USDA Forest Service Awards ASLF over $48,000 to plant trees for Stormwater Mitigation

Atlantic States Legal Foundation, Inc. (ASLF) will plant 200 trees on private, non-residential land in Syracuse through 2015. Sites will be determined based on the potential to increase canopy cover and manage stormwater runoff, and must be located in the City of Syracuse, within key Combined Sewersheds. Trees will be genetically native species that are cultivated with the patented “RPM” technology, which significantly speeds growth. This project will also provide training sessions for tree planting.

We welcome suggestions for candidate sites that meet our specifications, and call for participants in the planting training session. Please contact ASLF, or call 315.475.1170 for more details. The press release for this project from the USDA Forest Service can be viewed here: USFS Press Release


Green Infrastructure Project Constructed at Syracuse Church

New Large Rain Garden
New Small Rain Garden
New Porous Asphalt Parking Lot

ASLF and the Grace Episcopal Church have seen the final stages of a green infrastructure (GI) project come to a close. A black porous asphalt surface with white parking stripes has replaced a gravel parking lot and two new rain gardens filled with native plants adds vibrant colors to the front lawn of the building. The porous parking lot and rain gardens collect and retain stormwater runoff, preventing it from entering the combined sewer system, which causes raw sewage overflow into Onondaga Lake and its tributaries during wet weather.

The project was funded through a grant awarded by the Onondaga County Save The Rain Green Improvement Fund (GIF) to allow businesses and organizations to construct (GI) projects on their properties at low, or no, cost to the owner. The County’s intent of the grant is to raise awareness of the benefits of GI and reduce the amount of stormwater directed to the combined sewer system.

ASLF assisted Grace Church in the project’s initiation and development and brought the project to completion in collaboration with Natural Systems Engineering, Inc., an engineering consulting firm in Syracuse specializing in (GI) design. Upon completion, the project will divert a projected 300,000 gallons of stormwater from the combined sewer system. In addition to the stormwater management benefits, the project also removed the danger of falling ice in the previous parking lot and made significant improvement to the appearance of the space around the historic building and grounds.


Save the Rain Vacant Lot Program

First Harvest!
701 Oswego St. Site Completion!
The site shown here is completed and awaiting use!
701 Oswego St. Under Construction
Soil amendment was done on site to improve growing conditions of trees and shrubs for production of fruits.
701 Oswego St. Before the Vacant Lot Program
The site burdened the neighborhood with poor aesthetics, low property value, and poor sidewalk condition.

Much progress has been made on the Vacant Lot Program (VLP) since our last article. ASLF staff has designed a long list of candidate projects to be implemented this year and has developed much more of the program.

To briefly recap the VLP from our last newsletter, the City of Syracuse (City) is facing the challenge of more than 3,000 vacant lots within its city limits. These vacant parcels cause concerns about liability, safety, heavy littering, maintenance costs, and unpleasing aesthetics. Onondaga County has developed methods that will use green infrastructure (GI) on these lots to improve stormwater capture under the “Save the Rain” (STR) program. It is projected that, in the summer of 2012, eight to twelve lots will have GI added to the landscape, with the same number projected to be implemented each year until 2018, covering 20 acres for a total capture of nine million gallons per year. ASLF has been directed by the County to develop a vacant lot program that will focus on stormwater management while incorporating other benefits for the surrounding community.

New uses for vacant lots include: urban orchards or fruit gardens, vegetable gardens, ornamental gardens, and urban forests or tree plantings. While all sites have their individual qualities, all share the benefits of but are not limited to encouragement of economic development, aesthetic improvement, enhanced emotional wellness, increased habitat for urban wildlife, opportunity for green job creation and, of course, reduced stormwater in the sanitary sewer system.

The City Bureau of Planning and Sustainability has been working closely with ASLF to both plan improvements for the VLP parcels and revise the City’s wise management of scarce resources in the future. The City currently is finalizing its draft of the 2040 Comprehensive Development Plan which will include many programs involving deconstruction, open space management, and others that apply directly to the VLP, while also conserving resources for future generations.

Projects expected to be constructed in the coming months this year include W. Onondaga and Arthur St., 109 Hartson St., and 224-226 Putnam Street. These three projects all include tree planting and rain gardens. Being the first projects constructed, these sites were chosen for having a lesser amount of complexity than the other candidates. Establishment of these projects, to be considered pilots, will allow the STR-VLP development team to recognize strengths and weaknesses of the VLP before more complex projects are constructed. Many of the Autumn candidates will require outreach programs, detailed management, operations guidelines, and so on. Once finalized designs become available you will be able to view them on our website at

ASLF continues to develop the VLP program and plan for the coming years of continued VLP projects. While we continue to work on resolving ownership, operations, and management issues, ASLF is just as focused on ensuring the community affected by these projects receives the proper attention. The success of the VLP depends on a large amount of community interaction with, and approval of, the VLP project sites before and after construction.

ASLF staff is currently developing a plan for performing this outreach in the affected communities near the existing and future projects. Partnering with other City, County, and STR consultants will allow us to achieve our desired outcome.

Great Lakes Restoration Intiative

Project Summary

Onondaga County, New York, in collaboration with Atlantic States Legal Foundation, Inc. (ASLF) and City of Syracuse, filed the application for a grant under its Great Lakes Restoration Initiatives (GLRI) of USDA. This project was to focus on developing a plan to use urban forestry as a component…

Project Links

The following links provide deliverable products that were completed for the project.

GLRI Interactive Map of Potential Sites



GLRI Potential Sites in Priority CSO’s Details

Three Potential Site Designs




ASLF Takes on the federal Surface Transportation Board

On June 4, 2012 ASLF entered the fray in a very long running battle to protect the Adirondack Forest Preserve which is “forever wild” under Article 14 of the New York State Constitution with the Adirondack Committee of the Atlantic Chapter of the Sierra Club. ASLF filed a protest petition with the federal Surface Transportation Board to try to stop STB from giving the Saratoga and North Creek Railway (SNCR) common carrier status on the 30-mile private industrial spur that runs northward from North Creek to Tahawus. Nearly half of the spur is on a right-of-way easement on the Forest Preserve, the rest on easements on private land, taken by eminent domain by the federal government in 1942 in violation of Article 14 at which time the State went to court, appealing twice to the U.S. Supreme Court. The spur was auctioned to NL Industries (NL) by the federal government in 1989 and immediately abandoned in the same year. On November 4, 2011 NL sold the rails and easements to SNCR. STB approval means that the spur will become part of the national railway system and the Forest Preserve will be under preemptive federal jurisdiction. STB gave that approval on June 14, 2012. On June 25 ASLF’s Sam Sage and Sierra’s Charles Morrison countered with an appeal to SBT’s full Board on grounds described in the following news release. A final decision from STB is expected soon.

News Release on the subject

June 26, 2012
For immediate release                                Contact: Charles C. Morrison 518-583-2212

Decision Violating Forest Preserve on Tahawus Rail Spur Appealed

A June 14 decision by the federal Surface Transportation Board’s (STB) Director of Proceedings awarding common carrier status to the Saratoga and North Creek Railway (SNCR) for freight operations on the 30-mile Tahawus industrial rail spur was appealed on June 25  to the full Board by Charles C. Morrison, Project Coordinator for the Adirondack Committee of the Atlantic Chapter of the Sierra Club and Samuel H. Sage, President and Senior Scientist of the Atlantic States Legal Foundation (ASLF). Morrison and Sage asked the Board to rescind SNCR’s approval because its action in itself violated Article 14 of the New York State Constitution and authorized SNCR to violate it.

Sage said that “This rail spur has been in violation of Article 14 of the New York State Constitution, the “forever wild” provision, since 1942 when the Secretary of the Army used eminent domain to seize a right-of-way easement 13 miles long on the Forest Preserve and 17 miles over private property with  more than 30 owners to build the spur and lease it to National Lead to haul ilmenite, an ore containing titanium dioxide, from Tahawus. At that time, the State spent four years fighting this violation in federal court, appealing twice to the U.S. Supreme court.

Seventy years later, the State’s current position in support of SNCR rather than Article 14 has made chances of resolving this ongoing violation and illegal occupancy of the Forest Preserve worse than they have ever been. In the present situation the NYS Department of Environmental Conservation, legally the custodian of the Forest Preserve, with other State, Congressional and local officials chiming in, has become a part of the problem instead of part of the solution. By supporting SNCR’s Notice of Exemption before the STB in a March 19 letter, DEC has helped to ensure continuation of the Constitutional violation.”  Sage added that: “Pitifully, DEC and other public officials have sold out the Forest Preserve and the State Constitution in exchange for the possibility that a handful of jobs crushing and loading waste rock might be created next to the High Peaks Wilderness Area.”

In further explanation Morrison said: “The STB has ruled that resolution of the issues concerning the Forest Preserve and Constitutional violation is beyond its jurisdiction and should be resolved in State court. Such a case might hinge on whether the spur has been legally abandoned under State law. In that regard, NYS DOT and NL Industries has admitted in several letters that the Tahawus spur –which includes the easements – has been abandoned under Section 18 of State Transportation Law since 1989. Under the State’s common law on easements, abandoned easements immediately terminate, are extinguished and full title reverts to the underlying property owners.” Morrison added that: “The STB decision, which inserts federal jurisdiction and preemptory federal law into this situation, makes quite slim the likelihood that resolution of these real property issues will take place in State court as the STB itself has recommended.”

In their appeal, Sage and Morrison asked the STB to recognize that the Forest Preserve belongs to all of the people of New York State, not just the few State, Congressional and local officials that have lobbied STB to approve SNCR’s request.  They asserted that the STB’s award of common carrier status to SNCR for the Tahawus spur favors private interest over the public interest in the Forest Preserve and it would be in the public interest to rescind that award.

Morrison and Sage also stated that the Forest Preserve is a National Historic Landmark under the 1966 National Historic Preservation Act (NHPA) as amended and the STB acted without conducting a historic review that would have examined the impact of its action on this landmark.  Section 106 of the NHPA provides that disagreements about the need for historic review are to be settled by the federal Advisory Council on Historic Preservation (ACHP). The arbitration process, which still could put a “hold” on the STB’s June 14 decision, started last week with an initial exchange of information between ACHP and STB. Morrison and Sage asked the Board to allow time to let the Section 106 process work.

The full text of the June 4 protest petition by the Sierra Club and ASLF, and the initial May 17 Notice of Exemption by SNCR can be viewed on the STB’s website. Under E-Library, click on “Filings” > then on “Search by Parameters” > insert Docket # “FD 35631” on the 2nd line of form> then click “Search”. Follow the same path under E-Library > “Decisions” for the June 14, 2012 STB decision. The Docket Number for SNCR’s earlier Exemption case, running from October 25, 2011 to May 14, 2012, is FD-35559. In that case the appeal by SNCR took six  months using the same expeditious Exemption process, a process that STB has designed for noncontroversial projects. “Everybody knows by now that this is not a noncontroversial project,” Morrison said, “so why is STB using this process?”

Green Infrastructure Exhibit

New York State Fair Green Infrastructure Exhibition
ASLF set up a booth inside the NYSDEC building providing informational materials and video about green infrastructure and Onondaga County's initiative.
New York State Fair Green Infrastructure Exhibition
Sam checks in on how everything is going!

Atlantic States Legal Foundation has partnered with Onondaga County’s Department of Water Environment Protection and the Syracuse Center of Excellence to create an informational exhibit on Green Infrastructure. The exhibit highlights the importance of sensible stormwater management practices in Central New York. The exhibit is currently located at the MOST (Museum of Science & Technology) after having been exhibited at the Onondaga County Public Library’s Robert P. Kinchen Central Library on South Salina Street and the Hazard Branch Library on West Genesee Street, the Syracuse Educational Opportunity Center on New Street, and at the New York State Fair.

We expect to share the Exhibit with other public venues in our area to help provide information to local residents about the importance of stormwater management and hopefully inspire local students to seek careers in the sciences. If you are interested to have the exhibit placed in your location, please contact us.


Contact ASLF here

Urban Forestry for Stormwater Management

Impervious surfaces, damaged soils, brownfields and decreased vegetative cover challenge the city of Syracuse and most other urban environments. These built environments and altered landscapes increase stormwater runoff, degrade water quality and impair aquatic habitats.  Onondaga Lake and its feeder streams have a long history of water quality issues and environmental degradation due to years of industrial contaminant discharge, combined sewer overflows (CSO) and stormwater pollution. The Syracuse CSO system was designed to discharge excess flows during wet weather events into local waterways connected to the lake.  In 1988, ASLF initiated a lawsuit to stop Onondaga County’s violations of federal water pollution standards at its sewage treatment plant.

ASLF, New York State and Onondaga County agreed  to a Amended Consent Judgment (ACJ) requiring the county to improve its system of municipal wastewater collection and treatment and provide a schedule for attaining compliance with the Clean Water Act.  A federal Judge approved the ACJ in 1998 ordering Onondaga County to reduce and eliminate the occurrences of CSO discharges under the ACJ.  In 2009, a fourth amendment to the ACJ was approved and adopted to include a strategy which involved the use of both gray and green infrastructure approaches to control CSOs. This project is one of the many remedial (Gray/Green) measures in compliance with the new ACJ amendment and in response to public opposition to the county’s original “gray infrastructure only” approach.

ASLF has been implementing a green infrastructure approach through grants we have been awarded by the U.S. Forest Service through the Great Lakes Restoration Initiative (GLRI). These grants fund the exploration of a robust urban forestry system in Syracuse for stormwater management, as well as brown eld remediation (brown eld projects will be discussed in our next newsletter). ASLF has examined 519 private and publicly owned properties including residential parcels, vacant lots, parking lots, parks, open land/fields and wooded areas. The sites were evaluated for urban tree lots/forest development and stormwater management (BMP’s) opportunities. ASLF has identified about 250 public and privately owned lots and open land areas as potential sites for tree lots/ urban forest stands establishment and green and grey infrastructure development and management practices.  A survey is being developed to ascertain, from private landowners, their future use plans and potential interest in converting some of their vacant lot to urban forest plots, gardens and pervious parking.  Arrangements are being made to schedule discussion meetings with county and city personnel to prioritize opportunities for developing urban forests and other green infrastructure on some of the sites identified.

Contact ASLF here

Vacant Lot Program: 701 Oswego Street

First Harvest!
701 Oswego St. Site Completion!
The site shown here is completed and awaiting use!
701 Oswego St. Under Construction
Soil amendment was done on site to improve growing conditions of trees and shrubs for production of fruits.
701 Oswego St. Before the Vacant Lot Program
The site burdened the neighborhood with poor aesthetics, low property value, and poor sidewalk condition.


Much progress has been made on the Vacant Lot Program (VLP) since our last article.[1] ASLF staff has designed a long list of candidate projects to be implemented this year and has developed much more of the program.

To briefly recap the VLP from our last newsletter, the City of Syracuse (City) is facing the challenge of more than 3,000 vacant lots within its city limits. These vacant parcels cause concerns about liability, safety, heavy littering, maintenance costs, and unpleasing aesthetics. Onondaga County has developed methods that will use green infrastructure (GI) on these lots to improve stormwater capture under the “Save the Rain” (STR) program. It is projected that, in the summer of 2012, eight to twelve lots will have GI added to the landscape, with the same number projected to be implemented each year until 2018, covering 20 acres for a total capture of nine million gallons per year. ASLF has been directed by the County to develop a vacant lot program that will focus on stormwater management while incorporating other benefits for the surrounding community.


