Fall 2023: Vol. 25, No. 3

Clean Water Act settlement imposes enforceable compliance schedule, funds projects to preserve Rhode Island river

PROVIDENCE, R.I.—On July 17, U.S. District Court Judge Mary McElroy entered a judgment approving the settlement of a lawsuit filed by NELC attorneys against Kenyon Industries Inc. and its parent company, Brookwood Companies Incorporated, for violations of the federal Clean Water Act at their textile mill in Kenyon, Rhode Island. The agreement requires Kenyon to improve its wastewater treatment practices and fund projects to restore and preserve the Pawcatuck River.

The lawsuit, filed in August 2022 on behalf of Environment Rhode Island, alleged that Kenyon’s textile manufacturing facility, which physically straddles the Pawcatuck River in southern Rhode Island, had been repeatedly discharging acutely toxic wastewater with concentrations of copper more than two-and-a-half times its permitted limits.

When NELC attorneys filed suit, the stretch of the river just downstream from Kenyon was designated as “impaired”—and classified as unsuitable habitat for fish and wildlife—because of elevated toxicity levels.

The settlement followed months of productive negotiations between NELC attorneys and representatives of Kenyon. Despite completing a major overhaul of its wastewater treatment system in 2016, Kenyon continued to experience numerous problems with the system.

With insights from NELC’s wastewater engineering expert, the sides identified both relatively straightforward ways to optimize the treatment system’s performance and more far-reaching upgrades. The settlement requires Kenyon to begin implementing the simpler improvements immediately, gradually progressing to larger and more expensive upgrades until it achieves 12 consecutive months of compliance with its permit limits.

“We’ve structured an agreement to bring Kenyon into sustained compliance within two years, while incentivizing early action and leaving Kenyon some discretion in determining how best to achieve compliance,” noted NELC Staff Attorney Matthew Donohue, counsel for Environment Rhode Island. “It shows what is possible when a company decides to focus on solutions rather than on dragging things out in court.”

The 35-mile-long Pawcatuck River is part of the Wood-Pawcatuck Watershed, which recently qualified as a National Wild and Scenic River, a prestigious recognition enjoyed by less than 1% of the nation’s waterways.

As an additional condition of the settlement, Kenyon and Brookwood are required to pay a $10,000 civil penalty for past violations and make an additional payment of $40,000 to the Wood-Pawcatuck Wild and Scenic Rivers Stewardship Council.

The Stewardship Council will direct the money to projects promoting the restoration, preservation, and protection of the Pawcatuck, with a particular focus on the area downstream of the Kenyon mill.

Five years later, NELC’s consent decree with Pasadena Refining comes to a successful close

PASADENA, TEXAS—In 2018, NELC attorneys settled a Clean Air Act suit against the large Pasadena Refining System Inc. oil refinery near Houston, which has since been acquired by and is now operated by Chevron Corporation. The suit, brought on behalf of plaintiff groups Environment Texas and Sierra Club, addressed illegal air emissions that greatly exceeded permitted limits for a variety of harmful pollutants, among them particulate matter, sulfur dioxide, and nitrogen oxides. The settlement imposed a civil penalty of $3,525,000 and required a number of specific measures to substantially mitigate the facility’s illegal emissions. Now, five years since settlement, NELC is pleased to report that Chevron has completed all of its requirements under the terms of the consent decree.

As a condition of settlement, Chevron has been providing annual reports on emissions at the Pasadena Refinery. These reports document the refinery’s lessening air pollution impact on the neighboring community. Over the five years since the consent decree was entered as an order of the court, illegal emissions of VOCs, particulate matter, sulfur dioxide, and nitrogen oxides at the Pasadena Refinery have been significantly reduced.

In fact, over the final reporting year of this consent decree, the Pasadena Re- finery cut its unlawful emissions to zero. This impressive 100% reduction in illegal emissions can be largely attributed to Chevron’s closure of the facility’s Seal Pot and Electrostatic Precipitator Stack emission points, which had historically been major sources of Clean Air Act violations. As required by the consent decree, Chevron has also conducted mandatory training for its employees on equipment maintenance and operation, reporting procedures, and emergency preparedness.

The consent decree also required the company to contribute to technologies that could help make large oil refineries a thing of the past. As an additional condition of settlement, 90% of the civil penalty ($3,175,000) was paid to the Vehicle Emission Reduction Fund administered by the Houston-Galveston Area Council. This program helps replace older municipal vehicles with zero- or ultra-low-emission vehicle models. The fund was also used to bolster local infrastructure, such as electric vehicle charging stations, to support the transition to fossil fuel-free vehicles.

While certainly not a panacea for all the air quality problems in heavily polluted Harris County, Texas, the measures achieved by this consent decree nonetheless mark a real improvement in the health and well-being of the more than 75,000 people who reside within a 3-mile radius of the Pasadena refinery.

Ed Lloyd, 1948-2023: A rememberance of an environmental movement pioneer

On Aug. 5, the world lost Ed Lloyd, a pioneering public interest lawyer and a true crusader for the environment.

Ed began his legal career with the New Jersey Public Interest Research Group in the 1980s, where he worked with a team of lawyers to bring scores of citizen enforcement suits under the Clean Water Act, stopping illegal pollution and securing millions in penalties and funds for local environmental projects.

In 1990, Ed joined current Litigation Director Chuck Caldart as one of the two founding attorneys of the National Environmental Law Center, where he brought environmental enforcement cases and permit appeals from his base at the Environmental Law Clinic at Rutgers University in Newark.

Ed later crossed the Hudson to assume the directorship of the Environmental Law Clinic at Columbia Law School, and more recently served as a stalwart member of the New Jersey Pinelands Commission, where he was instrumental in preventing the construction of a natural gas pipeline.

Ed’s advocacy for conservation and public health remains an inspiration. He is survived by his wife, Janine Bauer, and their two children.