co-plaintiff PennEnvironment. “Equally important, the company must finally comply with its legal discharge limits and reduce its pollution of the Conemaugh River.”

In March 2011, Judge Mitchell ruled that GenOn had committed a staggering 8,684 violations of the federal Clean Water Act by discharging illegal levels of five different pollutants—some of them toxic—into the Conemaugh River since 2005.

In addition to helping clean up the long-impaired Conemaugh River and its tributaries, NELC’s settlement is likely to foster pollution reductions nationwide.

The U.S. Environmental Protection Agency is currently writing new national guidelines to regulate the wastewater discharged from flue gas scrubbers, which are used to reduce air pollution at coal-fired power plants. These scrubbers remove pollutants such as selenium and boron from smokestack emissions, but then typically dump them into nearby waterways. The technology that GenOn must now install in Pennsylvania demonstrates that coal-fired plants can instead remove these pollutants from their wastewater prior to discharge.

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Federal Judge Rules That Lawsuits To Protect Endangered Atlantic Salmon May Go Forward

The Worumbo Dam on the Androscoggin River in Maine, located within the critical habitat of endangered Atlantic salmon.

Portland, ME – On September 9, 2011, Judge George Z. Singal of the United States District Court for Maine rejected a plea to dismiss or stay three of the four NELC lawsuits brought against Maine dam owners for alleged violations of the Endangered Species Act. The lawsuits accuse the companies of operating their dams on Maine’s Kennebec and Androscoggin rivers in a manner known to harm en-dangered Atlantic salmon, which depend on these rivers as habitat. Although the companies claim that they are in the process of obtaining federal permits that would require steps to minimize these adverse effects, the issuance of such permits is likely years away and would not protect the few remaining salmon in the interim.

NELC brings these suits on behalf of Environment Maine, a statewide advocacy group, and Friends of Merrymeeting Bay, a local organization named for the estuary that is shared by the two rivers. Federal environmental agencies have already determined that dams on these rivers pose significant threats to salmon, but the agencies have yet to develop a comprehensive plan for the recovery of the species.

Judge Singal’s orders affirm earlier recommended rulings by a U.S. magistrate judge that the Act allows Plaintiffs to sue despite the pending permit application process, that the issues at stake are ripe for resolution, and that the court does not require “specialized” input from the agencies before it can determine whether the dams harm salmon.

“These majestic fish are on the brink of extinction,” said Emily Figdor, Director of Environment Maine. “The court recognized its need to step in now, before it’s too late.”

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Interview With John Dawes

John Dawes (third from left) at a news conference about NELC’s Clean Water Act victory in Johnstown, PA on June 6, 2011. With Dawes, from left, Peter Wray (Sierra Club Member), Josh Kratka (NELC Senior Attorney), David Masur (PennEnvironment Director), Mike Kane (Foundation for Pennsylvania Watersheds Chairperson), and Kurt Limbach (PennEnvironment Member).

John Dawes has served as Executive Director of the Foundation for Pennsylvania Watersheds since 1994, where he has supervised the distribution of small grants to over 150 environmental and watershed associations throughout the state. The Foundation’s goal is to provide seed money that allows local groups to leverage even larger grants from state and federal agencies to restore damaged rivers and streams. The Foundation was selected as the recipient of $3.5 million to be paid by GenOn Northeast Management Company in settlement of NELC’s Clean Water Act enforcement suit. Its website is www.pennsylvaniawatersheds.org.

How would you describe the condition of the Conemaugh River and its various tributaries?

The Conemaugh River watershed is the most highly degraded watershed in the state, due to the legacy of coal mining. A single 10-mile stretch from Patton to Johnstown contains over 200 seeps of abandoned mine drainage from old underground mines.

This scarred, even toxic, land does not support plant life, and when it does, the first species to take hold are invasives. These invasive species do not support native bird species on their migratory routes and do very little for the integrity of the environment.

Remarkably, the watershed nevertheless retains a number of pristine tributaries that need protection. Our strategy, using input from local watershed associations, is to address the “worst of the worst” and protect the “best of the best.”

How will the funds the received from the PennEnvironment vs. GenOn settlement help the Foundation in its work?

The funds from the settlement will help us tremendously to address impacts in an entire watershed, enabling us to look at multiple projects that relate synergistically, both up- and downstream. Toward that end, we have already convened representatives from more than 20 organizations and agencies, from the Bureau of Abandoned Mine Reclamation and the Blacklick Creek Watershed Association to Trout Unlimited and the Pennsylvania Fish & Boat Commission.

What are the advantages of being able to focus on multiple projects in a single watershed?

As we concentrate our grant making in a targeted region, we will be better able to evaluate outcomes of the work. It is my belief that addressing one situation may create benefits in another problem area. For example, as we re-establish wetlands, or reconstitute soils and then plant over abandoned mine lands, we will reduce the volume of acid mine drainage into rivers and streams.

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NELC Welcomes New Paralegal

Boston, MA – In August, Mary Rock moved from Michigan to Boston to become the new paralegal and legal administrator for NELC. Mary graduated from the University of Michigan in 2011 with a BA in English and a minor in the multi-disciplinary Program in the Environment. Before joining NELC, Mary was a communications intern with the Environmental and Energy Study Institute in Washington, DC, and facilitated writing workshops in Michigan.

Mary is assisting NELC attorneys with enforcing clean air, clean water, and endangered species regulations by developing new cases and researching evidentiary material. She is playing an active role in the case against Exxon-Mobil, maintaining records of illegal air emissions and the patterns of upset events, and in the Atlantic salmon lawsuits, for which she has analyzed fish passage reports and draft species recovery documents.

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Newport Settlement Will Clean Harbor, Restore Beaches

Henry Rosemont, a Newport resident and one of the plaintiffs in NELC’s lawsuit, speaks at an August 2011 news conference by Easton’s beach. Standing with him, from left: John Rumpler (Environment America Senior Attorney) and David Wixted (Newport resident and co-plaintiff).

Providence, RI – On October 18, U.S. District Court Judge William E. Smith entered an order approving a comprehensive consent decree that resolves a longstanding NELC enforcement action against the City of Newport, RI.

In 2008, after several meetings with city officials, NELC attorneys filed suit on behalf of Environment Rhode Island and four Newport residents to end decades of Clean Water Act violations at this historic port. The suit alleged that Newport allowed sewer overflows to discharge directly to Newport Harbor during rainstorms and snow melt, causing swimming beaches and shellfish beds to be permanently closed. In addition, the suit alleged, the city collected and discharged untreated stormwater to nearby Easton’s Beach, thus closing two of Rhode Island’s most popular beaches after heavy rains.

Under the 2011 decree, negotiated with the assistance of the U.S. Environmental Protection Agency, the city must implement a detailed set of remedial measures – including storm sewer separation, reduction of inflow and infiltration, treatment plant optimization, and sewer line upgrades – according to a specified schedule, with a goal of ending all over- flows to Newport Harbor by mid-2018.

Newport must also install and operate a stormwater treatment system for its discharges to Easton’s Bay, and must meet specified water quality targets with such discharge.

“Newport’s waters are treasured by all Rhode Islanders – they are vital to our ecology, economy, and quality of life,” said John Rumpler of Environment Rhode Island.“The city’s decision to take responsibility for ending its pollution will be appreciated for generations to come.”

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