New uses for vacant lots include: urban orchards or fruit gardens, vegetable gardens, ornamental gardens, and urban forests or tree plantings. While all sites have their individual qualities, all share the benefits of but are not limited to encouragement of economic development, aesthetic improvement, enhanced emotional wellness, increased habitat for urban wildlife, opportunity for green job creation and, of course, reduced stormwater in the sanitary sewer system.

The City Bureau of Planning and Sustainability has been closely working with ASLF to both plan improvements for the VLP parcels and revise the City’s wise management of scarce resources in the future. The City currently is finalizing its draft of the 2040 Comprehensive Development Plan which willinclude many programs involving deconstruction, open space management, and others that apply directly to the VLP, while also conserving resources for future generations.

Projects expected to be constructed in the coming months this year include W. Onondaga and Arthur St., 109 Hartson St., and 224-226 Putnam Street. These three projects all include tree planting and rain gardens. Being the first projects constructed, these sites were chosen for having a lesser amount of complexity than the other candidates. Establishment of these projects, to be considered pilots, will allow the STR-VLP development team to recognize strengths and weaknesses of the VLP before more complex projects are constructed. Many of the Autumn candidates will require outreach programs, detailed management, operations guidelines, and so on. Once finalized designs become available you will be able to view them on our website at

ASLF continues to develop the VLP program and plan for the coming years of continued VLP projects. While we continue to work on settling ownership, operations, and management issues, ASLF is just as focused on ensuring the community affected by these projects receives the proper attention. The success of the VLP depends on a large amount of community interaction with, and approval of,  the VLP project sites before and after construction.

ASLF staff is currently developing a plan for  performing this outreach in the affected communities near the existing and future projects. Partnering with other City, County, and STR consultants will allow us to achieve our desired outcome.

[1] For those who missed our last article which introduced the vacant lot program in more detail please see our Autumn 2011 newsletter.




Progress made in Green Infrastructure Corridors

Water Street Green Corridor
Water Street Green Corridor



2011 was the first full year of implementation of the Amended Consent Judgment’s (ACJ) 4th Stipulation, and it was a remarkable year. In April, Onondaga County, with the City of Syracuse, was named one of the country’s Top 10 leaders in green infrastructure by EPA, and became the EPA’s “Green Infrastructure Partner” in promoting innovative green approaches to managing stormwater. By the end of 2011 the County’s ‘Project 50’ green infrastructure (GI) campaign completed 30 GI projects along with another 30 under construction, including several high-profile signature projects such as the 60,000 square foot green roof system at the Onondaga County OnCenter complex (one of the nation’s largest green roofs) and an innovative water re-use system at the War Memorial Arena that converts captured stormwater into ice for the Syracuse Crunch AHL hockey team. In late 2011, the National Resources Defense Council included Onondaga County as a case study for green infrastructure implementation in its publication Rooftops to Rivers II: Green Strategies for Controlling Stormwater and Combined Sewer Overflows.

Noticeably, construction of the 300 block of East Water Street GI corridor (formerly called Gateway), one of the two GI Corridor projects for which ASLF has produced conceptual designs, has been completed. This is the first GI corridor project that has been built. The design narrowed the street by having a designated parking lane while adding curb extensions (bulbouts) that form infiltration planters to capture stormwater. Pavers (pre-cast paving blocks) were used to surface the parking lane, and more infiltration planters run along the parking lane receiving runoff from the street and the sidewalk. The project was developed in conjunction with the private renovation of 323, 325, and 327 E. Water Street and is part of the long-term strategic vision for a green corridor along E. Water Street. The 2nd GI corridor project, West Onondaga Street Green Corridor, is under design phase assisted by ASLF and more GI corridor planning is on the way.

Contact ASLF here

ASLF Supports "Complete Streets"

The streets of our cities and towns are an important part of the livability of our communities. They ought to be for everyone, whether young or old, motorist or bicyclist, walker or wheelchair user, bus rider or shopkeeper. But too many of our streets are designed only for speeding cars, or worse, creeping traffic jams.

Now, in communities across New York, planners must establish a complete street design policy that safely and cost effectively facilitates access and improved mobility for pedestrians, cyclists, mass transportation riders and motorists of all ages and abilities. Such a policy benefits our environment through improved air quality, decreased traffic congestion and the preservation of our natural assets. Design features may include sidewalks, bicycle lanes, crosswalks, pedestrian control signalization, bus pull outs, curb cuts, raised crosswalks, ramps, and traffic calming measures. Everyone benefits, not only from the environmental advantages derived from a complete street policy, but from the health benefits associated with active forms of transportation.

“Complete streets design principles have been proven to reduce fatalities and injuries, and by taking them into consideration on future projects we will greatly improve the safety of pedestrians, bicyclists, and drivers of all ages and abilities. This new law will result in safer roadways and … will help save lives, prevent injuries, and make New York a safer place for all” said Senator Charles Fuschillo, Jr. (R-Merrick), the bill’s champion in the Senate.

ASLF supports our local planners and engineers as they improve street designs to incorporate the needs and safety of pedestrians, bicyclists, and users of mass transportation.


Contact ASLF here.


US – China Joint Watershed Project

Green Watershed (based in Kuming, Yunnan Province, China) and ASLF are working together on a joint project aimed at applying each other’s successful watershed management techniques to each other’s watersheds.  Green Watersheds, under the leadership of Yu Xiaogang, (winner of the 2006 Goldman Prize for Asia), has done exciting and productive work helping protect and improve various watersheds in China using methods that are vastly different from what we have been doing here in the Onondaga Lake watershed; now we are learning from each other.  Both Lashi Lake near Lijiang, Yunnan and Onondaga Lake in the Syracuse, NY area have been studied for many years to determine how to reverse decades of neglect and degradation resulting in lowered water quality and aquatic habitat.

Both communities contain a central lake valued by indigenous peoples, as well aswatershed areas that greatly contribute to the lake’s decline.  In absence of full commitment by government entities citizens have taken the initiative, but they are lacking technical ability in regard to water testing, do not have full involvement from the affected indigenous peoples, and require new stakeholder management. In the Lashi Lake watershed specifically, we hope to introduce more sophisticated scientific techniques for water quality testing and implement improvements to meet a desired upgrade from grade 3 to 2 (based on the Chinese water quality system, this upgrade would allow for the water to be treated for potability allowing an additional 300,000 urban residents access to drinking water) as well as expand an already successful stakeholder-driven management regime to include the input of an additional 40 villages (of Yi and Naxi indigenous groups) in the watershed.  In the Onondaga Lake watershed we will take cues from the collaborative management successes from Lashi and engage local resident stakeholders to create lasting consensus-driven management regimes, such as citizen planning entities, with a focus on ecologically and economically sound decision-making.

Another goal of this collaborative process is to foster a cross-cultural exchange of management techniques and strategies, the implications of which will be long lasting and have implications for other watersheds far beyond these geographic locales.  The end result of this work will be a significant improvement in the management strategies and water quality regarding the respective watersheds, as well as a new collaborative and holistic model for watershed management that could be applied elsewhere in the future.  In Lashi we will introduce better and more advanced scientific and technical approaches for testing water quality, as well as broaden the already successful collaborative management process that is in place.  This includes the purchasing of new equipment, training, staffing, as well as outreach efforts to incorporate the input of an additional 40 indigenous villages (Yi and Naxi) into the watershed management process.  On the U.S. side we will endeavor to determine what management goals can be accomplished through voluntary cooperation of the stakeholders and then see if consensus can be established to implement these goals. For example, a farmer-landowner group would be set up to assist in the implementation of improvements in the physical-chemical-biological integrity of receiving streams that now carry non-point pollution from land run-off and eroded stream banks.  Specifically we will provide significant outreach, including training and education, to a wide variety of stakeholder groups, urban and rural alike, each with varying interests in water quality and land-use.  A part of this process will include education and promotion of ecologically sound agriculture, fishing, development, and tourism such as that which has been successful in the Lashi Lake watershed.

Contact ASLF here.


ASLF Combines History and Environmental Design in Front Garden

A broken sewer line in front of the ASLF office, while causing headaches, has provided a unique opportunity for the progression of our landscape toward more sustainable ends.  Almost the entire front lawn had to be torn up in order to replace the pipe, and as a result we have been left with a veritable “clean slate”; perfect for a new garden.

ASLF’s office is located at 658 West Onondaga St. in a historic Victorian-era mansion that was built in 1883.  Known as the Silas Hahn house, the building changed hands several times, even serving as a mental health hospital at one point.  ASLF has decided to capitalize on this rich history by planning a representative planting scheme that would have been common outside of large Victorian homes in the late nineteenth century.

Our research will take us to various sources, including the Onondaga County Historical Society, for photos, sketches, plans, and descriptions of Syracuse gardens from this period.  While we may not find direct information about the past landscape of the Silas Hahn house, other representative designs are sure to reflect, to a certain degree, something similar to what was here.

Garden design in the late-nineteenth century was in a time of transition.  Still popular was the gardenesque style, which was based on highly formalized schemes focused on unusual, exotic plants arranged in geometric patterns.  The concept often centered on treating the garden as a collection of these non-natives and it was important that this stood out from the surrounding natural landscape.

In the 1880s and 1890s there was a growing interest in more naturalistic landscape schemes, with designers like Gertrude Jekyll becoming famous for her informal perennial arrangements and use of native plants.  ASLF envisions a design scheme for the front garden combining elements from both schools of thought.  We would like to create something, informed by any historical evidence we encounter, that is both gardenesque and naturalistic.  This will most likely be accomplished through a somewhat formally designed landscape that incorporates native plants.

Many of these natives will be species that are important food sources for endangered or threatened insects as designated by the New York State Department of Environmental Conservation.  These plants include, but are not limited to,, Blue lupine (Lupinis perennis), several species of native violet (Viola spp.) and Canadian cinquefoil (Potentilla canadensis).  Other plants we would like to include are milkweed (Asclepias tuberosa, Asclepias syriaca), Joe-pye weed (Eupatorium perfoliatum) as well as sedges (Carex spp.).

Another dimension to this project will be the incorporation of green infrastructure, namely a rain garden.  A rain garden is designed to collect and hold stormwater, allowing for on-site infiltration back into the water table.  Runoff from the roof of the ASLF office will be diverted into the rain garden, which will be built with a slight depression to allow for the capture.  The integration of this green infrastructure feature with the historic garden design will be what makes this project an exciting challenge.  We hope to initiate grading and planting this spring or summer.


Contact ASLF here.


ASLF Closely Involved in Onondaga Lake TMDL for Phosphorus

In March of this year, the New York Department of Environmental Conservation (DEC) released a draft Total Maximum Daily Load (TMDL ) for phosphorus for Onondaga Lake.  ASLF has been intimately involved in the development of this draft TMDL, and commented on both a pre-public release version and the official version released for public comment.  Our primary concerns with the TMDL include:

  • Lack of consideration of the Lake tributaries, which also have excess phosphorus
  •  Inadequate protection of native cold and coolwater fishes
  • Reliance on a phosphorus guidance value to protect aquatic life, that was developed only for recreation
  • Reliance on a recent ban on phosphorus-containing fertilizers, to sufficiently reduce non-point sources of phosphorus into the lake.

The public comment period is now closed, and DEC is developing a final version for approval by the EPA.  Stay tuned for more information.


Contact ASLF here.

Lake Ontario Organizing Network

In the spirit of working smart as well as hard, environmental organizations around Lake Ontario are continuing to support the development of LOON, the Lake Ontario Organizing Network. This network acts as a vehicle for enhancing the ability of the member organizations to work together. One of the goals of the groups involved is to develop cooperative or joint projects. Through the united support of multiple organizations, these projects have far a greater impact than projects under just one name.

ASLF is spearheading the next development phase of the Network by coordinating a LOON directory (with initial funding provided by the Laidlaw Foundation). This will involve a great deal of outreach to groups that have not participated yet and will give them an essential tool to use in their own communication efforts. Information about each organization will be listed on a separate page and all organizations will be thoroughly cross-indexed to increase the potential of the directory. Along with the directory, ASLF hopes to develop a database of issues and actions within the Basin.

By using the Directory, it will be efficient for organizations to connect with others working on similar projects and issues with these resources. Our goal is to foster a dynamic and current picture of environmental activity in the Lake Ontario Basin. We can do more when we work together.

Contact ASLF here.

Varna And Syracuse

Published: January 24, 2012

Varna, a city of 315,000, is both Bulgaria’s largest Black Sea port and a popular resort town.  Atlantic States Legal Foundation’s interest in Varna, however, is related more to problems of industrial pollution than to the natural and historical tourist areas.

The city of Devnya, located only a few kilometers west of Varna, provides a striking contrast with its large industrial complexes, which include power plants and a large Solvay process facility.  These industrial plants were located there to take advantage of the abundant fresh water offered by Lakes Gebedzensko and Vavnensko, as well as, for the easy access to the Black Sea via shipping canals which connect the lakes and the Black Sea.  As a result of this intensive activity, the lakes have become highly contaminated with industrial pollution.

The Solvay process, which uses large quantities of limestone (calcium carbonate) and brine (sodium chloride) to produce soda ash (sodium carbonate) and baking soda (sodium bicarbonate), creates tremendous amounts of waste.  In addition, further chemical processing plants, producing chlorine gas, caustic soda (sodium hydroxide), and numerous chlorinated hydrocarbons, become part of the overall operations, producing yet more waste.

Varna and Devnya’s problems are strikingly similar to those facing Syracuse, NY. Syracuse, located off the shores of Onondaga Lake, was for many years home to the largest Solvay Process facility in the world.  This plant contributed, in no small measure, to Onondaga Lake’s achieving the distinction as one of the most polluted lakes in the world.  Since ASLF has devoted a significant amount of time and effort in confronting issues arising from the pollution of Onondaga Lake, there is clearly a role for us in assisting groups such as the Public Environmental Center for Sustainable Development in Varna in dealing with similar problems.

Contact ASLF here.

Onondaga County Awarded Grants from U.S. Forest Service

Published: February 2, 2011

Using Urban Forestry as Green Infrastructure for Stormwater Management in Syracuse

ASLF assisted the Onondaga County Department of Water Environment Protection in submitting two grant applications, one of which utilizes tree plantings on four brownfield sites to control contaminated stormwater runoff and another aimed at urban forestry planning for green stormwater infrastructure.  The grants totaled over $300,000, and will be used in collaboration with Restoration Tree Trust of Synapse Partners LLC, the City of Syracuse, and Cornell Cooperative Extension of Onondaga County.

400 trees are to be planted for the Brownfield project, and a plan will be developed targeting the best areas for stormwater capture to support the County’s green infrastructure program. ASLF will be spearheading the urban forestry development process in both projects, and will be responsible for populating the chosen planting locations, aid in developing an urban tree nursery, and assist in using the project for carbon sequestration through a Geographic Information System analysis.

Both projects are still in the process of being completed.

