Summer 2020: Vol. 22, No. 2

NELC attorneys urge Court of Appeals to reverse 1991 ruling limiting citizen enforcement

BOSTON – On March 3, NELC filed an amicus curiae (friend of the court) brief with the First Circuit Court of Appeals, asking that court to reverse a decades- old decision that restricts citizen enforcement of the Clean Water Act far more severely than Congress intended.

That decision, North and South Rivers Watershed Ass’n v. Town of Scituate, from 1991, misconstrued a provision of the Clean Water Act that prohibits the federal Environmental Protection Agency and citizen suit plaintiffs from seeking court-imposed penalties for violations that have already been the subject of a diligently prosecuted administrative penalty. The First Circuit ruled that this provision bars citizen suits even where the government sought no penalties, and ruled further that administrative actions bar all aspects of a citizen suit— even where the defendant continues to violate the Act and the citizen plaintiff seeks court-ordered pollution reduction.

This latter issue is now before the First Circuit again in another Massachusetts water pollution case, Blackstone Headwaters Association v. Gallo Builders. In this case, the citizen group plaintiff alleges that the defendant has been unlawfully discharging high levels of suspended solids into a tributary of the Blackstone River for over a decade. The Massachusetts Department of Environmental Protection had issued an administrative order against the defendant in 2014, and the citizen group filed suit to enforce the Clean Water Act in 2016, alleging that the pollution violations were continuing despite the state’s order. Nonetheless, citing the First Circuit’s Scituate decision, U.S. District Court Judge Timothy Hillman dismissed the suit in 2018.

The citizen group filed an appeal with the First Circuit. On behalf of Environment America, Environment Massachusetts, Environment Maine, and Environment Rhode Island, NELC submitted an amicus brief in support of the citizens.

The brief, authored by NELC attorneys Chuck Caldart and Matt Donohue, argues that the Scituate opinion “contravenes the plain language and legislative history of the statute and should be reversed.” The Clean Water Act, the brief explains, prohibits duplicate penalties for the same violations, but does not allow administrative orders to bar citizen suits seeking to compel compliance with the statute.

In Scituate, the First Circuit ruled that allowing citizen suits to go forward in the face of government administrative orders would be “undesirable” and “absurd,” and the court thus refused to follow the “literal” language of the statute. In so doing, the NELC brief argues, the court improperly substituted its own view of appropriate public policy for the policies chosen by Congress. “It is abundantly clear,” the brief argues, “that the plain language of [the Clean Water Act] does not lead to ‘absurd’ or ‘irrational’ results,” but rather “embodies the sensible and effective enforcement scheme envisioned by Congress”—one that favors “compliance and deterrence.”

Pilgrim’s Pride settlement continues to promote clean water and fund sustainable farming in Florida

DELAND, FL – In March 2017, NELC attorneys sued one of the world’s largest chicken producers, Pilgrim’s Pride, for repeated violations of the Clean Water Act at its poultry processing plant in Live Oak, Florida. The lawsuit, filed on behalf of Environment Florida and Sierra Club, alleged that the company had committed 1,377 days of Clean Water Act violations since 2012 by discharging wastewater that exceeded pollution standards—by as much as triple the legal limits—into the Suwannee River.

The parties entered into a judicial consent decree in January 2018 that required Pilgrim’s Pride to perform a comprehensive study of the plant’s discharges to the river and to make necessary upgrades to its wastewater treatment plant. Additionally, the settlement imposed a $1.43 million civil penalty, $1.3 million of which was allocated to create the Sustainable Farming Fund (SFF), which is managed by the Institute for Water and Environmental Resilience at Stetson University.

The SFF was established to improve soil, groundwater, and surface water quality in the Suwannee Basin by funding projects that promote sustainable farming. This is expected to reduce the runoff of pesticides and chemical fertilizers to the river and thus reduce the algae blooms that have plagued it. The SFF released its first Request for Proposals on August 6, 2018, and has funded several successful projects thus far:

• T & T Hay Farms received $20,000 to purchase drag and field renovator equipment to more evenly spread manure over its fields, which is expected to reduce nitrogen in the soil by 33 percent.

• Ease Land Organic Farm was granted $72,000 to purchase equipment to convert its manure to nutrient rich compost and thus become a fully organic farm.

• 3 Rivers Cattle received $36,000, which allowed the owners to purchase equipment for a crop rotation system that is expected to reduce nitrogen in the farm’s soil by 33 percent.

• Suwannee County Conservation District was granted $20,000 for a pilot project to demonstrate how cover crops reduce nitrogen leachate, and the project has been extended as a result of the success of the cover crop fields.

• The Future Farmers of America chapter at Suwannee County High School was given $20,000 for a pilot educational project on nitrogen leachate reduction which included the purchase of a no-till planter.

These projects are helping demonstrate that sustainable farming is practical in the region, and that it can reduce the likelihood of harmful agricultural runoff to the Suwannee River.

The SFF began soliciting additional Requests for Proposals in late 2019, and expects to make another round of grants in the near future. Thanks to the NELC Pilgrim’s Pride consent decree, the SFF will be able to continue to provide local farmers with the support they need to encourage sustainable farming practices in central Florida and help protect the integrity of the Suwannee River Basin for future generations.

Completion of NELC settlement virtually ends pollution discharges from Connecticut metal finishing plant

GLASTONBURY, CT – In January 2016, NELC attorneys sued Connecticut Galvanizing Corporation and Highway Safety Corporation on behalf of Environment Connecticut and Toxics Action Center (TAC) for long-standing violations of the Clean Water Act at their metal fabrication and galvanizing facility in Glastonbury, CT. For years, the facility discharged untreated stormwater contaminated with zinc, lead, and copper into Salmon Brook and Hubbard Brook, both of which run to the Connecticut River.

This February, the companies completed all requirements of the strict consent decree that resolved the case in October 2016, virtually ending pollutant discharges from the facility into Salmon and Hubbard Brooks. As required by the Decree, the companies installed a stormwater collection and treatment system for removal of heavy metals and other pollutants from the facility’s stormwater, upgraded maintenance practices to prioritize keeping toxic pollutants out of the facility’s stormwater in the first place, paid a penalty for past violations, and maintained 100 percent compliance with all limits in the facility’s Clean Water Act permit for 18 consecutive months.