Summer 2011: Vol. 14, No. 3

Cooling Water Settlement Ends Decades Of Regulatory Inaction

Washington, D.C.–On Nov. 22, NELC attorneys secured EPA’s sign-off on a settlement agreement requiring the agency to take final action on Clean Water Act regulations governing cooling water intake structures (“CWIS”) – used to cool turbines at power plants and other large industrial facilities – by July 2012. The agreement ends four years of litigation before two federal courts challenging the agency’s earlier refusal to issue these regulations, in direct contravention of the Act’s requirement that facilities using CWIS employ the “best technology available” for minimizing their adverse environmental impact on aquatic ecosystems.

CWIS are known to kill or maim billions of aquatic animals each year, either by crushing them against intake screens or sucking them into the structures themselves. Mindful of these impacts, and knowing that technology existed to lessen them, Congress directed EPA to establish national CWIS regulations by 1976. After thirty years of haphazard implementation, however, the agency declared in 2006 that it would not issue CWIS regulations for existing facilities, leaving the task of fashioning CWIS restrictions for individual plants to beleaguered permit writers.

Frustrated by this disregard of a clear statutory mandate, NELC attorneys sued EPA on behalf of Environment Massachusetts, joining a legal fight involving a dozen other environmental organizations and a host of industry groups. The settlement agreement, endorsed by the U.S. District Court in New York over industry’s objection, paves the way for the imposition of a more robust permitting scheme.

“This isn’t a choice between environmental integrity and rolling blackouts,” said Environment Massachusetts attorney John Rumpler. “Affordable technologies – such as closed-cycle cooling systems – have been used at many power plants for years.”

Maine Lawsuits Seek Safe Passage For Endangered Atlantic Salmon

Portland, ME–On Jan. 31, NELC attorneys filed four lawsuits in federal district court against the owners and operators of seven dams on Maine’s Kennebec and Androscoggin rivers, citing their failure to take required steps to protect the nearly extinct Atlantic salmon populations inhabiting those rivers.

The suits allege that operations at each of the dams constitute an illegal “take” of Atlantic salmon in violation of the Endangered Species Act. In addition, the Kennebec River suits allege a violation of Clean Water Act water quality certifications prohibiting the owners and operators from allowing the fish to swim into the dams’ turbines.

The suits were filed 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. With ten adult salmon returning to the Androscoggin and five returning to the Kennebec in 2010, numbers precipitously below historical norms of 100,000 or more, the groups believe that litigation will be necessary to save the species.

The four complaints cite findings by the National Marine Fisheries Service and U.S. Fish and Wildlife Service that dams “are among the leading causes of both historical declines and contemporary low abundance” of Kennebec and Androscoggin salmon, and that “dams remain a direct and significant threat to Atlantic salmon.”

The complaints allege that migrating salmon are injured or killed when they attempt to pass through the dams’ rotating turbine blades, that the dams impede upstream and downstream passage, thus preventing salmon from gaining access to spawning and rearing habitat, and that the dams alter the natural habitat of the salmon to such a degree that the essential behavior patterns of the fish are significantly impaired.

Among the seven energy companies named as defendants is NextEra Energy Resources, a nationwide private utility that owns and operates four of the dams. The complaints allege that NextEra and the other dam owners have refused to implement basic, affordable protection measures that have been adopted elsewhere, such as installing effective devices to divert salmon from the turbines.

NELC Welcomes New Staff Attorney

In June 2010, Bracha Etengoff joined NELC’s litigation team as a staff attorney in NELC’s Boston office. Bracha graduated from Yeshiva University in 2000, received a master’s degree in psychology from Queen’s College in 2002, and obtained her law degree from the Benjamin N. Cardozo School of Law, where she was awarded Order of the Coif, in 2005. While a law student, she interned with then U.S. Court of Appeals Judge (now Supreme Court Justice) Sonia Sotomayor.

After graduation, Bracha represented injured persons in asbestos exposure cases for three years with a New York law firm, and then served for a year as associate director of the non-profit Environmental Law & Justice Project, focusing on urban environmental issues.

Since coming to NELC, Bracha has helped lay the groundwork for the recently-filed Clean Air Act lawsuit against ExxonMobil, and is investigating potential new cases along the eastern seaboard and in the Midwest.