Contact ASLF here

ASLF Continues Facilitating the County’s Green Infrastructure Program under ACJ

Onondaga County is proceeding further down the road to implement and promote green infrastructure (GI) projects in Syracuse in 2010, the following year after the Gray-Green program for combined sewer overflow (CSO) reduction was officially adopted. The County’s Green Improvement Fund program was released in April to pay the cost of GI projects on private properties. Four qualified green projects have been constructed this year. Four green parking lots, designed by the County’s GI team to use permeable pavement to replace traditional, impermeable asphalt, were also built.

Onondaga County also initiated and advanced a GI outreach program. The Environmental Finance Center was contracted to promote the County’s “Save the Rain” GI campaign, and the County purchased several hundred-rain barrels using federal stimulus money to distribute for free to the residents of the city’s Near West and South sides where CSOs are a problem for stormwater management.

ASLF continues its vital role in facilitating the County’s GI program. The County has accepted ASLF’s proposal of establishing Green Infrastructure Gateways in Syracuse to manage storm-water runoff, demonstrate GI technologies and beautify streetscapes. ASLF has conducted initial investigations and completed concept designs for two such gateway projects, the 300 Block of East Water Street, and West Onondaga Street from Onondaga Creek to Delaware Street. Both projects have been on the project list of the County’s GI plan, and the East Water Street gateway project is expecting to be implemented, along with 49 other GI projects, in 2011.

In collaboration with Synapse Partners, LLC and Cornell Cooperative Extension of Onondaga County, ASLF assisted the County in obtaining two grant awards from the U.S. Forest Service. One grant will enable tree planting on brownfield sites in Syracuse and the other, in which ASLF will take the lead on investigation, is to map out potential tree planting sites in the City which may significantly contribute to the County’s green infrastructure and CSO program.

Contact ASLF here

ASLF and South Africa

Atlantic States Legal Foundation made its first foray into Africa with an introductory visit to the Western Cape Province of South Africa. Our initial invitation was to participate in the joint program of Syracuse University and Stellenbosch University, however, once there, we were welcomed by a variety of people asking us to get involved with a variety of issues. The friendly people, combined with great environmental awareness, lead us to believe that useful long-term collaboration is possible.

Highlights of our visit were getting to know and work with Doreen Februarie who founded and runs the NOSIPHO Consultant that does human resource management and training.  One of NOSIPHO’s many projects includes working with roughly 150 youth in nine communities in the Province to train them for green jobs. See their website for more information.

Another major relationship developed between ASLF and several of the wineries in the area; one of the main wine producing areas of the world.  Many of these wineries own large tracts of land in the very unique and threatened botanical community called the fynbos. These wineries are working hard to protect and enhance these lands, provide access to them for flower tours, bird watching and other outdoor activities while expanding their potential revenue sources beyond just selling wine.  They have formed the Biodiversity and Wine Initiative ( and are pleased to be working with us, given our experience working on similar issues around the world.


ASLF Supports Local Farming Initiative


ASLF began working with local veterans of the Armed Forces in the spring of 2008 by hosting a team of four recent graduates of A Different Shade of Green, a green-focused workforce readiness program taught by the Cornell University Cooperative Extension of Onondaga County.

These volunteers spent four weeks at ASLF learning: plant identification, preparing the ASLF garden, pulling weeds, planting vegetables, building raised beds for plantings, and sifting the weeds and rocks from the soil removed from their creation of a rain garden near the vegetable garden, with the instruction and support of ASLF volunteer Alicia Radicchi.

Vetfarms is a pilot program, the first of its kind in CNY, created in 2008 by local veteran Tom Bryant as a means to provide veterans with the opportunity to earn a living growing vegetables for market in the peaceful therapeutic setting of working farmland.

After attending Beginning Farmers training at Cornell Cooperative in Syracuse, Tom set about the task of locating suitable land to farm. In northern Onondaga County new farmers donated a five-acre parcel for use, and its sandy loam soil allowed them to grow huge pumpkins, squashes, collard greens, turnips, brussel sprouts, cabbages and peppers.Veterans sometimes suffer from Post Traumatic Stress Disorder (PTSD) brought on by some of their military duties. It has been found that farming, nurturing animals, or growing crops relaxes and calms many veterans and increases their quality of life.

Many Veterans attended Cornell’s Different Shade of Green Veteran agriculture training program and the idea to create some enhanced training while partnering with local farmers became a reality. Vetfarms was born as a re-integration program for veterans wishing to learn farming and how to run a farm as a business owner. A second farm in Cicero became involved in 2010 and has helped train Vets in safe machinery practices, planting and harvest schedules, and proper market preparation of harvested crops.

It has been documented by the U.S. Department of Labor that the national average unemployment is about 9.3%, while for veterans it is 14.9%. Vetfarms is building a comprehensive plan to assist a population that has done much for our country; many veterans have grown up in rural areas and have the ready skills and drive to succeed at farming, and ASLF is supportive of these efforts to keep productive farmland in use for agriculture and away from other, less environmentally valuable development.

Tom has been active in community urban gardens since 1997 in Syracuse, Eastwood and Liverpool. He and his fellow veteran farmers helped the New American Center and several Veterans’ posts with the bountiful harvests from their farming in 2010 and hope to help even more people learn farming and profit from the experience as Vetfarms grows. It is their goal to grow into a vocational rehabilitation program recognized by the Veterans Administration. For more information e-mail Tom Bryant at

Contact ASLF here.


Dunbar Rain Garden Completed


A rain garden was installed at the Dunbar Association in October as the first phase of a long-term plan to incorporate green infrastructure at the facility with environmental education programs and the creation of green jobs.

Approximately 800 square feet of the center’s front lawn was converted to rain garden under a joint grant between Atlantic States Legal Foundation (ASLF) and the Dunbar Association funded by the NYS Department of Environmental Conservation. While ASLF and the Dunbar Association headed the project, multiple organizations collaborated to see the garden successfully constructed.

The garden will reduce the amount of storm-water flowing offsite, in addition to providing social and visual quality benefits.  It will also be a highly visible, low maintenance, experimental demonstration project that will test uncertain parameters, such as vegetation success and the rerouting of Dunbar’s rain gutters from the storm drain to the garden. This project can be incorporated into a larger green infrastructure network in the future. The rain garden’s location, shape, size, and planting choices were all carefully considered to reflect these goals.

Hope 4 Us Housing, a local contractor, used the garden as a green component of a construction-training program for under employed community members. Approximately nine local residents hired under the program learned the purpose and concept of the garden as well as its construction in a classroom setting, then excavated it by hand and amended the soil by mixing in free municipal compost. This was the first of what will hopefully be many job-training initiatives in Syracuse centered on the construction of green infrastructure.

The planting and mulching of the garden was incorporated into a larger after school environmental education program at the Dunbar Association for students 10-13 years in age, taught by ASLF’s Kerin Beth Rosen. To learn about native plants and green infrastructure’s role in reducing pollution in the environment, the youth planted a wide variety of native trees and perennials selected by and purchased from the Phoenix Flower Farm. Older students from Cornell Cooperative Extension’s Earth Corps program, with previous experience planting rain gardens, guided and assisted the younger students in proper planting methods. The result of these efforts is a garden rich in its diversity of plants and trees, which with future monitoring, will indicate the plants that do best in rain gardens in our geographically unique ecosystems.

Many important lessons have and will be learned through the construction of this rain garden. It is our hope that it will inspire local citizens and their governments to build better and greener infrastructure in the future. It is, however, only a jumping off point from which there is still much work to be done; it looks as if we are off to a good start.


Applying Great Lakes Lessons to the Black Sea

The Black Sea, which covers an area roughly the size of California, is the repository for the largest drainage basin of East Central Europe, draining, among others, the Danube, Dnepr, Dnestr, and Southern Bug Rivers. This drainage basin encompasses almost a third of the European landmass and is home to over 160 million people.

Aside from its sheer size, two principal features distinguish the Black Sea: its almost complete enclosure and its large dead zone. The Black Sea has a single outlet to the world’s oceans. The narrow (70m deep and 700m wide) Bosporus Strait that connects it to another almost completely enclosed sea, the Mediterranean.

This set of circumstances has led to the existence of the dead zone. As phytoplankton die and sink to the bottom of the sea, bacteria decompose them, a process which consumes much of the available oxygen. Because the process of replenishing the bottom waters with fresh oxygenated seawater from the Mediterranean takes centuries, a large anoxic zone has formed, leaving the Black Sea essentially devoid of life at depths of greater than 180 meters. Nevertheless, the top layer has historically supported a large diversity of marine life, with abundant fisheries.

However, in the past half-century, the Black Sea has experienced catastrophic degradation as a result of: (1) over exploitation of fish stocks, (2) heavy nutrient, sediment, and pollutant loading from tributary rivers, (3) introduction of exotic species, most notably Mnemiopsis leidyi (a jellyfish), (4) poor coastal development practices, (5) uncontrolled sewage pollution, (6) solid waste dumping, and (7) destruction of valuable wetlands.

These environmental insults have led to significant negative impacts, including: (1) massive blooms of phytoplankton from nutrient loading, (2) degradation of valuable littoral grasses, algal stocks, and benthic invertebrates essential for sustaining fisheries, (3) severe depletion of stocks of sturgeon, anchovies, and other commercially valuable fish species, (4) significant impacts to tourism, including beach closings, and (5) aesthetic degradation.

In an effort to address this degradation, the six countries that border the Black Sea (Romania, Bulgaria, Turkey, Ukraine, Russia, and Georgia), with funding from the Global Environment Facility and the European Union, created the Black Sea Environmental Program (BSEP) in 1993. The BSEP’s stated objectives are to improve the capacity of Black Sea countries to assess and manage the environment, to support the development of and implementation of new environmental policies and laws, and to facilitate the preparation of sound environmental investments.

The types of environmental degradation described above, with their attendant economic and social impacts, have also occurred within the U.S./Canada Great Lakes basin. There, the two nations have signed a water quality agreement, which serves as a framework for developing long-term water quality goals. Local and National Governments and NGOs have worked with international bodies, like the International Joint Commission (IJC), to address the complex systemic problems affecting the basin area. This framework for cooperation, under which numerous strategic remediation plans have been successfully developed and implemented, represents a potential model for the BSEP.

Under the Great Lakes Program, specific locations within the drainage basin where pollutants and human activities are impairing beneficial uses of the water body are designated as Areas Of Concern (AOCs). Once an AOC is identified, a Remedial Action Plan (RAP) must be prepared. The Program applies a multi-stakeholder approach toward achieving water quality objectives in the AOC, which often require remediation in the entire drainage basin. This holistic and integrated approach (involving the participation of two national governments and numerous state and private organizations) takes into account the interrelations and interdependencies of the AOCs while addressing basin-wide insults, such as contamination from long-range air pollution.

ASLF worked with institutions operating around the Black Sea that continue to solve some of the problems of the area. Initially we  limited our work to Bulgaria and Romania, where we have developed working relationships with many NGO’s, local governments, and other entities. The program will have two principal components:

  1. Technology Transfer and Problem Solving. American and Canadian specialists working on Great Lakes issues will visit their counterparts on the Black Sea, and vice-versa. The purpose of these exchanges will be for each group to understand the others management approaches to problems that affect both basins. Among the issues to be addressed are shoreline erosion, sewage treatment needs, protected area designation and management, industrial pollution, and port development.
  2. Knowledge Transfer/Education. We will prepare a multimedia exhibit on the Black Sea and its surrounding drainage areas in Romania and Bulgaria, illustrating the types of local, regional and international cooperation available for addressing and solving complex environmental issues. We are currently creating a display for the Year of the Ocean, which will highlight Black Sea environmental issues. The aquarium in Constanta, Romania will be among the first hosts for this exhibit; we are currently working to secure other exhibition locations. This transfer of information will increase awareness of Black Sea environmental problems.

Contact ASLF here.


The devastating floods along the Odra (Oder) River highlighted the value of riparian wetland areas such as Poodri (pronounced PO-ogee), which perform a natural flood control function. This 1,500-hectare area near the headwaters of the Odra, protected and administered by the Czech government as a Protected Landscape Area, follows the natural meanders of the Odra in the center of the so-called Moravian Gate. Poodri has been designated as a “Wetland of International Importance” under the Ramsar Convention, the international agreement governing the protection of wetlands. In addition to its flood-regulating function, Poodri provides a resting stop for a large variety of migratory birds.

Although proposals to channelize this area have been abandoned, Poodri remains subject to water quality impairments. A restoration plan for the Poodri (including its tributaries) has been drawn up, but this needs to be evaluated by an outside technical team. Furthermore, there is a need for GIS mapping and modeling of past and projected changes to aspects of the river corridor. Ideally, this would be carried out locally, using talents of the Protected Landscape Area staff, Friends of Poodri (an NGO), and students and faculty at the nearby University in Ostrava. Outside assistance will be needed to train these people and advise them on this work. Finally, assistance is needed to develop a plan for educating the public about the restoration project and involving them in its implementation.

In November 1997, two staff members of Atlantic States Legal Foundation spent several days in and around Poodri, and signed a letter of collaboration with both the Poodri administration and Friends of Poodri regarding these proposed projects. More recently, the Czech Ministry of the Environment agreed to fund the restoration of the Bilovka River, one of the main tributaries.

Contact ASLF here.

Otsego Lake

For nearly a year, Atlantic States Legal Foundation has been investigating citizen complaints about contamination of Shadow Brook and Hayden Creek, tributaries to Otsego Lake. Located southwest of Albany and southeast of Syracuse, Otsego Lake is perhaps best known for the town located at its southern end, Cooperstown.

Cooperstown, home to several museums, including the Baseball Hall of Fame, and the Glimmerglass Opera Company, is a popular tourist destination. Citizens in the Cooperstown area have been fearful for the continued safety of their water supply, which is drawn from the Lake. There is also reason for concern for the users of the beach at the state park located near the north easternmost part of the lake. ASLF is currently focusing on the latter problem.

We have been in contact with the New York State Department of Health and Office of Parks, Recreation and Historic Preservation, in an effort to make sure that there is enough water quality testing at the beach, which will ensure that swimming there is safe. Records indicate that what little testing has been carried out was not performed in a systematic fashion. This has changed since ASLF got involved with this issue. The Office of Parks began taking the matter more seriously and is implementing a more extensive testing program.

Water quality at the beach is of concern because it is near the point where Shadow Brook enters the lake. Neighboring the Park is a dairy farm owned by Richard Rathbun, whose cows are found in the Brook much of the time and are not in any way restrained from contaminating it. ASLF has put Mr. Rathbun on notice that we intend to bring a Clean Water Act citizen suit against him for his operation. The Clean Water Act requires concentrated animal feeding operations (CAFO’s), such as Mr. Rathbun’s to obtain a permit to discharge into a navigable waterway of the United States. In turn, the permit must put strict limits on contacts between cows’ wastes and the Brook.

ASLF has also been researching problems associated with Hayden Creek, which enters Otsego Lake to the west of the Park. This creek has historically been the receiving body for discharges from the unsewered village of Springfield Center. Until recently, numerous buildings in the village had failed septic systems, and it appears that almost none have been replaced. However, the creek also has along its banks numerous dairy farms at which the cows are unrestrained from wallowing in the water, as at the Rathbun farm.

