This year marks the 40th anniversary of the Clean Water Act. And several Connecticut environmental groups are marking the occasion by filing citizen lawsuits in federal court against eight junkyards that, according to the enironmentalists, are polluting Connecticut rivers and Long Island Sound.
If a federal judge agrees, the scrap metal businesses may find themselves taking a huge financial hit. Fines can run as high as $37,500 per day for violating the Clean Water Act.
Citizen suits — typically filed against a corporation for violating a statute — are common in environmental law circles as a way to try to stop the pollution of a waterway. The Clean Water Act, says attorney Roger Reynolds, senior attorney for the Connecticut Fund for the Environment, “is one of the reasons rivers no longer catch on fire like they did 40 years ago.”
The citizen suits, Reynolds said, “are uniquely American in that it allows the people that swim and vote and ultimately drink this water to bring actions when they think there are violations of law or pollution.”
These lawsuits, all filed separately last month and not as a class action, allege that the businesses failed to register for the state Department of Energy and Environmental Protection’s new general permit for the discharge of storm water associated with industrial activity.
The eight businesses are all scrap metal companies from Bridgeport, East Hartford, New Britain, Norwich, Seymour, Waterbury and Willimantic. None of the defendant companies have responded to the lawsuit yet. Three of the defendants have attorneys who have filed a notice of appearance. None of the defense lawyers would talk on the record for this article.
Off the record, comments like “extortion attempt” were being used to describe the lawsuits. One lawyer was very familiar with how costly the potential fines could be and questioned the CFE’s true motives.
According to a notice filed with the DEEP, one of the defendants, A&B Auto Salvage Inc. in East Hartford, was given notice of the permit problem on April 25, 2012 after its lawyer, Allan W. Koerner, of Hartford’s Rome, Clifford, Katz & Koerner, requested that the DEEP’s Water Permitting and Enforcement Division conduct an inspection of the property just days earlier.
Roofs And Roads
While the investigation procedures giving rise to the lawsuits may yet come into question if the cases make their way to a federal courtroom in Connecticut, Reynolds said the bottom line is that the scrap metal businesses are polluting the environment.
Rain water washes over roofs, roads, parking lots and picks up grit, nitrogen from fertilizers and other chemicals as it makes its way to local waterways.
“Industrial storm water contains toxics, heavy metals,” said Reynolds. “Those are the main contaminants.”
Reynolds explained that under the Clean Water Act, any entity that discharges into the waters of the United States needs to have a permit to do so. Businesses must undergo a hearing process, public comments are made regarding the permit, and appropriate discharge limits are issued.
In the case of storm water discharge, so many types of businesses are required to to obtain permits, said Reynolds, that the DEEP simply issues one general permit for all applicants. “Anybody who has a discharge has to register for it and comply with all the conditions,” said Reynolds. “What we’re alleging is that these entities do have storm water discharges and have failed to register. They’re basically discharging without a permit.”
Industrial storm water permits limit the amount of toxics from metals that can legally be discharged from a facility. By not even registering for a permit, the alleged offenders’ storm water runoff is not regulated.
The CFE is working alongside three other environmental organizations in the lawsuit – Save the Sound, Soundkeeper and the Conservation Law Foundation.
Reynolds said the groups were in discussions with some of the defendants to try to resolve the complaints.
“Storm water is really the biggest driver of pollution of our rivers and Long Island Sound,” said Reynolds. “As there’s more and more development, storm water becomes the driver of pollution and what we have to address if we want to clean our waterways for swimming, boating, fishing and ultimately drinking.”•