Episode 82 Transcript: COPPER DISCHARGE
CLARICE: Hello, everybody. And welcome to this week’s episode of Environmentally Speaking.
MARISA: Hi, everybody. I’m Marisa Desautel, an environmental attorney here in Rhode Island.
CLARICE: And I’m Clarice. I’m coming in with questions, topics, and this week, confusion because I don’t know what today’s topic is about.
MARISA: So please tell me that you at least read the headline that we’re going to be discussing.
CLARICE: So I have a basic overview, but I don’t have the details, so all of my comments will be pure comedy.
MARISA: So that’s where the confusion lies. It’s in the details.
MARISA: All right. Well, I looked at a news article on Providence Business News this past week. The article was authored by Jacquelyn Voghel and it was issued on May 23rd. So for those of you that want to —
CLARICE: Very recent.
MARISA: — go and read the article, there are the specifics. The article is about a recent lawsuit that was filed against a local company called Kenyon Industries. They are physically located in Richmond, Rhode Island which is the southern part of the state. And Kenyon Industries was sued by a non-government organization called Environment Rhode Island. If you had to guess, Clarice, what would an organization called Environment Rhode Island be involved with?
CLARICE: I think my answer is going to shock you a little bit.
MARISA: Okay. I’m ready.
CLARICE: I vividly remember when we first started working together there was a specific case that came in where an environmental group or an organization that called themselves an environmental group had a propensity for going around and suing different businesses for their assumption of environmental wrongdoings without any sort of foundation or cause or really any evidence. So they were just sort of going around and maybe policing without a lot of evidence. That’s what my gut is telling me, but I’m hoping that I’m wrong and these folks are done their due diligence and they’ve maybe done some research.
MARISA: Thanks for that background information. Not that I’d forgotten about that case that we worked on, but.
CLARICE: That case lives in my brain rent free.
[0:02:57] MARISA: Yeah. I’ve worked on a few cases like that and I recall the matter that you’re referring to and sadly you’re correct that this lawsuit that I’m referencing today is a lot like the lawsuit that you and I worked on so many years ago. And why is that? Well, I’ll tell you. The Federal Clean Water Act contains something called a citizen suit provision. What the hell does that mean. It means that if you are a citizen —
CLARICE: It’s like a citizen’s arrest.
MARISA: Yeah. Pretty much.
CLARICE: It’s only funny in sitcoms. Any other time it’s horrifying.
MARISA: There’s no arrest process in this citizen suit provision of which I speak. It would be very entertaining if there were, but the citizen suit provision has more to do with a citizen being able to sue someone that they believe is violating a term of the Clean Water Act. Why is this important? Apparently I’m going to be asking a lot of questions today and then answering them myself. It’s important because most federal and state environmental statutes allow for lawsuits of this type only brought by a designated party.
And usually that designated party is state government, federal government, the attorney general’s office or some other prosecuting agency like the Department of Justice. Through these citizen suit provisions, however, the federal legislature went through its bill drafting process and passed a section of law that allows private citizens an opportunity to sue companies and individuals if they can allege a violation of the Clean Water Act. What do you think?
CLARICE: I realize that this is an audio medium, so for folks at home I’m shaking my head side to side. I get that there’s a good intent, but I’m also from experience seeing that there is a wide space for error, interpretation, it to be used kind of any way somebody would want. Okay. I know the answer to my question. What’s the standard for making these allegations? I guess you can bring the suit and then it’s just a matter of in court is that evidence going to hold up.
[0:06:07] MARISA: Yes. Couple of moving parts there. As you know as a trained lawyer, the process by which a lawsuit is brought starts with the filing of a complaint by a plaintiff. You don’t have to plead every single fact under the sun because, number one, that’s not what the rule requires and, number two, there’s no way for a plaintiff to know all of the rules under the sun. That’s why there’s this discovery process where more evidence and testimony and information comes out.
So for purposes of filing the complaint, you only have to allege enough factual information to survive a couple of hurdles. And I don’t mean to minimize or make it sound like those hurdles are minimal because they are not. You have to prove one very important element, that you have something called legal standing. Do you remember what that is? You’re nodding.
CLARICE: I’m trying to figure out kind of a quick and easy definition and the only thing I can equate it to is kind of a jokey version of like do you have a leg to stand on. Do you have foundation. Do you have grounds to be here.