During this past academic year, two students from the New York State College of Environmental Science and Forestry, Patrick G. Motel and Mark D. VanScoy, modeled this stream using computers in order to predict the effects of cows in the stream on the water quality at the point where the Creek enters Otsego Lake. Their results indicate that there are indeed pulses of fecal coliform along the Creek that correspond to farm locations; with further data on water quality and adjacent land use, much can be learned from this type of analysis. We intend to follow up on their work by examining whether the recently upgraded septic systems are sufficient to prevent water degradation, or if the village will indeed have to install a treatment system.

Work around Otsego Lake represents ASLF’s first foray into the realm of non-point pollution or at least non-permitted conventional pollution. We are upgrading our in-house capability to do water quality mapping and modeling and have brought our first legal action in this field.

We hope in the future to work on more problems like this one and will keep you informed of our progress. If you have similar problems and think we can be helpful in trying to alleviate pollution in your area, drop us a note or call and we can see about providing assistance.

Contact ASLF here.

EPA Lead Case Settled

As anticipated, Atlantic States Legal Foundation settled its lawsuit against the U.S. Environmental Protection Agency (EPA) in January, effectively forcing the regulatory agency to comply with a 1981 amendment to the Toxic Substances Control Act (TCSA). The long-ignored amendment requires EPA to promulgate regulations identifying lead-based paint hazards and lead-contaminated dust and soil, such regulations would specify factors, which contribute to risks to human health such as the nature of lead sources and the levels of exposure to different sources considered harmful. After the law was passed, EPA administrators and other policy makers concluded that the science necessary to produce the regulations was inadequate, and the rules were quietly shelved.

In 1995, ASLF was made aware of the fact that this law was not being implemented and served notice to the EPA of its intention to sue. In response, the EPA issued guidance on this issue in September 1995 (a Guidance has the power of a recommendation and cannot be used to bring about a legal action). EPA now has until November 30 to propose the regulations and must promulgate them by September 30, 1997. As part of the settlement, the EPA covered all of ASLF’s fees and costs.

Contact ASLF here.

EPA Ecojustice Grant

Environmental problems traditionally have been confined to rather narrow policy, science and legal contexts. Increasingly, however, activists are pushing industries and governments to incorporate socioeconomic, racial, and other factors into environmental regulatory equations. This movement called ecojustice or environmental equity strives to address environmental impacts, which disproportionately affect certain classes of people because of their economic status or race.

ASLF played a major role helping the Dunbar Center, a Syracuse not-for-profit community group, receive a $10,000 ecojustice grant from the U.S. Environmental Protection Agency (EPA) to research environmental equity issues along Syracuse’s Onondaga Creek. The polluted creek winds through a variety of lower income, urban neighborhoods, and represents a typical example of how disenfranchised people often absorb the lion’s share of society’s wastes.

The purpose of the Onondaga Creek Environmental Equity Project (OCEEP) was to empower residents affected by the Creek’s pollution, and help them play a more active role in local, state, and federal regulatory processes affecting their local environment. Toward the end, OCEEP, brought together a number of Central New York social, community and environmental groups and provided citizens numerous opportunities to become more involved in environmental and socioeconomic issues along the Onondaga Creek corridor. For more information on OCEEP, contact Samuel Sage.

Contact ASLF here.

SWEP Settles First Clean Water Case In Arizona

Acting with area environmentalists, ASLF’s Southwest Environmental Project (SWEP) settled its first case in the State of Arizona. The case brought against Huachuca Concrete Company, Inc., alleged violations of the Clean Water Act.

Huachuca Concrete is headquartered in Sierra Vista, Arizona, where they operate extensive sand and gravel extraction and processing facility on the banks of the Babocomari River, as well as, a concrete works on the Mustang Wash, which flows into the Babocomari, a tributary of the San Pedro River in Southeastern Arizona.

In its 60 day notice letter, SWEP, Roger Tabar and Concerned Citizens of the Babocomari, a subcommittee of the San Pedro Residents Against the Whetstone Landfill, Inc., alleged that Huachuca Concrete was violating the federal Clean Water Act (CWA) by destroying the banks of the Babocomari and dredging and filling the river’s channel. On numerous occasions, witnesses reported that Huachuca had driven heavy equipment into the river, filled it with debris, removed soil and changed the contours of the riverbanks.

Residents in the area also reported that containers marked “hazardous” or “toxic” had been discarded, and petroleum products had been seen spilled into the river. Area residents found numerous dead fish and birds in the river. Four months after Huachuca began its activities in the Babocomari in 1989, water stopped flowing altogether downstream of the company’s operations, allegedly due to the damage done to the river by the company.

The notice of intent to sue specifically charged that Huachuca had violated Section 301 of the CWA by discharging pollutants into the Babocomari without a National Pollutant Discharge Elimination System (NPDES) permit. In addition, the Notice Letter alleged a violation of Section 404 of the Clean Water Act, which requires that a permit be obtained where any dredge or fill material, would be discharged into a navigable waterway. Permits on such discharges, requiring review and comments from the government and the public, are important in cases where the fill brings the waterway into a use to which it was not previously subject, and where the flow or circulation of navigable waters may be impaired. This sort of serious damage to waterways may affect people’s health and impact their recreation and livelihood quite some distance from the dredged and filled site itself.

After months of lengthy discussions and meetings, the parties agreed to resolve SWEP’s claims without resorting to litigation. Under the terms of the settlement, Huachuca Concrete must develop a comprehensive restoration plan and submit it to the U.S. Army Corps of Engineers, which has authority over navigable waters. Before the plan goes to the Corps, however, SWEP will be allowed to review it and make suggestions. SWEP and area environmentalists intend to do everything possible to ensure that the restoration plan adequately cleans up the river and restores the native vegetation.

In addition, Huachuca agreed to pay SWEP’s attorneys fees, costs, expenses, and the future costs of commenting on the restoration plan and of monitoring compliance with the restoration plan. “We’re very happy that SWEP is starting to make a real difference on the Arizona environmental scene,” Samuel H. Sage, ASLF President, said. “We want SWEP to be a major player in enforcing federal and state environmental standards throughout Arizona and the Southwest.”

Contact ASLF here

ASLF Continues Role Developing Stewardship Indicators for Lake Ontario

One of the directives of the Great Lakes Water Quality Agreement of 1987 was to develop a set of water quality objectives for the Great Lakes. The Ecosystem Objectives Work Group (EOWG), made up of representative from New York State DEC, EPA, Environment Canada and Health & Welfare Canada, has been given this responsibility. One of the objectives developed by the EOWG is to make sure that “human activities and decisions shall embrace environmental ethics and a commitment to responsible stewardship.”

Responsible environmental stewardship can be defined as the ability of humans to manage their impact on the environment in such a manner as to allow for the most effective use of resources and ecosystems, while at the same time allowing for the sustainable growth and protection of those resources and ecosystems.

In order to measure the U.S. and Canada’s progress toward achieving responsible stewardship on Lake Ontario, the Stewardship subcommittee has been charged with the duty to develop a number of statistical and informational indicators through which a sense of the level of society’s stewardship of the lake can be measured easily, cheaply, and at regular intervals.

On May 13 and 14 of 1992, ASLF and the U.S. EPA held a Public workshop and conference to develop and affirm a number of stewardship indicators for the Lake Ontario Basin. Representatives attended the Buffalo conference from both the United States and Canada. Members of public and environmental interest groups, corporate representatives, members of the stewardship subcommittee, academics and employees from the EPA, New York State DEC, Environment Canada, and Health & Welfare Canada were present to discuss stewardship issues. ASLF staffers present were President and Senior Scientist Samuel Sage, attorney Ed Cooper, staffer and conference organizer Ron Henry, and intern Matt Petras.

The public workshop provided an opportunity for the stewardship subcommittee members to share their ideas and thoughts on the stewardship indicators that had been developed to that point, and allowed the representatives from industry and the public to add ideas and comments and to suggest possible sub indicators to the list of stewardship indicators already under development. At the time of the conference the subcommittee had been considering and working on the following indicators:

Stewardship “motivators”: this information will measure the extent to which people believe they should engage in responsible stewardship.

Stewardship “intentions”: this information will measure the extent to which people express a sense of commitment to responsible stewardship.

Stewardship “behaviors”: Two sub indicators have been developed to measure actual stewardship behaviors: corporate volunteerism and environmental volunteerism.

Stewardship “barriers”: these measure the extent to which people perceive they are prevented from acting on their commitment to stewardship by various other forces.

The Toxic Release Inventory (TRI) list indicator: this will examine computerized TRI data from the government’s Right to Know legislation, in an effort to provide information that can be used to compare quantities of pollution, as an indicator of industrial stewardship behavior towards the environment.

Toxicant Loss: this will provide an estimate of the amount of a toxicant lost to the environment during use, disposal, and breakdown of manufactured products.

Population Data: although not an indicator per se, this information will be gathered for the Lake Ontario Basin in order to correlate population density with indicators in order to more accurately assess trends measured in the other indicators. As one might expect, decreased stewardship behaviors might tend to be loaded in areas with dense populations, urbanized industrial areas.

Atlantic States staffers will continue to work specifically on the toxicant loss and TRI data indicators, and will also be attempting to develop a set of population data for the Lake Ontario Basin.

As a result of the discussion at the conference Atlantic States will have certain objectives for each one of the projects. For the toxicant loss indicator it will be necessary determine if previous studies of this type have the potential to indicate stewardship. It will be necessary to find a more specific sub set of the TRI data that will better illustrate stewardship and it may be necessary to compile a set of economic statistics in order to be sure that stewardship is the reason behind any decreases in toxicant release. With regard to population data it will be necessary for census information to be gathered and to determine the best way to divide the Lake Ontario Basin in order to accurately determine the population in the basin.

We’re confident that these statistical tools will enable government and public interest groups alike to determine what steps need to be taken next to better care for the health of Lake Ontario.

Contact ASLF here.

ASLF’s New "ACE"

Atlantic States agreed to sponsor two young attorneys to start up an environmental poverty law project in Boston.  The project, called Alternatives for Community and the Environment (ACE), will focus its efforts on finding solutions to environmental problems which the economically disadvantaged and people of color experience in their daily lives.  Charlie Lord and Bill Shutkin, both University of Virginia law graduates, will staff the project.  ACE should be up and running by September and will be headquartered at the Boston College Law School, which has generously donated office space and some in‑kind services.

The Echoing Green Foundation, located in New York City, has funded the ACE project with a two‑year grant.  Lord and Shutkin will work with neighborhood groups in the Boston area and expand the project later, if resources permit.  “The ACE project will focus on a growing problem,” Shutkin said, “Namely that of poor people and people of color ending up with a disproportionate share of environmental problems because of their lack of resources. We want to help tip the balance back in their favor.”

ASLF is very pleased to sponsor and be a part of Lord and Shutkin’s project.  Besides giving us a stronger presence in New England, they will deal with issues and problems that ASLF has plenty of experience with.  Environmental equity for all citizens, regardless of economic status and education is an emerging national issue and ASLF want to help find solutions that will contribute to a healthier environment for all neighborhoods.

Contact ASLF here

Citizen Suit Achieves Stricter CWA Oversights on Heap Leach Mines’ Pollution Sources

NPDES: Permits to be Required of Discharging Mine Sites

On a spring morning in 1991 residents of Boulder Canyon, five miles downstream from Brohm Mining Corporation’s Gilt Edge Mine near Deadwood, South Dakota, awoke to the smell of deadly cyanide wafting from Bear Butte Creek.

For the residents it seemed like a case of deja vu. The gold mining company and state officials quickly assured residents, as they had several times before, that the creek, frothing with mine process solutions, didn’t pose a threat to human health. Such assurances, however, were beginning to wear thin and residents wanted the pollution of the creek stopped. With similar incidents at other streams, Ruby Gulch and Strawberry Creek, residents resolved to take action to stop the pollution by heavy metals, chemicals, and acidity.

The spring 1991 incident was perhaps the worst of a string of discharges of cyanide and metal contaminated solution from the “heap leach” mine’s processing and waste disposal facilities. The Rapid City, South Dakota based group Technical Information Project (TIP) began to gather information on these discharges to creeks running through the mine property, and asked Atlantic States Legal Foundation to assist them in their efforts. TIP is a non-profit organization addressing regional natural resources and industrial development issues in the Northern Plains.

Together, the groups filed a citizen suit under Section 402 of the Federal Clean Water Act against Brohm Mining Corporation, and its parent corporation Minven, alleging the mine was discharging into surface waters from point sources without a permit issued under the National Pollution Discharge Elimination System.

Although the Environmental Protection Agency had not required NPDES permits in the past for surface mining/heap leach operations, the recent initiatives have forced them to take a closer look at NPDES permitting in the mining industry.

After almost a year of negotiations, the settlement that TIP and ASLF reached with Brohm and its parent company was one the two environmental groups feel accomplishes their goals. Additionally, last November the U.S. EPA issued a “Findings of Violation and Order for Compliance” document to the mine, an aggressive enforcement order. Under this order, the company will be required to obtain and abide by a NPDES discharge permit, as well as follow a four year timetable of clean up operations at the mine site and its associated creeks and run offs. The fact that the company ceased mining operations at the site due to exhaustion of ore reserves last winter makes the situation no less serious; mining by products and on going polluted runoff from the site will continue for some time.

Deb Rogers Miller, the president of TIP, draws parallels between the South Dakota mine and hundreds of other mines across the nation. “The situation at Brohm mirrors what’s happening at many mines in many states. The case has already set a nation wide precedent.” TIP plans to keep a close eye on the situation at the Brohm mine to assure the EPA’s order and the suit settlement provisions are followed. EPA’s issuance of a draft discharge permit for the Gilt Edge site in April was reviewed by both TIP and ASLF, and both groups submitted comments on ways to strengthen and improve the permit.

“The mining industry has gotten away with a lower level of environmental regulation for too long,” Samuel H. Sage, ASLF President and founder, said. “This case will force them to follow the same regulations that every other industry must follow.” This toughening of EPA’s mine enforcement policy can only benefit citizens all over the country.

Contact ASLF here.

Atlantic States Prevails In Protracted Litigation Against Universal Tool

After almost six years of litigation, Federal District Court Judge William Lee decided Atlantic States Legal Foundation v. Uni­versal Tool and Stamping Co., on March 13, 1992. Judge Lee assessed a penalty of $450,000 against the polluter.

In September of 1986, ASLF notified Universal Tool, an auto­mobile parts manufacturer in Butler, Indiana, of its intent to sue for repeated and ongoing violations of the Federal Clean Water Act (CWA). A Complaint was filed in federal court in April 1987, alleging more than 2,000 Clean Water Act violations, including repeated excessive chromium and zinc discharges.

Conferences, interrogatories, and depositions followed, and, in April, 1990, the Court granted Atlantic States’ Motion for Partial Summary Judgment on the question of Universal’s liability. That decision, reviewed in our March 1991 Newsletter, was an important victory for citizen plaintiffs under the Clean Water Act. The decision clarifies the limitations in the Act concerning government preclusion of citizen enforcement actions, and has since then been widely cited by environmental plaintiff attorneys.

The most recent decision addresses the question of penalties to be assessed against a violator. This decision serves as notice that, even absent proof of environmental degradation (proof difficult to come by), dischargers violating the Act will nevertheless is penalized for their violations.