New England’s Atlantic Salmon: “King of Fish”

Once, the sight of thousands of adult Atlantic salmon migrating upstream forecast the coming of winter in New England. Now, what few do make the trek can be counted on two hands in some Maine rivers (see related story).

Atlantic salmon fry, hatching in spring from eggs laid in autumn, spend anywhere from one to five years in the rivers of their birth, growing more slowly in the northern reaches of their territory. When large enough, they begin a process called smoltification, adjusting their internal systems to salt water to prepare for migration. Emigrating out to sea in the spring, they swim thousands of miles to winter off Greenland. After spending a few years maturing at sea, they use a keen sense of smell to return to their natal rivers to spawn.

Native to nearly every major river between the Housatonic in Connecticut and the St. Croix on the Canadian border, salmon were an integral part of life for Native Americans and American settlers, and they continue to play a vital – but increasingly limited – role in the ecosystem today.

The impacts of hydropower dams, over-fishing, and water pollution were seen as early as the 1800s, with the extinction of the Southern New England salmon. By the mid-1970s, only a few hundred adults were returning to Maine. Now, with pollution abating and fishing for salmon prohibited, restoring the salmon’s historical range by providing safe passage around dams is the key to returning the “king of fish” to its former prominence.

Second Clean Air Act Victory In Texas Cuts Oil Industry Pollution

Houston, TX – On Jan. 10, U.S. District Court Judge Nancy Atlas signed a Consent Decree in NELC’s Clean Air Act suit against petroleum industry conglomerate Chevron Phillips. The suit, brought on behalf of Environment Texas and Sierra Club, addresses chronic air pollution at the company’s 1,200-acre Cedar Bayou chemical plant in Baytown, Texas, one of the largest chemical manufacturing facilities in the Houston area.

This is the second NELC lawsuit in two years to focus on unplanned – but frequent – air pollution “upsets” at petrochemical plants. In 2009, NELC attorneys settled a similar Clean Air Act lawsuit addressing such upsets at Shell Oil’s Deer Park, Texas, refinery and chemical plant complex. Caused by equipment breakdowns, maintenance lapses, and other systemic failures, these upsets commonly release toxic air pollutants into the surrounding communities and, in worst-case scenarios, can cause in-plant explosions. One such explosion, at British Petroleum’s Texas City plant, killed 15 workers in 2005.

Under the consent decree, Chevron is required to immediately decrease its illegal emissions by more than 80 percent, implement extensive operational upgrades designed to prevent upsets, and enhance its monitoring of emissions. Chevron is also required to pay a $2 million penalty to fund an environmental health clinic run by Baylor College of Medicine, which includes a mobile health unit supporting the neighborhoods most directly affected by the plant’s emissions.

The lawsuit, filed in August 2009, alleged that Chevron had committed hundreds of Clean Air Act violations since 2003, releasing an array of toxic chemicals, including cancer-causing agents, into a municipal area whose air is consistently ranked among the worst in the nation.

“Today’s settlement demonstrates once again the crucial role that citizens can and must play in the enforcement of environmental laws in Texas,” said NELC Senior Attorney Josh Kratka.

“This agreement will provide a double benefit to area residents: cleaner air, and a program to treat people with health issues that may have an environmental component.”

Shell Settlement Yields Solar-Powered Rewards

Houston, TX – Thanks to the 2009 consent decree negotiated by NELC lawyers in the Clean Air Act lawsuit brought by Environment Texas and Sierra Club against Shell Oil Company, two Houston high schools near Shell Oil’s refining and chemical complex are reaping the benefits of a solar energy pilot project completed last fall. The project was fully funded with $2 million from the record $5.8 million penalty paid by Shell for emissions violations at its Deer Park, Texas, refinery and chemical plant.

In addition to saving the schools thousands of dollars in annual energy costs, the 700 solar panels installed on the schools’ roofs are demonstrating the benefits of alternative energy and educating students on renewable energy technology. The two schools have employed multiple solar panel designs, and a kiosk in the foyer of each school allows students and visitors to compare and contrast the technologies, and to monitor the electricity generated through a web-based interactive program.

The consent decree also requires Shell to fund a project to reduce emissions from diesel school buses, as well as to upgrade its technology and cut emissions from air pollution “upsets” at its Deer Park plants by 80%. According to recent reports NELC has received from Shell, the company is meeting its new emissions caps, is improving the management of its emissions flaring devices, and is on track with extensive equipment upgrades to resolve the persistent failures that were the target of the lawsuit.