Victory For Clean Water: Toxic Discharges To End NELC Successfully Settles Clean Water Act Lawsuit Against Glastonbury, Conn. Facility

NELC attorney Kevin Budris, Joe Damon of Toxics Action Center (TAC), TAC Lead Community Organizer Claire Miller, and Farmington River Watershed Association Executive Director Eileen Fielding celebrate the victory with a tour of Salmon Brook and the Connecticut River.

NEW HAVEN, Conn.—On October 18, United States District Court Judge Jeffrey Meyer approved a consent decree that fully settled NELC’s Clean Water Act lawsuit against a Glastonbury metal fabrication and galvanizing facility. This settlement highlights one of our core tenets—anti- pollution laws do not work on their own. They require enforcement, and thanks to your support we were able to use the law to ensure clean water for two streams in Connecticut.

“This facility has persistently discharged toxic heavy metals into Hubbard Brook and Salmon Brook at concentrations well above what is permitted, including zinc at more than a thousand times the legal limit,” said NELC Attorney Kevin Budris. According to Connecticut Galvanizing’s own monitoring reports, the facility has violated pollutant limits every quarter since October 2011.

The facility, which conducts much of its operations outside and exposed to rainfall, had for many years delayed the implemen- tation of measures to reduce the levels of zinc, lead, copper, and other pollutants in its stormwater discharges. Such measures are required by the Clean Water Act, and the company’s refusal to address stormwater contamination at the facility endangered the fish and other wildlife that inhabit these waterways.

Analyses of the facility’s stormwater runoff have consistently indicated that it is toxic to aquatic life. And the effects of the long history of toxic runoff can be seen in the streams: testing commissioned by the Connecticut Department of Energy and Environmental Protection shows that Hubbard Brook and its wetlands are polluted with zinc at concentrations lethal to aquatic organisms.

NELC filed suit on January 14, 2016, on behalf of Toxics Action Center (“TAC”) and Environment Connecticut, to overcome years of inaction by the State of Connecticut and put an end to this unlawful pollution.

With assistance from a wastewater-engineering expert, NELC attorneys developed a set of proposed operation and maintenance upgrades designed to prevent metals from contaminating the stormwater. After several rounds of negotiation conducted over the summer, the company agreed to a consent decree that includes these upgrades.

“This settlement not only fixes a problem in Glastonbury; it will enable our organization to tackle a number of other problems in Connecticut’s riverways.”


The consent decree also requires the facility to install a stormwater collection and treatment system to remove heavy metals and other pollutants that reach the stormwater despite the operational controls. Together, the treatment system and control measures will significantly reduce the pollutant levels in the facility’s stormwater discharges.

“This settlement is a victory for Glastonbury neighbors living near Salmon Brook and Hubbard Brook and for countless residents who swim, boat, and fish along the Connecticut river,” said Sylvia Broude, executive director of Toxics Action Center. One of those neighbors, TAC member Joe Damon, is pleased that the consent decree requires the facility to install the treatment system by June 30, 2017, or face fines for delays. “Salmon Brook goes by my house, and i am thrilled to learn that these brooks will be cleaner and healthier,” said Mr. Damon. “We now have benchmarks and real deadlines to move this forward.”

The companies must also pay a $188,000 penalty and will be subject to additional fines if the facility fails to comply with all Clean Water Act pollution limits by the June 30, 2017, deadline. Most of the penalty will be paid to the Farmington river Watershed Association to fund the development and installation of stormwater pollution control measures on tributaries of the Farmington river, which, like Salmon Brook and Hubbard Brook, is within the Connecticut river Watershed in the Hartford area.

Eileen Fielding, executive director of the Farmington river Watershed Association, was grateful for NELC’s work in achieving the settlement and securing funds for further pollution prevention. “This settlement not only fixes a problem in Glastonbury; it will enable our organization to tackle a number of other problems in Connecticut’s riverways,” said Ms. Fielding.

The consent decree, the culmination of NELC’s year-long efforts to protect these waterways, illustrates the important role that citizen groups play in the implementation and enforcement of environmental laws, and shows that cooperative efforts among environmental professionals and concerned citizens can fashion meaningful solutions to longstanding pollution problems.

As noted by TAC’s Sylvia Broude, “This is a powerful example of the opportunity the Clean Water Act provides for citizens to take action to protect their communities from harmful pollution.”

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Fifth Circuit Court Of Appeals Denies Exxon Re-Hearing Request Trial Judge Will Issue A Revised Decision On Emission Violations In Baytown, TX

Environment Texas Director Luke Metzger shared information on the company’s unauthorized air emissions at the press conference in Baytown, Texas, announcing the filing of the Exxon lawsuit in 2010.

HOUSTON, TX—Having suffered a second unanimous ruling against it in the federal Fifth Circuit Court of Appeals, ExxonMobil Corporation is back in the trial court once again, where U.S. District Court Judge Da- vid Hittner must now issue a new decision in NELC’s Clean Air Act enforcement suit.

As reported in our last newsletter, on May 27 a three-judge panel of Fifth Circuit judges overturned Judge Hittner’s original decision in the case, ruling that he had committed numerous legal errors and abuses of discretion in ruling in Exxon’s favor despite undisputed evidence of thousands of emission violations at the company’s Baytown, Texas, oil refinery and chemical plant complex.

Not to be deterred, on July 11 Exxon filed a petition for “en banc” rehearing, in which it requested that the entire 15-judge appeals court reconsider the three-judge panel’s decision. But the Fifth Circuit wasted little time in rejecting Exxon’s petition, as not a single member of the court voted to hear Exxon’s case again.

The case is now back before Judge Hittner, with instructions from the Court of Appeals to correct the errors from the first decision and assess penalties against Exxon based on the full number of actionable violations.

In an October 31 court filing, NELC attorneys argued that Exxon should pay a civil penalty of more than $40 million for having committed more than 16,000 days of Clean Air Act violations, in which more than 10 million pounds of harmful, toxic, and carcinogenic pollutants were released illegally. There is no timetable for issuance of the revised decision.

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Upgrades To Come From Clean Water Act Lawsuit In Newport, R.I.

The city of Newport, R.I., is installing upgrades to its wastewater treatment plant that will make it a “jewel,” according to those close to the project. The upgrades are designed both to produce cleaner wastewater and to increase capacity, so that the plant can accommodate stormwater flows that currently spill into Newport Harbor as combined sewer overflows (“CSOs”).

NELC attorneys filed suit against the city in 2008, alleging that inadequate wastewater treatment and stormwater control were causing ongoing violations of the Clean Water Act. The resultant pollution often closed beaches and created unsafe conditions in the harbor. Under a revised consent decree in the case, signed by U.S. District Court Judge William E. Smith in 2016, the city must complete almost $100 million in improvements to the municipal system by 2033. improvements to the wastewater treatment plant are to be completed in 2019.

The treatment plant’s capacity is being increased from 19.7 million gallons per day to 30 million gallons per day, which will allow storm surges to be treated rather than discharged as CSOs. The effluent treatment system is also being overhauled, with a switch from a chlorine solution for killing bacteria to a more environmentally- friendly ultraviolet treatment system.

Another innovative upgrade will be the installation of 790 solar panels, financed in part by a ‘green grant’ from the state’s Clean Water revolving Fund. These panels will provide 328,000 kilowatt-hours of clean, renewable electricity each year. The plant is the first in rhode island to use solar photovoltaic power.

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