History of the Case

Over the course of a year and a half, ASLF put together a case to show that Universal Tool should pay a sub­stantial penalty to the U.S. Treasury for num­erous violations of the CWA. In fact, all through this period Universal Tool continued to violate its permit, despite its having eliminated metal plating from its operations in late 1989.

In preparing for trial, ASLF’s environmental engineer Donald Hughes spent many hours review­ing documents describing Universal’s treatment plant as it evolved over the years. He visited the plant and collect­ed several wastewater samples. Sediment samples were also collected from the ditch into which Universal discharged, and were analyzed for a variety of heavy metals, as well as cyanide and ammonia. The sediments collected just downstream of Universal’s outfall were heavily contaminated with zinc, chromium, and oil and grease.

Atlantic States’ case was built around three basic propositions:

  • That Universal saved a substan­tial amount of money by not installing adequate pollution control equipment.
  • That Universal severely de­graded water quality and the aquatic habitat in the ditch and points downstream.
  • That Universal did not make a “good faith” effort to comply with the requirements of the CWA.

To present its case at the trial, Atlantic States brought in five witnesses. In his capacity as senior scientist, Samuel Sage testified about the violations shown in Universal’s Discharge Monitoring Reports (the monthly reports which indicate the actual quantities of pollutants in the discharge). He stated that based on these figures he had calculated a maximum penalty of about $26 million, according to the EPA’s published guidelines. Staff engineer Don Hughes briefly testified regarding the sediment data, but spent the majority of his time on the stand providing an assessment of Universal Tool’s wastewater treatment plant, concluded that Universal should have installed an ultra filter in 1984 to treat dissolved oils.

Next, Fred Menz, an economics professor from Clarkson College took the stand, presenting an economic analysis, which showed Universal Tool had saved several million dollars over the years by not installing the ultra filter system. Finally, Philippe Ross, a professor of biology and specialist in sediment toxicology, testified that the sediments downstream of Universal’s discharge point were toxic to aquatic life. Both sediment data and water quality data collected by the State of Indiana confirmed that Universal’s wastewater adversely affected the environment.

Universal Tool, represented by Milford Miller of Miller, Carson & Boxberger, brought forward six witnesses, including the county land surveyor; former Universal Tool company president Norman “Buck” Ritenour, two water quality experts from IT Corp., an ultrafiltration “expert”, and Universal Tool’s engineering consultant, Fred Krikau. Atlantic States’ final “rebuttal” witness was Peter Cartwright, a recognized authority on ultra­filtration technology. The entire trial, which took place in the Federal District Court building in Fort Wayne lasted a total of five days.

Effects of the Decision

The United States Environmental Protection Agency (EPA) cited this new Atlantic States v. Universal Tool decision in a “friend of the court” brief filed in the Ninth Circuit Court of Appeals on behalf of the Washington Public Interest Research Group against an alleged water polluter. The EPA brief refers to the Universal Tool decision for its statement that:

“A Substantial penalty reduces the likelihood that polluters will choose accepting the risk that non compliance will go unpunished… The amount of the civil penalty must be high enough such that the penalty does not merely become a cost of doing business. If not, it becomes more profitable to pay the penalty rather than incur the costs of compliance.”

Atlantic States believes the decision will further clarify the liability of water polluters and demonstrate that citizen suits are an important means for enforcement of the Clean Water Act. Indeed, as acknowledged by Norman Rittenour, then President of Universal Tool, it was Atlantic States’ Notice of Intent to Sue, not the efforts of the Indiana Department of Environmental Management that moved Universal to undertake compliance efforts.

Atlantic States thanks attorney Richard J. Kilsheimer of Kaplan & Kilsheimer for his ongoing diligence trying this case. In addition, we are indebted to the citizen activists of Ft. Wayne, Indiana, especially Jane and Tom Dustin, whose commitment to cleaning up their city brought the problem to light in the first place.

Contact ASLF here.


ASLF Reaches Settlement with Puerto Rico Electric Power Authority

After many months of negotiating, ASLF has finally reached an agreement with the Puerto Rico Electric and Power Authority (PREPA) acceptable to both parties and the Federal Department of Justice, and will bring to a close protracted settlement discussions over violations of federal water discharge permits.

In 1991, research into alleged violations of provisions of the Clean Water Act led ASLF to serve PREPA with notice of intent to sue over violations of their NPDES permits that govern effluent standards specifically into bodies of water at four of PREPA’s power plants: Palo Seco, Aguirre, Guayanilla, and San Juan.

Under the terms of the settlement, PREPA will give $425,000 to the Fundacion Puertorriquena de Conservacion (Conservation Foundation of Puerto Rico) to oversee the acquisition of sensitive watershed lands and to fund studies of the three bays damaged by PREPA’s discharges: Jobos, Guayanilla, and San Juan. The studies of the bays will be geared toward protecting valuable resources and restoring productivity. The work will augment existing studies of the Puerto Rico Department of Natural Resources, the US Fish and Wildlife Service, the Environmental Protection Agency, and the National Oceanic and Atmospheric Administration.

Some of the research monies will also go to the Water Environment Federation Research Foundation for studies aimed at improving the energy efficiency of wastewater treatment facilities in Puerto Rico. ASLF will also undertake a fish and mussel tissue study in San Juan Bay, thereby allowing regulatory agencies to better characterize the extent of toxic contamination.

As a result of the settlement, PREPA was working with the Environmental Protection Agency and is committed to correct the problems that caused them to be out of compliance with their permits. ASLF retains a role in monitoring the compliance activities and will receive and comment upon all enforcement and permitting materials initiated by the Environmental Protection Agency, as well as performing regular inspections of the four power plants.

This settlement, together with additional compliance work being undertaken by the Environmental Protection Agency, shows that there is finally a commitment to restore and protect these valuable coastal bays of Puerto Rico. ASLF is happy with the outcome of the action against PREPA, and pleased that the company has showed interest in becoming a good environmental citizen. This case proves once again how concerned citizens can make a difference in cleaning up our nation’s waters.

Contact ASLF here.

Atlantic States Launches Puerto Rico Bay Program

Expanding on previous efforts to preserve the aquatic environment in and around Puerto Rico, Atlantic States Legal Foundation launched an effort to protect three bays on the island.

The Jobos Bay National Estuarine Research Reserve is a sanctuary on the south shore of the island. Jobos Bay supports a least four populations of endangered species: the West Indian Manatee, the Green Turtle, the Hawksbill Turtle, and the Yellow Shouldered Blackbird. Additionally, according to the US Fish and Wildlife Service, the Bay is the only known location in the entire central and southern Caribbean Region to support the sea grass Halophila Englemanni. Jobos Bay has been designated as a Critical Area for Endangered Wildlife, and as an area of natural, environmental and cultural importance (Puerto Rico Coastal Zone Management Program, 1978). Ringed by mangrove trees, this fragile ecosystem has been long stressed by the impact of human activity on the island, most notably thermal pollution originating from the Puerto Rico Electric Power Authority (PREPA) Plant located on the bay. This plant discharges more than one half billion gallons per day of waste water into this delicate estuarine environment.

Guayanilla Bay is likewise impacted by heavy industry. Some time ago, Atlantic States was asked by residents of the village of Guayanilla to investigate a reduction of the fish populations relied on by local fisherman. Guayanilla Bay is the receiving water for approximately one half billion gallons per day of waste water from the South Coast PREPA generating plant.

San Juan Bay was extremely contaminated, long taxed by the impact of industry and an antiquated PREPA generating plants discharging hundreds of millions of gallons of waste water per day into the bay. Were it not so heavily polluted, the bay could be a major recreation resource for local residents.

A review of Discharge Monitoring Reports indicated a history of serious and ongoing violations by PREPA at four of its power generating plants. On April 29, 1991, Atlantic States put PREPA on Notice of Intent to Sue for violations of the Federal Clean Water Act. Atlantic States cited violations of waste water permit limitations for a wide range of pollutants, including arsenic, cadmium, lead, zinc, excessive temperature, silver, oil and grease.

Atlantic States’ Notice prompted dialogue with PREPA to address the environmental degradation of these tropical bays. Representatives of Atlantic States toured the power plants, and are discussing with PREPA a potential settlement designed to mitigate environmental damage to the bays. Under consideration are proposals for PREPA to fund a number of projects, including acquisition of delicate bayshore areas for management by local environmental organizations, an island wide energy conservation and education program, pollution prevention projects, and endangered species research.

Contact ASLF here.

Suit Filed Against South Dakota Gold Mine

In association with the Rapid City, South Dakota, organization Technical Information Project (TIP), Atlantic filed a complaint against the Brohm Mining Corporation for alleged violations of the Clean Water Act.

TIP and Atlantic States Legal Foundation claim that Brohm has been discharging pollutants into tributaries of the Bear Butte Creek without a NPDES permit. As Brohm operates an open pit gold mine and cyanide heap leach operations at their facility, these illegal discharges result in serious potential for pollution in the creek’s waters.

Notice was sent to Brohm over a year ago of our intent to file suit over this issue, and both TIP and ASLF had hoped the matter could be settled efficiently. While some progress has been made toward an agreement, no final resolution was reached with the mining company.

TIP, whose executive director is Deb Rogers Miller, hopes a potential agreement will achieve a number of environmental goals. She feels it should protect environmental groups’ rights to participate in negotiations between Brohm and the Denver office of the U.S. Environmental Protection Agency whenever the company must obtain a new permit. Those familiar with Atlantic States know we have long advocated the right of environmental groups to contribute to the government’s process for issuing permits.

In addition, TIP hopes significant penalties against Brohm will signal to the mining industry just how serious citizens consider violations of the Clean Water Act. EPA is reviewing their policy in response to this case and may reconsider how they monitor and handle Clean Water Act violations by this industry in the future. If so, this case will set an important precedent in making the mining industry comply with the same environmental laws that apply to everyone else.

For further information about environmental and industry policy issues in the High Plains states, you may contact Ms. Miller of TIP at:

Technical Information Project
P.O. Box 1371
Rapid City, South Dakota 57709
(605) 343 0439

Contact ASLF here.

ASLF Continues RTK/EPCRA Sweep in Wisconsin

As we reported in our Summer 1991 Newsletter, ASLF recently initiated significant enforcement efforts in Wisconsin under the Emergency Planning and Community Right‑to‑Know Act (EPCRA).  In the past few months, these initiatives have produced some dramatic results.

Section 313 of EPCRA requires all companies that manufacture, process, or otherwise use any of roughly 320 chemicals in excess of threshold amounts, to report such use to the EPA and the Emergency Response Commission in the appropriate state.  EPCRA authorizes citizens to bring suit against companies who fail to comply with this requirement.

Of the 42 companies that received notice of our intent to sue, ten adequately explained their failure to file.  In most of the remaining cases, however, the companies have admitted statutory violations and have entered into settlement negotiations with ASLF, represented by Milwaukee attorney Dennis Grzezinski.

These negotiations provide a forum for ASLF to achieve the goals of the initiative  EPCRA compliance, toxic use reduction and pollution prevention.  Using the statutory penalty for failure to file as leverage, ASLF encourages the firms to spend the bulk of the penalty dollars on more environmentally friendly measures (i.e. alternative processes, reuse/recycling options, and changing to cleaner raw materials and technologies).  Further, in lieu of penalties, ASLF strongly recommends cash payments to environmental groups and/or emergency response officials within the damaged community.  Finally, in order that settlement terms not excuse the violation of the law, a penalty to the U.S. Treasury must still be paid.

Ideally, the program will produce results in several areas: general statewide EPCRA compliance; increased technological and process innovations; continued monitoring by ASLF and others to ensure that settlement terms are met, implementation of pollution prevention studies, and ultimately reduction or elimination of toxic chemical use and resultant toxic pollution.

In 1992, seven of the Wisconsin cases settled. A summary of the settlements reveals just how effective EPCRA can be:

In the first consent decree ever entered in Wisconsin under the citizen suit provision of EPCRA, Pfister & Vogel Tanning Co. of Milwaukee agreed to spend $45,000 to conduct and implement a toxic use reduction/waste minimization study at its facility.  Further, P&V paid $2000 to the Local Emergency Planning Commission (LEPC) in Milwaukee, as well as $4000 to local environmental groups.

-Communication Products Corp., a manufacturer of speaker compon­ents based in Lancaster, will spend $50,000 in settlement of its EPCRA violations for (1) purchase and installation of an acetone catalytic oven and oxidizer; (2) study of reducing methanol use, reuse/recycling options, and emission controls; and (3) toxic use reduction study geared toward other toxins in use at the facility.  CPC will also pay $11,000 to Wis­consin Environmental Decade for energy efficiency, pollution preven­tion, or recycling work; $6000 to the Madison Audubon Society; $2500 to the Grant County LEPC; and $3000 to the U.S. Treasury.

-Silgan Containers Corp., of Menomonee Falls, will pay $248,000 to the U.S. Treasury, subject to the following terms and conditions: the company will be credited $116,000 for undertaking a tox­ic use reduction/pollution pre­vention study of its fac­ilities, and up to an additional $125,000 if specified toxic use reductions are achieved.  The company will also spend $7,000 to train employees on Section 313 reporting, and will make total contributions of $90,000 to sev­eral environmental groups.

-Outlook Label Systems, Inc., of Neenah, WI, signed a consent decree negotiated with ASLF whereby they will pay $12,000 for a toxic use reduction study and total elimination of tetrachloroethylene at its facility.  In addition, $2000 to the Winnebago County LEPC, and $1000 to the U.S. Treasury.

-Flexcraft, Inc., of Milwaukee, will spend $6000 for a pollution prevention study de­signed to eliminate its use of tetra­chloro­ethylene.  If the company is unable to elim­inate such use, then up to an additional $4000 will be paid to the U.S. Treasury and the Greater Milwaukee Toxics Minimization Task force.

-KDV Label, Inc., of Wau­kesha, will pay $8900 to the U.S. Treasury, subject to a credi­t of $8400 if they elim­i­nate the use of tetra­chloro­ethylene and n‑butyl alcohol as solvents at their facility.  Fur­ther, the company will pay $3600 to the Wisconsin De­part­ment of Natural Resources to be used for habitat res­tor­ation or development at the Vernon Marsh Wildlife Area.

-Premold Corporation, a plas­tics manufacturer in Oconomowoc, will eliminate its use of methyl­ethyl­chlor­ide, except in its painting op­er­a­tions.  They will also con­trib­ute to a 1993 Confer­ence on Science in the Public Interest at the University of Oregon.

Each settlement provides that the defendant will pay the plaintiff’s attorney fees and expenses, as required by EPCRA, plus monitoring costs necessary to ensure that all settlement terms are met.  Defendants must document all actions taken pursuant to settlement.  Where agreed terms are not met, the original penalty amount is reinstated and must be paid in full to the U.S. Treasury.

Contact ASLF here.

Administration Threat to Citizen Environmental Enforcement Put Off

Atlantic States Legal Foundation led environmental coalition succeeded in March of 1991 in heading off an expected attack by the White House, via the U.S. Justice Department, upon the right of cit­i­zens to enforce the Emergency Planning and Community Right to Know Act of 1986. The quickly mobilized effort was aimed at convincing Environmental Protection Agency (EPA) Administrator William Reilly either to halt the Justice Depart­ment action, or at least publicly to break ranks with the White House directed scheme that would undermine the two decades old right of citizens to file suits enforcing federal environmental laws. Such citizen suits, a key provision in EPCRA, the Clean Water Act, and a dozen other federal statutes, form the heart of much of Atlantic States’ efforts nationally.