MARISA: Yeah. Yeah. That’s right. It does get pretty specific once you start getting all lawyerly, but for the most part, yeah, that’s right. You have to allege that you’ve suffered a harm, that the harm is specific to you as the plaintiff and that the harm was caused by the defendant. A lot of times when a complaint comes in the defendant will file something called a motion to dismiss and sometimes that motion to dismiss can be based on lack of standing and that’s what you’re talking about, a leg to stand on.
In this case what we’re talking about with Environment Road Island versus Kenyon Industries, Kenyon Industries — while the article in the Providence Business News doesn’t go into it, based on my experience my assumption is that Environment Rhode Island has at least one member in Rhode Island because it’s a nongovernment organization. It’s a for-profit organization, I believe, but people pay to be involved in it. And my assumption is that they have at least one Rhode Island member who is a resident or is somehow impacted by this particular Kenyon Industries location in Rhode Island, so it satisfies that legal standing requirement.
[0:09:20] CLARICE: This is the point in which I really want —
MARISA: To scream?
CLARICE: This is the point in which — yeah. Yeah, I do. I want to scream, but I would love — I’m going to look for a copy of the complaint today. I’ve just made the decision because —
MARISA: Exciting Friday for you.
CLARICE: When you say just because they live in Rhode Island, I need more to be affected.
CLARICE: Like I get proximity is important and this is not me making a legal argument. This is me just making a Joe Schmo argument.
CLARICE: You can’t just live there to be affected by it.
CLARICE: You need more than that.
MARISA: Yeah. You’re right. Right. And so that’s where —
CLARICE: And if I do want to tie it back, I’m going to cite the good old favorite Sierra Club.
CLARICE: You can’t just be in the area. You have to at least hiked the trail once and nobody hiked the trail, so Disney got to buy it. For any legal nerds, you’re welcome. For people who are not legal nerds, I am so sorry.
MARISA: Didn’t the dissent in that case take the opposite position of what you just said?
MARISA: I mean, we’re digressing right now, but.
MARISA: The Sierra Club is like the seminal case dealing with legal standing in an environmental matter.
MARISA: And the dissent said a tree can have standing.
CLARICE: Yes. It just said just being near the space is enough to be affected by the event.
MARISA: I tend to agree with the dissent in the Sierra Club case because —
CLARICE: And I clearly don’t.
MARISA: You do not. That’s okay. The Environment Rhode Island matter is different the case that you’re talking about, the Sierra Club case because since the Sierra Club case these non-government organizations like the Sierra Club have figured out that as long as they have at least one member who has actually hiked the area, owns property in the area, drank the water, breathed the air, did something connected to the real property that’s being impacted they can survive a challenge to legal standing.
MARISA: In this case, like I said, I’m assuming Environment Rhode Island has at least one member that they put forth as the individual plaintiff to survive the legal standing challenge. And that leads me to the next important point here about what was the case even about. When you hear something like Kenyon Industries you think, oh, they must have been polluting the river or polluting the soil or polluting the air. And in my mind I think they’re an industry. They must be polluting with, I don’t know, some kind of polluted process water. They must be discharging a pollutant into the atmosphere as a result of their industrial process.
[0:12:37] CLARICE: Uh-huh.
MARISA: You know, they’re making textiles. They’re dumping dye into the river, that kind of thing.
CLARICE: Yeah. I go to the big cartoon image of like a factory.
MARISA: So it is a textile mill in Kenyon, Rhode Island. Who knew there was a place called Kenyon in Rhode Island, but, again, it’s a village in Richmond. The suit alleges that since at least 2010 Kenyon Industries has repeatedly discharged into the Pawcatuck River, so there we go. There’s the discharge.
MARISA: But not the pollutant that I thought. They’re alleging that the discharge was of illegal amounts of copper.
MARISA: Copper. Like what kind of process creates copper as a byproduct? As it turns out it’s their wastewater treatment plant, so. Only I would find that funny.
CLARICE: Oh, wait a minute. So they’re treating — oh, wait. They’re cleaning a pollutant and this is a byproduct of the clean?
MARISA: So, yes.
CLARICE: Okay. That is a little funny.
MARISA: Yeah. The Pawcatuck River in this area goes right by Kenyon Industries which is a textile manufacturing facility, but they’re not discharging any of their byproducts from the textile manufacturing. They’re apparently discharging improperly treated wastewater. When you’ve got a commercial industrial building of this size and in this area, I assume there is no direct connection available to the manufacturing facility to the town’s septic system. I don’t know if Richmond has its own municipal wastewater treatment system, but in this case the Kenyon Industries building has its own wastewater treatment system which is a lot of infrastructure and not cheap.
