Summer 2017: Vol. 19, No. 2

NELC Supports Clean Water Rule; President Throws A Monkey Wrench

HOUSTON, TX—On January 19, NELC Attorneys Heather Govern and Chuck Caldart filed two amici curiae (friend of the court) briefs with the U.S. Court of Appeals for the Sixth Circuit, which is hearing challenges to the “Waters of the U.S.” rule issued jointly by the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers. The regulation, also known as the “Clean Water Rule,” was issued in 2015 to clarify the jurisdictional scope of the Clean Water Act by identifying the types of waterways subject to the act’s protections.

Although the rule is supported by an extensive administrative record, including a report authored by a group of respected scientists that reviews some 1,200 peer-reviewed studies, it was immediately challenged in court by business and government groups who argue that it is too expansive. One such challenge was filed by the Oklahoma attorney general, Scott Pruitt, who has since been confirmed as EPA administrator.

NELC’s amici briefs voices strong backing for the rule. One of the briefs was filed on behalf of 234 small business founders, owners, and operators from across the nation who depend on clean water for the success of their businesses. The second brief was filed on behalf of 79 local elected officials who have an interest in protecting the quality of their municipalities’ water supplies and in protecting the quality of both their municipalities’ water supply and nearby watersheds.

The federal agencies themselves filed a 246-page brief on January 12 providing a comprehensive and spirited defense of the rule. Yet barely a month after taking office, President Trump issued an executive order on February 28 directing those same agencies to withdraw the rule.

Any such withdrawal, however, will be subject to court review. It will be up to the courts to determine whether the scope of the Clean Water Act will be determined by science and law, or by rank politics.

NELC Lawsuit Targets Texas Refinery For Air Pollution Violations

HOUSTON, TX—On March 2, NELC at- torneys filed a federal lawsuit on behalf of Environment Texas and Sierra Club against Pasadena Refining System, Inc. (PRSI) for thousands of violations of the federal Clean Air Act at its Pasadena, Texas, refinery. The suit alleges PRSI has illegally emitted particulate matter, sulfur dioxide, nitrogen oxides, and other air pollutants in amounts that greatly exceed hourly and/ or annual pollution limits.

More than 75,000 people reside within a three-mile radius of the Houston-area refinery, along with at least eight schools, a Headstart program, and several day- care centers. PRSI is owned by the state- controlled oil company of Brazil, Petróleo Brasileiro S.A., or Petrobras. Petrobras’ purchase of the Pasadena refinery ten years ago has been linked to a bribery and kickbacks scandal known as “Operation Car Wash,” the largest corruption scandal in the history of Brazil.

“Design flaws, equipment failures, opera- tor errors, and startup/shutdown events at the Pasadena refinery resulted in 70,129 pounds of unauthorized releases of particulate matter in 2016 alone, making it the worst in Texas for this type of illegal pollution,” said Environment Texas Director Luke Metzger. Particulate matter is a mix of microscopic particles and liquid droplets, including acids, organic compounds, and metals, and is linked to increased emergency room and hospital visits, decreased life expectancy, and increase in aggravated asthma and respiratory problems.

This lawsuit is the fourth case NELC has filed on behalf of Environment Texas and Sierra Club since 2008 to confront illegal air emissions arising from oil refineries and petrochemical facilities along the Houston Ship Channel.

In a positive development, PRSI officials have already met with NELC attorneys and our consulting engineer to begin discussing whether the problems identified above can be addressed without lengthy litigation. “Resolution of this case will require PRSI to make a major new commitment to environmental compliance,” said

NELC Senior Attorney Josh Kratka. The lawsuit also alleges the Pasadena Refinery violated limits on nitrogen oxides (NOx) and carbon monoxide from its industrial boilers for thousands of hours since 2011, and exceeded limits on sulfur dioxide and volatile organic compounds (vOCs) dur- ing upset events. NOx, vOCs, and carbon monoxide contribute to the formation of ground-level ozone, a serious problem in the Houston area, while sulfur dioxide contributes to respiratory illness and ag- gravates existing heart and lung diseases.

NELC To Sue To Stop Contamination From Massachusetts Landfill

SOUTHBRIDGE, MA—On February 13, NELC Attorney Kevin Budris sent formal notice of NELC’s intent to file suit against Casella Waste Systems, Inc., Southbridge Recycling & Disposal Park, Inc., and the Town of Southbridge under the federal Clean Water Act and Resource Conservation and Recovery Act. The notice alleges that a 95-acre landfill owned by the town and operated by the companies is contaminating drinking water and a nearby stream and wetlands.

For more than a decade, the landfill has been leaching toxic pollutants into ground- water—water beneath the land’s surface that flows through soil, sand, gravel, and cracks in the granite bedrock of the area. These same pollutants—primarily lead, suspected carcinogen 1,4-dioxane, and highly toxic chlorinated volatile organic compounds—have also migrated into the groundwater-fed drinking water wells in nearby Charlton and Sturbridge.

The notice, sent on behalf of Toxics Action Center and Environment Massachusetts, alleges that the landfill’s discharges of these pollutants, and their presence in local drinking water, pose an imminent and substantial endangerment to health and the environment. The “citizen suit” provision of the Resource Conservation and Recovery Act authorizes lawsuits to stop such endangerments.

The notice also alleges that the landfill is discharging lead, 1,4-dioxane, iron, copper, manganese, barium, and other pollutants into nearby wetlands and into McKinstry Brook, in violation of the Clean Water Act.

“Contamination of these wetlands is unacceptable,” said Environment Massachusetts Director Ben Hellerstein. “Wetlands play an integral role in Massachusetts waterways, and must be protected.”