The Justice Department’s threat stemmed from two pioneering lawsuits by Atlantic States against the Buffalo area manufacturers Whiting Roll Up Door Manufacturing Corp. and Buffalo Envelope Company. The cases began as part of an EPCRA compliance sweep in Erie County begun more than two years ago by then staff counsel, and now outside counsel, Charles M. Tebbutt.

Whiting and Buffalo Envelope are the first decisions nationally in which citizens won affirmation of their legislated right to impose civil penalties against companies which violated EPCRA. As such, they have attracted interest both pro and con. While both cases were poised for argument concerning penalty amounts, word filtered down that the White House had directed Justice to file an amicus curiae, or “friend of the court,” brief on behalf of industry, challenging EPCRA citizen suits on constitutional grounds.

Justice was expected to make the following dubious argument, “Since the companies were easily able to file EPCRA’s required toxic chemical release and other reports after notification from ASLF, but still before the mandatory, pre-lawsuit, 60 day waiting period was up, the issue was effectively moot. There would be, in other words, no penalty (and thus no deterrent effect) for getting caught breaking federal law.” The federal district court judge in Buffalo, in deciding the Whiting and Buffalo Envelope cases, has previously rejected this line of argument.

In protest, ASLF and the Washington D.C. organization Working Group on Community Right to Know lined up 24 national and local environmental organizations to either co sign a letter to EPA head Reilly or submit separate letters. Three days later, the assigned Justice Department attorney wrote the federal district court to say the agency had changed its mind about filing “an amicus brief at this stage in the litigation.”

This newsletter went to press more than two months later, however, there is still no direct response from Reilly, raising a big question about whether EPA will in the long run retreat from its long standing support of the complementary citizen suit process. On May 15th, Charles Tebbutt made further argument in court concerning the question of constitutionality in these cases. Finally, it should be noted that Whiting Roll up Door is still in flagrant violation of the EPCRA law.

Contact ASLF here.

Remaining Ft. Wayne Enforcement Efforts Wrapped Up

In 1986, the United States Environmental Protection Agency (U.S. EPA) underscored the magnitude of pollution resulting from industrial discharges to mun­icipal sewer systems across the coun­try. EPA estimated that the daily flow of 3.2 billion gallons of industrial waste­water into municipal plants na­tionwide carried with it 62,000 tons of metals and 37,000 to 52,000 tons of pri­ority organic pollutants. It is widely be­lieved that most of the toxic pollutants in this influent simply pass through the treat­ment works altogether, and are dis­charged into our nation’s rivers and streams.

In our Winter 1991 Newsletter, we re­ported on our efforts against a num­ber of polluters discharging to the Ft. Wayne, IN, sewage treatment plant. The last of these citizen enforcement actions has recently been concluded, largely wrapping up (for the time being) our program of citizen enforcement in that city. After a brief review of the program, this article summarizes the out­come of that year long effort.

Since 1987, sewage sludge originating from the Fort Wayne sewage treatment plant has been accumulating at a rate of 7,000 tons per year at a storage site on the Maumee River Flood plain. This sludge is heavily contaminated with cyanide, cadmium, zinc, and other toxic pollutants believed to have or­ig­inated from industry discharging to the plant. In addition, millions of gallons of partially treated industrial wastewater pass through the plant into the Maumee River every day.

Acting on requests from activists in Fort Wayne, ASLF uncovered an extensive history of Federal Clean Water Act violations by a number of industries discharging their industrial wastewater to the Fort Wayne sewage treatment plant. Subsequently, Atlantic States put twenty industrial discharges on notice of intent to sue for Clean Water Act violations.

ASLF notices of intent to sue compelled a number of Fort Wayne industries to install “closed loop” wastewater recirculation systems, elim­inat­ing altogether the discharge of wastewater to the municipal plant by these companies. As a result, enforcement actions were dropped against these companies.

Complaints were ultimately filed in Federal court against eleven of the larger dischargers. After much maneuvering, lengthy litigation was avoided in all eleven cases, with a wide variety of settlement arrangements to address Atlantic States Legal Foundation’s  causes of action:

Five Settlements explicitly mandate process changes, pollution prevention studies, and installation of additional wastewater treatment technologies. Other settlements are sure to have some of these effects as a matter of necessity.

Eight settlements resulted in penalty payments to the United States Treasury totaling $174,460.

Four settlements mandated non charitable payments, in lieu of additional penalties, to the Nature Conservancy in Indiana, totaling $80,600.

Nearly all of the settlements in Fort Wayne require that discharges supply ASLF with discharge monitoring reports for some time to come. This will enable ASLF to follow up on, and assess the outcome of, the Fort Wayne effort. This information will also enable ASLF to enforce “stipulated penalties,” penalties payable in the event of future violations. Stipulated penalties were agreed to in eight of the eleven settlements.

Finally, the polluters reimbursed ASLF for the costs of maintaining these enforcement actions.

The terms of a settlement under the citizen suit provision of the Clean Water Act must be approved by the United States Department of Justice (DoJ) and EPA before the arrangement can be approved in the Federal Court overseeing the action. Penalty payments to the United States Treasury are viewed by DoJ and EPA as vital for their deterrent effect. Those agencies will seldom approve a settlement that does not include such a penalty.

Payments to the Indiana Nature Conservancy are considered payments in lieu of additional penalty, and must be approved by DoJ and EPA. In our Fort Wayne settlements, these payments are ear­marked for the Conservancy’s “Fish Creek Project.” That project is an effort to preserve the Fish Creek watershed, which supports the sole remaining habitat of the endangered White Cat’s Paw Pearly Mussel. The Pearly Mussel, once found throughout the Maumee River, is now on the federal endangered species list. While the Pearly Mussel’s existence is threatened by water pollution, it is hoped that the Nature Conservancy’s efforts will improve the water quality of the Maumee and the watershed, and that the Mussel will be able to make a comeback.

Atlantic States intends to continue enforcement efforts against industries discharging to municipal sewer systems across the country. Industrial discharge to municipal sewage treatment plants is a major source of water pollution and deserves everyone’s attention. If you’d like to learn to research pollution at your municipal sewage treatment plant, give us a call.

Contact ASLF here.

Atlantic States Continues Enforcement Efforts in Fort Wayne, Indiana

Acting on requests from a number of its mem­bers in Indiana, Atlantic States Legal Foundation began inves­ti­gating pollution problems at the Fort Wayne Water Pollution Control Plant in December of 1989. A review of the monthly discharge reports of Fort Wayne industries discharging to the Plant revealed an extensive history of Clean Water Act violations by almost one quarter of those industries.

For decades, the Fort Wayne Water Pollution Control Plant was able to distribute valuable, nutrient rich sewage sludge, a by product of sewage treatment, to Fort Wayne farmers and garden­ers for use as a fertilizer. This program was halted by the United States Environmental Protection Agency in 1987 when it was deter­mined that the sludge contained high levels of heavy metals, including cadmium and zinc, and other toxic contaminants.

This sludge was accumulating at a rate of 7,000 tons per year at a storage site on the Maumee River Flood Plain. Fort Wayne activists examined this problem and stated publicly that Fort Wayne’s toxic pollution problems ran deep, declaring the need for tougher enforcement.

Following their review of “pretreatment” files [see sidebar pg. 2, “Industrial Pretreatment and the Clean Water Act”] at the Fort Wayne Water Pollution Control Plant, Atlantic States staff re­turned to Syracuse with discharge data supporting citizen en­forcement actions against twenty of Fort Wayne’s most egregious pretreatment violators. Subsequently, Atlantic States put twenty pre­treaters on notice of its intent to sue for Clean Water Act violations.

ASLF actions prompted a meeting behind closed doors among representatives of the industries who had been put on notice, the City of Fort Wayne, and the Indiana Department of Environmental Management (IDEM), to discuss strate­gies for derailing ASLF enforcement efforts. The Clean Water Act provides that if a polluter is already facing “dili­gent” enforcement by government, then a citizen suit may be precluded. We believed that the objective of this meeting was to develop a strategy for precluding our enforcement efforts after the fact, with slap on the wrist settlements between government and the polluters.

Were it not for a keen Atlantic States’ member who blew the whistle on this dubious meeting, government and industry in Fort Wayne might have succeeded in colluding to defeat the intent of Congress in authorizing citizens to sue to enforce the Act, with the public no wiser and again left out in the dark.

These events whipped up a frenzy of debate in Fort Wayne. Newspaper articles likened Atlantic States attorneys to eastern vigilantes swaggering down shuttered streets to a showdown with polluters; a series of letters to the editor not coincidentally written by an industry engineer misrepresented and slandered Atlantic States, calling its staff “notorious mercenaries” who “lined their pockets” with money “blackmailed” from poor, helpless industries. Needless to say, the hyperventilated letter writer offered no evidence to back up his charges. Later, more balanced letters and editorials from other Fort Wayne citizens rebutted his claims, and affirmed that ASLF’s actions were proper, and in fact necessary, for the good of the city.

As of press time, ASLF enforcement actions have compelled a number of Fort Wayne pretreaters to install “closed loop” wastewater recirculation systems, eliminat­ing altogether the discharge of wastewater to the municipal plant by these companies. Other larger dischargers are negotiating with Atlan­tic States to settle its Clean Water Act lawsuits in terms in­volving significant penalties for past violations, penalties in the event of future violations, and mandated improvements in wastewater treatment. Since Atlantic States’ involvement began, significant discharge pollutant non compliance in Fort Wayne has nearly ceased.

In addition, a number of settlements resulted in payments to the Indiana Nature Conservancy totaling over $20,000.00, ear­marked for the Conservancy’s Fish Creek Project. That project was an effort to preserve Fish Creek, sole remaining habitat of the White Cat’s Paw Pearly Mussel. The Pearly Mussel, once found throughout the Maumee River, is now on the federal endangered species list, its existence threatened, like many freshwater mussels, both by water pollution and by the pearl button industry. It is hoped that one day the Maumee River will again be clean enough to support the endangered mussel<F128M>.

Contact ASLF here.

Lakewide Management for Lake Michigan

ASLF  received a $75,000 grant from the Joyce Foundation to assist in the development and implementation of a Lakewide Management Plan (LMP) for Lake Michigan. This project will help ensure that the ambitious objectives of the Great Lakes Water Quality Agreement (GLWQA) are translated into an effective, enforceable plan.

The crucial goals of the GLWQA are working towards the achievement of zero discharge for persistent toxins and developing ecosystem objectives to be used in making management decisions. LMPs should incorporate both of these concepts into broad-based plans to restore and protect whole lake systems.

Although Lake Michigan was the first of the Great Lakes for which a LMP will be developed, a prototype LMP has already been devised for Lake Ontario.  This plan, called the Lake Ontario Toxic Management Plan, contains many of the same concepts which are essential to a LMP.  These include: the identification of critical pollutants, mass balance modelling and remedial planning.  Atlantic States has been involved with the development of the Lake Ontario plan over the past four years. We will apply this experience to the Lake Michigan LMP.

This project will have two major areas of focus.  The first is working with citizens and agencies to incorporate the zero discharge concept in the day-to-day regulatory decisions of the current permitting process under the Clean Water Act.  The second is to prepare a Citizen’s Resource Guide that will help individuals better understand and participate in the development of the Lake Michigan LMP. This guide is to include a directory of environmental groups, and state and federal agencies.

The long-term beneficiaries of a well-designed and implemented LMP for Lake Michigan are the people who rely on the lake for drinking water and edible fish.  Agriculture, fishing, recreation, and tourism are all predicated on the availability of clean water and a healthy, esthetically attractive ecosystem.

The Joyce Foundation is a major funder of projects to protect and reclaim the Great Lakes ecosystem.  This grant covers the first year of a two-year initiative.

Contact ASLF here.

Atlantic States Completes First Year of Joyce Project

In August 1990, the Joyce Foundation awarded Atlantic States funds for a project focusing on the Lake Michigan Lakewide Management Plan (“LaMP”). This project, under the direction of staff engineer Don Hughes, was recently extended for an additional year through September 1992. This work consists of three major components:

  •  Assist the development of the LaMP; Atlantic States’ President Samuel Sage serves on a Lakewide Advisory Council (“LAC”), set up to allow direct citizen involvement;
  • National Pollutant Discharge Elimination System (“NPDES”) Permit Workshops and Comments: Don Hughes and Samuel Sage conducted many work­ shops around the Lake Michigan basin last summer. At each workshop we described the LaMP process, as well as NPDES permit issues. The workshops stressed citizen involvement in the NPDES permitting process.

Atlantic States has assisted other groups and individuals in commmenting upon permits in each of the four states surrounding Lake Michigan. Please contact Don Hughes at Atlantic States if you are interested in the permit renewal process for a Lake Michigan Basin facility in your community.

  • The Lake Michigan Citizen’s Resource Guide is a manual we have prepared to inform citizens about environmental issues confronting the lake. The guide puts special emphasis on the LaMP itself and discussions of toxic substances. Atlantic States has distributed 200 copies of the first edition. Based on comments from the recipients, we hope by early 1992 to have a revised edition ready to distribute in future workshops. Please contact Don Hughes if are an Atlantic States member and wish to receive a copy of the guide.

Contact ASLF here.

Settlement Reached with Reynold Metals Co.

In an important step towards zero discharge of toxic pollutants into the Great Lakes, Atlantic States Legal Foundation and the State of New York have reached an agreement with Reynolds Metals Company of Massena, New York, concerning their discharge of poly­chlorinated biphenyls (PCBs) into the St. Lawrence River. Working with the New York State Department of Environmental Conservation (DEC), Atlantic States compelled Reynolds to undertake a compre­hensive PCB discharge abatement program.

In 1988, New York State pathologists discovered the presence of PCBs in wastewater which entered the St. Lawrence River from the Reynolds aluminum plant. Consequently, Atlantic States filed a complaint in federal district court seeking an end to the PCB discharges, alleging that the company was violating the federal Clean Water Act. The State of New York joined in the litigation and sued Reynolds under the New York State Environ­mental Conservation Law.

In February 1991, Atlantic States, New York State Attorney General Robert Abrams, and Reynolds concluded litigation with an agreement that mandated Reynolds undertake an aggressive program to eliminate its discharges of PCBs into the St. Lawrence River and monitor its wastewater and stormwater discharges, utilizing state of the art PCB analytical techniques and bio-accumulation tests. In addition, Reynolds agreed to pay a total of $420,000, to be distributed as follows:

  • pay $245,000 to N. Y. State, $70,000 of which will be used by DEC for continued monitoring of discharges from the Reynolds facility in Massena
  • pay $70,000 to the Akwesasne Task Force on the Environment, to develop a pilot aqua culture project to raise fish in cages in the St. Lawrence River
  • pay $50,000 to the St. Regis Mohawk Tribe for monitoring of water and sediments in the Massena area
  • pay $30,000 to SUNY Research Center at Oswego for analytical equipment
  • pay $25,000 to the American Clean Water Project, Inc. to assist with biological studies and interpretive programs along the St. Lawrence River

Significantly, the settlement forced Reynolds to reduce its discharge of PCBs to below detectable levels, and eventually to cease PCB discharges altogether. The monitoring efforts contained in this agreement should advance the state of the art when it comes to measuring low concentrations of PCBs. The agreement requires the use of congener specific PCB analyses, as well as monitoring bioaccumulation of PCBs in fish. More importantly, Reynolds must actively work to reduce its PCB discharges to below detectability, using a combination of wastewater treatment (filtration and activated carbon) and on site remediation. This is the only way to ensure that PCB discharges are virtually eliminated.