MARISA: The complaint also alleges that despite Kenyon Industries’ attempts to upgrade its wastewater treatment system over the years since at least 2010, according to the complaint, the wastewater treatment system wasn’t doing enough to prevent copper from being discharged into the Pawcatuck River. It looks like this case is going to settle, meaning the Kenyon Industries representatives and the Environment America representatives were able to meet and negotiate and come up with a settlement arrangement that both parties could agree to as opposed to going forward to a trial. In this way Environment America the plaintiff is able to say, we’ve reached agreement, the environment is being protected. And Kenyon Industries can say, we’ve met the terms of the complaint that was filed by Environment America and everyone walks away unhappy but at least gets to walk away from a full-blown litigation.
[0:16:02] MARISA: What do we think?
CLARICE: So what was interesting is my very first thought was copper is what a lot of the drinking pipes are made out of. So I was like, what are the effects of copper. Where does the copper — you know, what are the alternatives. Obviously we shouldn’t be adding anything. You know, we kind of really shouldn’t be doing major changes to natural bodies of water, but I instantly started Googling, you know, what happens when copper gets added. What does that look like. So I kind of went down that rabbit hole first.
MARISA: What’s the answer?
CLARICE: Apparently in charge amounts it’s very harmful, but I think you could say that about anything, so it was pretty vague. Yeah. I don’t know enough about that. It looks like parts of the river down downstream have been designated as impaired bodies of water, so I don’t know if that’s directly related. Was it impaired beforehand. I’m sure it’s not helping the situation. I’m very curious about it. I’m very skeptical.
All right. Two sides of me. One, should we be dumping copper in the water, no, probably not. Is there a special situation where a scientist will come in and say, this water is polluted and maybe copper could come in and clean it up, sure. But that seems to be a very separate isolated event that a scientists would have to tell me what to do. Yes. Is there another event where I might be a little salty from having to deal with the case of an organization similarly where these groups come in and rampage, sue everybody —
CLARICE: — for harm that may or may not exist.
CLARICE: I’m trying to balance the good that was done versus sometimes the alleged like overturning a lot of rocks and causing a lot of ruckus. What are your thoughts?
MARISA: Similar to what you’re saying. I think the citizen suit provisions of federal statutes like the Clean Water Act are excellent in some cases. In other cases if you’re representing a client who is not actually discharging a pollutant, then it can be very frustrating because you’ve still got the burden of responding to these notices of intent from a citizen or an actual complaint filed from the citizen suit, so I have to say I agree with you. No, you don’t want copper discharged to a river or any water body.
[0:19:03] CLARICE: Uh-huh.
MARISA: And in this case the matter was not tried, so the facts behind what the wastewater treatment facility was actually doing are not available to me, so I have no opinion on the facts. Just speaking on behalf of the framework of the Clean Water Act I would say that those are my two main thoughts. It’s a good provision. Sometimes people abuse it. Shocking. That’s all I got today.
CLARICE: What’s that thing, even a broken clock is right twice a day.
MARISA: Yeah. Yeah. Yeah. Yeah. Yeah.
CLARICE: Yeah. I think maybe we’ll give it to them, this one.
CLARICE: Interesting. Interesting thing.
CLARICE: I wonderful the settlement — because if they are moving towards settlement my assumption is that they’re probably going to want to keep their settlement private, so we may not get to see how that shakes out.
MARISA: It looks like at least some terms of the settlement are not private. The article indicates that — at least what’s available to the public — the defendant is required to pay a $10,000 civil penalty and also $40,000 to the Wood-Pawcatuck Wild and Scenic Rivers Stewardship Council. And then the council will direct that money to projects promoting restoration. And the plaintiff’s expert worked with the defendant’s expert to figure out certain retrofitting activities they could undertake to make sure that the copper discharges were stopped.
CLARICE: Okay. Yeah. That’s a positive adjustment.
MARISA: Those are the public elements. I don’t know if there was anything else private.
CLARICE: And I like the fact that for once we get to see some sort of funding going towards something beneficial. Where does that bus emissions penalty go? But okay.
MARISA: Probably to the plaintiff’s attorney fees. No comment.
CLARICE: Well, then that’s our episode.
MARISA: That’s enough for today.
MARISA: Thanks, Clarice.
CLARICE: Thank you. All right. If you guys have any questions, comments, topics — tell us what you think of the idea of the civil suit provision. What are your reactions to this. Hit us up on the socials. We are on Instagram, Facebook, Twitter. Our videos are on YouTube. They are all under Desautel Law. If you want to e-mail us, it is Help@DesautelESQ.com. And with that, have a great week.
MARISA: Thanks, everybody.