Summer 2019: Vol. 21, No. 2

Significant victory for clean air in Detroit

DETROIT—On March 27, Detroit Renewable Power made the stunning announcement that, as of that very day, it was permanently shutting down one of the nation’s largest municipal trash incinerators located in the heart of downtown Detroit.

The move elicited instant praise from every corner of the city—from excited and relieved neighborhood residents and environmental activists who had worked for decades to reduce the incinerator’s odors and pollution, and from Detroit’s city officials and public opinion leaders.

Senior Attorney Josh Kratka believes NELC’s Jan. 29 notice of intent to sue the incinerator played a major role in the shutdown decision.

“As required under the Clean Air Act, NELC sent a letter to company officials on behalf of Environment Michigan and the Ecology Center providing 60 days warning that the groups planned to file a federal lawsuit to address hundreds of air pollution violations at the incinerator,” Kratka explained.

“Our 60-day deadline was due to expire just five days after Detroit Renewable Power announced the shutdown.”

The looming federal lawsuit, with its threat of nearly $100,000 per day in civil penalties, combined with a mandate from the state of Michigan to address the gar- bage stench and constant pressure from well-organized community residents, finally forced the company’s hand.

As set out in the groups’ 60-day notice letter, the incinerator’s own reporting showed five years’ worth of repeated incidents of carbon monoxide emissions above legal limits. Carbon monoxide pollution contributes to the formation of ground-level ozone, which is linked to increased rates of asthma and other respiratory problems.

In addition, excessive carbon monoxide emissions from an incinerator show that there is incomplete combustion of the trash being burned. This is an extremely serious matter, as it causes elevated emissions of toxic and cancer-causing pollutants, such as benzene, toluene, formaldehyde and dioxins, which are products of incomplete combustion.

A company official told reporters that it would simply be too costly to bring the aging incinerator into compliance with its legal pollution limits. Arrangements are now being made to instead dispose of the trash at regulated landfill sites, which will remove a clear human health hazard from inner-city Detroit.

NELC opposes Casella Waste Systems’ attempt to delay landfill case

NASHUA, N.H.—On March 19, Casella Waste Systems filed a motion in United States District Court to halt proceedings in NELC’s Clean Water Act suit, which seeks to require the company to obtain a permit governing the discharge of pollutants from the solid waste landfill operated by Casella and its subsidiary in Bethlehem, New Hampshire.

The lawsuit, filed on behalf of Toxics Action Center and the Conservation Law Foundation in May 2018, alleges that contaminated leachate from the landfill is being conveyed, without treatment, to the Ammonoosuc River via a discharge channel on the defendants’ property. Monitoring of the landfill leachate has shown the presence of heavy metals, a carcinogenic industrial solvent and various polyfluorinated compounds.

Last summer, Casella had asked the court to dismiss the case in its entirety, arguing that pollutants that travel through groundwater are outside the purview of the Clean Water Act. United States District Court Judge Paul Barbadoro denied the motion. In his decision, Judge Barbadoro noted that this is not a case involving pollutants from a landfill that travel through the groundwater and enter the river from diffuse underground sources, but rather a case involving pollutants that leach into groundwater, emerge on the surface, and are then discharged to the river via the discharge channel. The Clean Water Act, he held, requires a permit for the conveyance of pollutants from a “point source,” and the Act includes a “channel” within its definition of point source.

Accordingly, Judge Barbadoro set the trial of the case for October of this year.

In its recent motion for delay, Casella makes essentially the same argument it lost in its motion to dismiss. Casella argues that the trial should be delayed until after the Supreme Court decides another case due to be argued before that Court this fall. The Supreme Court will examine whether discharges to bodies of water through groundwater, rather than through a point source, are covered by the Clean Water Act.

In our opposition to this motion, NELC attorneys noted that Judge Barbadoro had already ruled that the issue now before the Supreme Court is “completely unrelated” to the discharges for which the citizen groups seek to hold Casella responsible.

“We look forward to a denial of Casella’s motion, and to taking the case to trial in the fall,” stated NELC Litigation Director Chuck Caldart.

The Ammonoosuc River, which flows from Mount Washington in northwestern New Hampshire, is home to a wide variety of fish and plant life, and is a popular fishing and recreational resource in the region. The discharge permit that the lawsuit seeks to require would help ensure that the pollutants from the landfill are not discharged at levels that pose a risk to human health or aquatic species.

Meet NELC’s newest attorney, Maggie Nivison

BOSTON—In January, NELC added attorney Maggie Nivison to our litigation team.

Maggie joined NELC after completing a fellowship with the American Civil Liberties Union of Massachusetts. She graduated cum laude from Georgetown University Law Center in 2017. While she was in school, Maggie worked with the Environmental Law & Justice Clinic at the Institute for Public Representation, where she represented community members fighting to save a public park in their hometown.

Maggie is excited to work at NELC because it has a proven record of creating positive change.

“As a child growing up in the Pacific Northwest, I had no idea what a privilege it was to breathe fresh, clean air,” Maggie said. “Joining NELC is my opportunity to help extend that privilege to everyone.”

She is eager to learn from the skilled litigators at NELC and to be a part of their ongoing efforts to stop polluters in their tracks.