The settlement sets a precedent for using “citizen suits” to enforce the goals of the Great Lakes Water Quality Agreement, which includes “zero discharge of persistent toxic substances.” PCBs are both highly persistent and extremely toxic, and have been identified as a “Critical Pollutant” in the Great Lakes.

Charles Tebbutt, attorney for Atlantic States Legal Foundation, stated, “the conclusion of this litigation marks a triumph for citizens pursuing the goal of zero discharge of toxins into the Great Lakes Basin.” Noting that the Water Quality Agreement itself contains little in the way of enforcement provisions, Tebbutt added, “the enforcement provisions of major environmental laws must be brought to bear if we are to guarantee a legacy of clean water for our children and our children’s children.”

The state Attorney General’s office applauded Atlantic States’ efforts. Assistant Attorney General Dean Sommer hailed the use of citizen suits by concerned citizens “as a vital supplement to the enforcement efforts of the state, still reeling from budget cuts and staff shortages.”

Contact ASLF here.

Atlantic States Settles Case With Bristol-Meyers and Onondaga County

On November 4, 1991, ASLF filed a Consent Decree with the U.S. District Court in Albany, N.Y., formalizing a settlement with Bristol Meyers and Onondaga County that has been well over a year in the making. According to the terms of the settlement, Bristol must comply with the following measures:

  • complete a sewer consolida­tion pro­ject which will combine seven sep­arate outfalls into a single discharge point
  • hire an independent consultant to perform a wastewater pretreatment/pollution prevention study
  • fund a study by Onondaga County that will develop pretreatment standards concerning volatile compounds (such as acetone, methylene, and chloride), in order to make improvements to the Metro sewage treatment plant
  • provide funds for Atlantic States to monitor compliance with the levels of its wastewater discharge permit
  • cover the legal fees and costs of Atlantic States and its attorneys (True, Walsh, and Miller of Ithaca, NY) incurred while carrying out this citizens’ enforcement suit

The county, in addition to the study mentioned above, is also required to revise Bristol’s discharge permit to reflect tighter limits on phenols and pH.


Bristol Meyers operates a pharmaceutical facility located in East Syracuse, N.Y., which produces penicillin and other antibiotics in large quantities. This plant discharges about one million gallons per day of high strength wastewater to the “Met­ro” sewage treatment plant owned and operated by Onondaga Coun­ty. Although Bristol’s wastewater constitutes less than two percent of the total flow, it accounts for about twenty percent of the nitrogen, ten percent of the phosphorus, and twenty percent of the suspended solids entering the plant each day. Much of this pollutant loading could be avoided if Bristol Meyers pretreated their wastewater, or modified their industrial processes so that so many pollutants did not enter the wastewater in the first place.

Shortly after Atlantic States served notice of their intent to sue Bristol, Onondaga County proceeded to revise their discharge permit (the legal license that sets limitations on various pollutants in wastewater) by removing limits on nitrogen and phosphorus the plant had violated. In effect the county attempted to bring Bristol’s discharge into compliance with the law by simply issuing a more lenient permit.

In December 1989, Atlantic States filed a formal Complaint against Bristol Meyers that reaffirmed the accusations contained in the notice letter, and also cited the numerous chemical spills which have entered the municipal sewer system. Such spills endanger both the Bristol plant and the public owned treatment facility downstream. Susan Brock, the attorney representing Atlantic States, said, “Over the next several months we tried, in vain, to convince the county to restore Bristol’s original permit limits. They refused, and in August 1990 we named Onondaga County as a co defendant in the case.”

Settlement Terms

Three major issues formed the basis of these lengthy negotiations: in plant improvements at Bristol Meyers’ facility, a pretreatment study to determine the best method of processing the water before it enters the sewage system, and a study to determine enforceable but environmentally reasonable limits on volatile compounds in the wastewater discharge.

Altogether, Bristol Meyers expects to have spent some $3.2 million upgrading their tank farm, installing new neutralization facilities, and consolidating their sewer lines measures that should have been in place all along. Any funds left over from the pretreatment study will go to Save the County, a local land preservation group, for the purchase and protection of sensitive wetlands in the Onondaga Lake watershed.

Atlantic States will receive funds explicitly for the purpose of monitoring and enforcing the terms of the settlement, insuring Bristol’s compliance with the terms. This includes attending progress meetings and reviewing in detail the results of the mandated studies, which should be available from the consultants no longer than eighteen months from the filing of the consent decree.

We are optimistic that, after review by the U.S. Department of Justice, the judge will sign the decree by January 1992.

Contact ASLF here.

Settlement Money to Protect the Puerto Rico Plain Pigeon

The Puerto Rican Plain pigeon, Columba inornata wetmorei, is one of the most endangered bird subspecies in the United States. Although once abun­dant across much of Puerto Rico, by early in this century it had become rare, and by the 1930’s was considered extinct. In about 1960, a small population of this bird was discovered near Cidra (just outside metropolitan San Juan) and now in and about the cities of Cidra and Cayey dwells an estim­ated popu­lation of around 200 birds.

Although the bird breeds throughout the year and can suc­cessfully nest three times a year, growing development in the prime habitats around Cidra, and illegal hunting and poaching of the squabs, keep the population from increasing. The University of Puerto Rico at Huma­cao has established a captive breeding program, and public interest in the pigeon has increased. Notably, a group called Fundacion Para La Conservation de La Paloma Sabanera was recently established to champion the bird’s cause. With the help of funds from settlements of Atlantic States legal actions in Puerto Rico this organization is moving ahead with a major cam­paign.

The Fundacion has amassed a detailed knowledge of the areas used by the birds for nesting, preening, resting, and feeding. Funds will assist in purchase of much of the prime territory necessary for the birds’ survival. In addition, the Fundacion hopes to launch an educational effort to engage the assistance of the general public in their efforts. Most Puerto Ricans are unaware of the presence of this species as it is often confused with the common Red necked Pigeon, Columba squamosa.

In a related effort Atlantic States worked with an organization that tries to protect Lake Cidra from eutrophication. This waterbody is located in the midst of the fast growing, sprawling Cidra area and was so over fertilized that it was hard to tell that there was water under the weeds! The Comite Despertar Cidreno was organized to work on this problems.

Actually the fate of the pigeon and of the lake are linked. Unplanned development in the area threatens both. Cidra is a choice location for development, located high above the coastal torpor yet very accessible to San Juan and the rest of the island.

Atlantic States’ efforts in and around Cidra exemplify our interest in protecting the environ­ment by working with dedicated local organizations. Those wishing to find out more about these projects can write to us, or directly to the two organiza­tions mentioned. To write to the Fundacion, contact Raul A. Perez Rivera, Departamento de Biologia, Proyecto Paloma Sabanera, Colegio Universitario de Humacao, Estacion Postal C.U.H., Humacao, Puerto Rico 00661. Or write to the Comite care of Eliezer Colon Rivera, Apartado 123, Cidra, Puerto Rico 00639.

Contact ASLF here.

Setting The Pace: Citizen Enforcers Of The Emergency Planning And Community Right-to-Know Act

Atlantic States Legal Foundation was the first plaintiff to successfully use the citizen suit provisions of the Emergency Planning and Community Right-to-Know Act (EPCRA), commonly known as the Right-to-Know Act. Three settled cases involved manufacturers in western New York State. An innovative feature of settlement negotiations involved pollution prevention and toxins use reduction plans. These plans are an important step in reaching our primary goal of reducing the release of toxins into the environment.

The first ever Right-to-Know Act citizen suit was settled on November 28, 1990, by Atlantic States. The landmark settlement involved ARO Corporation, a manufacturer of aircraft parts located in Buffalo, N.Y., and was entered in Federal Court in Buffalo. This company was alleged to have violated the toxic release reporting requirements of the Act.

ARO was fined $34,000 for failure to report under Section 313. Atlantic States negotiated that some of the fine go to the following local projects:

The Erie County Local Emergency Planning Committee to support hazardous materials planning and response activities,

Great Lakes United and Citizens Environmental Coalition to educate citizens on the use of the Right-to-Know Act in western New York, and

Fund for the Environment to work on the new Clean Air Act toxins regulations in the Lake Erie and Lake Ontario basins.

In addition, ARO was required to pay $5,000 for the Clean Air Act violations to the New York State Department of Environmental Conservation (DEC) and Fund for the Environment to support its air toxins work.

Another important aspect of Right-to-Know Act citizen suits is the cross-over of data. Air, water, and land pollution data are researched and violations of other environmental laws are often uncovered. For example, ARO was alleged to have unpermitted air emissions in violation of the Clean Air Act. ARO subsequently applied to DEC for an air permit.

Following closely on the heels of the ARO settlement, Atlantic States negotiated a $68,000 settlement agreement with Murray Sandblast & Paint of Buffalo, New York. Entered in Federal Court in Buffalo on December 10, 1990, the innovative agreement provides a $58,000 credit for Murray if it implements and undertakes a pollution prevention and toxins use reduction program.

The balance of the settlement, $10,000, was paid to the U.S. Treasury, the Erie County Local Emergency Planning Committee (to support hazardous materials planning and response activities), and Great Lakes United (to fund a Right-to-Know Act workshop and to develop a guide for community leaders).

The pollution prevention and toxins use reduction program follows the objectives of the Great Lakes Water Quality Agreement, especially the achievement of zero discharge of persistent toxins. Murray Sandblast will seek to eliminate the use of toxic substances from its operations and,¤where elimination is not possible, seek to use less toxic ones. To further reduce or eliminate the release of toxic substances into the environment, they will consider alternative production processes such as closed-loop systems; improved plant operations; and other technology and equipment modifications to maximize in-process reuse, recycling, and recovery of materials.

The third of these important Right-to-Know settlements was reached with Allied Signal, Inc., for alleged violations of Section 313 reporting requirements at its Buffalo Research Laboratory.¤Under this settlement, entered in Federal Court in Buffalo on January 3, 1991, Allied paid a total of $17,000 to the U.S. Treasury and the Erie County Local Emergency Planning Committee.

“Citizen-suit settlement monies are crucial to the success of Local Emergency Planning Committees (LEPCs)”, said Charlie Tebbutt, the attorney representing Atlantic States. “Even though they are responsible under the Act for carrying out both the emergency planning and right-to-know provisions of the law in the community, the Federal government and New York State do not provide any money to do so. Samuel Sage concludes, “We are pleased, not only with the results of cases in an area of law previously unexplored by citizens, but with the important component of pollution prevention and toxins use reduction programs in the settlements.”

Contact ASLF here.

Sharpening the Teeth of Citizen Suits

Atlantic States Legal Foundation was engaged in well over one hundred citizen enforcement actions to force polluters to comply with the federal Clean Water Act.   When a case goes to court, Atlantic States proves to be a formidable adversary, and has obtained court decisions, which clarify the liabilities and responsibilities of polluters, sharpening the teeth of citizen watchdogs.

Here is an overview of some recent decisions.
Atlantic States Legal Foundation v. Tyson Foods, Inc., 31 ERC 1201 (April 5, 1990)

In April 1987, Atlantic States initiated a citizen enforcement action against Tyson Foods for illegal discharges of fecal coliform, oil and grease, and other pollutants, at its Blountsville, Alabama, poultry processing plant.  That August, ASLF filed a complaint alleging 57 daily and 16 monthly violations.

The following December, Gwaltney of Smithfield v.Chesapeake Bay Foundation was decided, barring citizens from suing for past violations when ongoing violations have ceased (see sidebar at left: Tying the Hands…). ASLF filed an amended complaint, to conform to that Supreme Court decision, which alleged violations occurring since the action had been initiated.  In March 1988, the district court decided to stay (postpone) the proceedings “until such time as the effectiveness of [an] upgraded wastewater facility at Tyson’s Blountsville plant can be evaluated[,]” reasoning that “[w]hen the pollution has ceased, the action is moot and it is doubtful whether civil penalties may be recovered in such a case.”

In November 1988, both parties moved for summary judgment, a ruling by the judge based on uncontested facts.  Since the filing of Atlantic States’ original complaint in August 1987, Tyson had violated the Act with an additional 34 daily and eight monthly violations.  Tyson did, however, come into compliance beginning in March 1988. In March 1989, approximately 19 months after Atlantic States had filed its complaint, the district court ruled in favor of Tyson. Summary judgment was granted on grounds that since the violations had stopped before the decision was rendered, they should be seen as past violations and therefore, under the principle of Gwaltney, not subject to citizen enforcement.

When Atlantic States elected to appeal  this decision, the Court of Appeals was faced with the question of whether or not Tyson’s compliance after the beginning of the enforcement action rendered Atlantic States’ suit moot. The fact that the proceedings had been stayed was an important aspect because it gave Tyson time to come into compliance.The appellate court held that even though Tyson was in compliance at the time of the original decision, the company was still liable for all the violations alleged in the citizen enforcement action.The court reasoned that future defendants shouldn’t try to escape liability by delaying litigation until they had a chance to come into compliance, and then cite the Gwaltney principle as a defense. Importantly, this decision limits the ability of violators to escape responsibility for illegal discharges by delaying litigation until the polluter can come into compliance.

Atlantic States Legal Foundation v. Reynolds Metals Co., p73 31 ERC 1156 (February 26, 1990)

In March 1988, Atlantic States notified Reynolds in Massena, N.Y.,of its intent to bring a citizen suit to stop further pollution of the St. Lawrence River. The suit alleged many Clean Water Act violations, including illegal discharges of PCBs. Atlantic States argued that it is illegal to discharge a pollutant, PCBs in this case, not specifically regulated by the permit. Reynolds did not dispute that it was discharging PCBs, but said that since its permit did not contain PCB limits, they could not be held liable for PCB discharges.

In a February 1990 order granting summary judgement, Judge Munson agreed with Atlantic States, writing, “a person of reasonable intelligence would certainly know that PCBs are pollutants and [under New York State law] … may not be discharged unless identified and authorized by its permit.”

While polluters would have us believe that it’s OK to discharge a pollutant not regulated by a permit, this decision clarified the law in favor of citizen environmental plaintiffs by stating that, at least in New York State, the discharge of pollutants not specifically regulated by permit is illegal.

Atlantic States Legal Foundation v.  Universal Tool & Stamping Co., Inc.,<P255D> 735 F.Supp.1404 (D.C. N.D. Ind, April 23, 1990).

The Clean Water Act contains a provision whereby citizen suits can be precluded during the required sixty-day notice period by a state or federal agency, if that agency is “diligently prosecuting” an action in court against the polluter. In essence, the citizen plaintiff can be bumped off a case by the agency action, a truly frustrating event. (see sidebar: All That Work for Nothing?)

Universal Tool argued that an administrative action being pursued against it by the Indiana Department of Environmental Management (IDEM) should have the effect of bumping Atlantic States from the case, leaving it entirely in the hands of IDEM. Richard J. Kilsheimer, attorney for Atlantic States, successfully argued to the district court that the enforcement action by IDEM was not comparable to that anticipated by Atlantic States’ citizen suit. In fact, Universal Tool had undertaken measures to comply with its permit only after receiving notification of intent to sue by Atlantic States.

The decision states: “In light of IDEM’s apparent willingness to bend its procedures on Universal’s behalf, the fact that Universal continued to violate its permit limitations long after the administrative proceeding was commenced, the lenient penalty assessment of only $10,000 for the hundreds of reported violations, despite statutory authority for penalties of $25,000 per violation, and [Universal President] Rittenour’sac knowledgement that it was plaintiff’s [Atlantic States’] notice of intent to sue, and not the IDEM proceeding, that had moved Universal to take steps to comply with its permit, it is clear that the IDEM proceeding was not ‘diligent prosecution’ under the Clean Water Act.” This case clarifies the right of citizens to bring an enforcement action even when an administrative action has been undertaken, if that administrative action is not tough enough to equal enforcement under the Act.

These three cases have increased the effectiveness of citizen suits under the Clean Water Act, constituting precedent useful to citizen watchdogs, whose bite is as bad as their  bark.

Contact ASLF here.

EPCRA Enforcement Encourages Pollution Prevention

Atlantic States Legal Foundation was the first plaintiff to successfully use the citizen suit provisions contained in the Emergency Planning and Community Right to Know Act (EPCRA). Ten cases have now been settled; seven of these ten settlements require the defendant to prepare and implement pollution prevention and toxic use reduction plans. Most of the settled cases involve Erie County, N.Y. companies; one is with a Jefferson County, N.Y. manufacturer; one is with a Broome County, N.Y. manufacturer; and the other concerns a tannery in Milwaukee, Wisconsin.

The EPCRA legislation serves a very important function by enabling industrial workers and concerned citizens to find out about materials they work with, or reside near, that might have an impact on their health or safety. Citizen enforcement of EPCRA’s provisions—such as those undertaken by Atlantic States—becomes necessary as companies regularly neglect to file the required information, leaving neighbors, workers, and local emergency services in the dark about hazardous substances stored or used by industries. It is easy to see why a city fire and police departments would need to know exactly which types and quantities of dangerous substances are present when they mid-as-well be called upon to fight a fire in a factory or storage facility.

Under a settlement reached with Atlantic States in December 1990, a Buffalo company, Murray Sandblast and Paint, has now implemented a pollution prevention and toxins use reduction plan. Murray Sandblast is a metal blasting and paint shop, whose primary business activity is finishing auto carrier trailers and trucks.

The two primary toxic substances used by Murray are methyl ethyl ketone and methyl isobutyl ketone. Other toxic substances they employ include xylene, glycol ethers, and toluene. These solvents are contained in the primers and paints used by Murray, and are all extremely toxic.

In 1989, Murray generated twenty one tons of paint and primer sludge, over twenty tons of solvent emissions, over seven tons of paint and primer overspray, and some 450 pounds of steam cleaning residues. It is important to remember that these solvents, in addition to being stored and used on site, are also released to the atmosphere as both stack and fugitive emissions. The waste primer, waste paint, and waste thinner must finally be disposed of as hazardous wastes, according to the Federal Resource Conservation and Recovery Act (RCRA). Hence a strategy for dramatically cutting such substances’ use becomes crucial, to insure the safety of local residents and plant workers alike.

The primary pollution prevention strategies identified for Murray was spent blasting grit reclamation, electrostatic painting, and water based paint substitution. Murray identified a company that will reuse the spent aluminum oxide blasting grit that had formerly been landfilled. In 1989, Murray landfilled twenty seven tons of the material. Now, as a result of the pollution prevention plan, the material will be sold to a Michigan abrasive manufacturer and used in the manufacture of sandpaper and abrasive wheels. Not only will this avoid using scarce landfill space, but Murray also achieves cost savings by avoiding tipping fees and by generating revenues through the sale of this former waste product.

Murray also purchased an electrostatic system for use in its priming and painting operations. They anticipate that the use of this system will substantially reduce primer and paint usage by reducing the amount of overspray that typically occurs during painting. Lower primer and paint usage will consequently reduce solvent emissions and the necessity for disposing of much of this hazardous waste. Additionally, Murray is evaluating the substitution of water based primer and paint formulations for their current solvents.

Overall, Murray’s pollution prevention program will not only yield significant environmental improvement, but will also economically benefit the company. One should note that at the time Atlantic States initiated the citizen suit against the company, it was tottering on the verge of bankruptcy. Today, its outlook has improved due in part to the cost savings associated with implementation of its pollution prevention plan.

Contact ASLF here.

Right-To-Know Decisions Break New Legal Ground

In the first court decision in the country on the right of citizens to sue industries for violations of the federal Emergency Planning and Community Right to Know Act (EPCRA), Atlantic States was upheld in a landmark opinion dated September 3, 1991. The decision, in the matter of Atlantic States Legal Foundation, Inc. v. Whiting Roll Up Door Manufacturing Corp. (W.D.N.Y., CIV 90 1109S), reinforces the objectives of EPCRA, namely to provide public access to information concerning hazardous chemicals in the community.

In this ruling, Judge Skretny of the U. S. District Court for the Western District of New York, denied Whiting’s motion to dismiss the lawsuit. Whiting had argued that the case should be dismissed because they filed their delinquent forms after the Atlantic States’ notice of intent to sue. Atlantic States maintained this did not constitute compliance with the law, as the statutes require timely submittable of the data on hazardous substances.

The court agreed unequivocal­ly. It concluded that “based on the statute’s plain language, and the legislation’s underlying purpose, which is well doc­umented by its legislative history, this Court must conclude in the affirmative [that citizens have a right to pursue enforcement]. . . EPCRA’s reporting, enforcement, and civil penalty pro­vis­ions, when logically viewed to­geth­er, compel a conclusion that EPCRA confers federal jurisdiction over citi­zen lawsuits for past violations. . . . To overlook EPCRA’s reporting deadlines would subvert the objectives of EPCRA.”

This case clearly distinguishes cit­izens’ rights to sue under EPCRA from limitations recently placed upon citizens’ rights to sue industries under the Clean Water Act for past violations and non reporting, as decided by the Supreme Court in Gwaltney of Smith­field v. Chesapeake Bay Foundation (see the article in March ’91 News­letter for details of that decision).

This current decision, however, will bolster the ability of citizens to enforce EPCRA compliance. The U.S. EPA, and the General Accounting Office, have estimated that over one third of facilities nationwide are not in compliance with section 313, which requires submission of information to the EPA Toxic Release Inventory. Atlantic States estimated that the degree of non compliance may be even higher for sections 311 and 312, which require companies to provide safety data sheets, and information on the location of hazardous chemicals, respectively. Perhaps the deterrent effect alone of this preliminary decision to hold industry responsible for the timely filing of all EPCRA required forms will go a long way toward better protecting the general public from toxic hazards.

Whiting (a manufacturer of roll up and hinged doors) allegedly failed to meet its EPCRA stipulations for the 1987 1989 reporting years. The company violated sections 311 and 312 by not submitting the required chemical hazard information, including amounts and location, to the New York State Emergency Response Commission, the Erie County Local Emergency Planning Committee, and the Akron fire department plan for potential chemical disasters. Further, under section 313, Whiting was required to have reported all releases of chemicals into the environment (using Toxic Chemical Release Inventory Forms) to EPA, as well as to the New York State Emergency Response Commission.

At the time Atlantic States issued its notice of intent to sue for violations of EPCRA, Whiting had provided none of this information about its use and release of hazardous chemicals. Whiting made various subsequent EPCRA filings, some submitted nearly three years late.

Following closely on the heels of the Whiting matter came another decision, in September, Atlantic States Leg­al Foundation, Inc. v. Buffalo Envelope Company, (W.D.N.Y., CIV 90 1110S). Buffalo Envelope had made a similar argument as Whiting in asking the court to dismiss Atlantic States’ lawsuit against them. But, in another victory for the rights of citi­zens to enforce EPCRA, Judge Skretny denied Buffalo Envelope’s motion to dismiss the lawsuit. Buffalo Envel­ope is a manufacturer of paper prod­ucts, located in Orchard Park, New York.

In both these cases, Atlantic States received invaluable assistance from other environmental groups. Trial Lawyers for Public Justice coordinated the efforts of Environmental Action, Natural Resources Defense Council, and Public Interest Research Group of New Jersey in preparing and filing an amicus brief. Both cases are still before the Federal District Court for the Western District of New York, having now moved into the penalty assessment phase.


Contact ASLF here.

ASLF Work in Arizona Progresses

The Southwest Environmental Project (SWEP) of Atlantic States continued its efforts to serve grassroots interests in the Southwest. Earlier this winter SWEP met with citizens living in southern Tucson regarding a class action suit over toxins in the area’s groundwater. The site in question, the Tucson International Airport, has a history of toxic contamination. Trichloroethylene (TCE) contamination, for example, dates back to World War II when the airfield was used for aircraft storage and maintenance. Currently, Hughes Aircraft, the United States Air Force, and the Tucson Airport share the site.

With a link between city wells and the aquifer surrounding the airport, thousands of people living in the area could be affected. Nearby residents have attributed cancers and increased mortality rates to many years of exposure to toxins in the water supply.

So far SWEP served the role of technical consultant to attorneys and local groups. Research and discussions with U.S. EPA officials in San Francisco, spearheaded by ASLF, have attempted to define and establish a timetable for the government’s remediation efforts. By bridging the gap between the local resident’s concerns and the attorneys’ work, we hope to provide everyone with a better understanding of the technical aspects of testing and remediation.

In addition to these other projects, we examined two landfill cases. The first concerns the adequacy of siting procedures for a landfill in southern Arizona; this brought into play the issue of state and county wide solid waste management plans or lack thereof and the need for improved recycling programs.

In the second, SWEP has teamed up with a Phoenix based group, “Don’t Waste Arizona.” Together, we seek to shut down a landfill that serves the cities of Tempe, Mesa and Scottsdale. This “Tri City” landfill had succumbed to the Salt River’s rising waters and scattered its refuse throughout the river’s floodplain. Supposedly, the problem was addressed years ago when a similar set of circumstances washed trash downstream, yet the situation persists.

In extending compliance efforts to Arizona, we’ve paid visits to sewage treatment plants in Phoenix, Tempe and Tucson; local industry seems to be complying with permit levels. Following an EPA suit against Phoenix for violations in their municipal sewage treatment plant, municipal administrators elsewhere in the state seem to have kept their operations clean, perhaps fearing similar actions against their cities by EPA.

Protection of Arizona’s water resources involves different considerations than our Eastern lakes and rivers. Due to the lack of surface water, Arizona law sets up a program similar to the NPDES permit system to protect Ariz­ona’s extensive aquifers and groundwater deposits. Like the Clean Water Act, it provides for citizen enforcement of aquifer protection. Along with local activists, I visited the Arizona Department of Environmental Quality to check on industrial compliance with some 400 NPDES, Aquifer Protection, Groundwater, and Water Reuse permits which that body oversees.

Atlantic States also looked into trans border environmental issues. The approval of the US/Mexico Free Trade Agreement will have major repercussions on the mounting problems facing the people living in border areas. Grassroots organizations and concerned professionals on both sides of the border are trying to address these health and environmental concerns. The United States EPA and SEDUE, its Mexican counterpart, have begun to address the common water and air problems, and have concluded that much more work needs to be done. The problems of hazardous waste generation and adequate water treatment from “Maquilladoros” (American factories in Mexico) are among the many issues being considered.

Contact ASLF here.

CWA Cases Pursued in Arizona

Atlantic States’ South West Environmental Project (SWEP) and grass‑roots activists in the state of Arizona continue to pursue remediation of serious environmental damage in two cases.

“Tri‑City” Landfill

As mentioned in our Summer 1992 Newsletter, the landfill operated jointly by the cities of Mesa and Scottsdale, and by the Salt River Pima‑Maricopa Indian Community, continues to pose serious problems for residents along the Salt River in central Arizona.  There exist numerous reports of “wash‑outs” of landfilled trash into the river (which, while occasionally dry, often floods considerably); witnesses have reported such occurrences as tractors pushing huge mounds of solid waste into the river.  Many local residents  have also raised concerns that seepage from the landfill has contaminated the underground aquifer that serves as a source of drinking water.
Atlantic States researched the “contamination plume” (the underground spread and seepage of dangerous chemicals though the soil) and used this evidence to prove the legitimacy of concerns about the poorly‑sited dump’s safety.

Huachuca Concrete Company

SWEP is also pursuing its case against this large sand and gravel operation in Huachuca City, Arizona.  The case alleges that Huachuca Concrete has been responsible for unpermitted discharges of dredge and fill materials into the Babocomari River, and further that the company’s activities have destroyed the banks and altered the channel of the river.

This damage to the riverbed occurred through the company’s unpermitted removal of large quantities of soil from the channel and replacement of that removed material with other fill.  The Arizona Department of Environmental Quality has
received many complaints regarding the company’s activities.

Specifically, witnesses report that Huachuca Concrete has significantly altered the landscape of the river and that currently the river’s flow down­stream of the facility has ceased completely.  Prior to this, the flow was reported turbid and discolored; area residents also discovered large numbers of dead fish and birds in the river during one period of serious turbidity.

SWEP maintains the company should be held responsible for damage they have inflicted on the Babocomari River and be compelled to remediate and to pay substantial penalties for these unpermitted activities, which are clear violations of Section 404 of the Clean Water Act.

Contact ASLF here.

4-County Landfill Update

As we went to press last year, a landmark RCRA (Resource Conservation and Recovery Act) decision was handed down in the case of STOP (Supporters to Oppose Pollution ) and USA vs. Environmental Waste Control, a/k/a 4-County Landfill. This is the first case in which a commercial hazardous waste disposal facility was permanently closed through court action. The decision was based upon testimony from STOP members and other witnesses, who provided videotapes, photos and reports. Since STOP’s inception, ASLF staff members have provided vital organizational and legal assistance (including assistant counsel during the 30 trial days).

In addition to permanently closing the landfill, the court imposed $2,778,000 in penalties, ordered clean-up of the site and payment of STOP’s attorneys’ fees. Within two weeks of the court’s order, 4-County declared bankruptcy, delaying clean up and the payment of fines and fees.

The  day of the verdict, STOP members were threatened. Two members and their children were chased by a waste hauling truck. The following night, a shotgun was discharged outside the same member’s house, and roofing nails were scattered in their driveway. These intimidation tactics stopped immediately after an alerted FBI agent talked to the owner of the dump.

Several legal actions are still pending. STOP filed suit against the Heritage Group to make them liable as co-owners/operators of the landfill, and a separate motion seeking sanctions against 4- County’s lawyers (Pendygraft & Plews) for withholding evidence of groundwater contamination. While STOP seeks to recover attorneys’ fees totaling less than $300,000 for years of effort, Four County has paid its lawyers over $1.5 million. In January oral arguments on the dump’s appeal were heard. We await the court’s decision.

Contact ASLF here.