As the battle over Vermont Yankee’s future is waged, Conservation Law Foundation and VPIRG seek to join as a friend of the court, or amicus for this first stage.  CLF will use the expertise gained in opposing Yankee’s continued operation before the PSB to bolster the argument that Yankee’s a long track record of failures preclude the Court from allowing continued operation.  Entergy would love to characterize their re-licensing as a guarantee to operate past 2012. However, CLF points out that their federal court challenge to the license over Entergy’s failure to obtain a necessary Clean Water Act certification makes the license itself uncertain.

CLF urges the Court not to allow Entergy to usurp Vermont law and walk away from their legal obligations.  The false testimony, leaks and bad economics of continued operation are ample justification for Vermont to refuse to grant a new certificate to operate for another twenty years.  In 2009 Entergy officials gave false testimony about the existence of underground pipes that were later found to be leaking radioactive tritium.  As CLF’s brief states:  “If land surveyors, architects, plumbers and physicians assistants can lose or be denied a license for making a material misrepresentation, less cannot be expected or required of nuclear facility operators.  The false testimony that Entergy officials provided under oath calls into question the ability of the plant operator to meet its legal obligations.”

The state of Vermont swung back in its reply brief last week with a laundry list of reasons the court should dismiss Entergy’s request to continue operating during the trial, or a “preliminary injunction”.  Because Entergy agreed to seek Public Service Board (PSB) approval, and not challenge PSB authority in court, the state argues Entergy is bound by their agreement. Also, the state suggests it is inappropriate for Entergy to object to PSB oversight at such a late hour, long after they received the benefit of doing business in Vermont under this agreement since 2002.

The state railed against Entergy’s argument that federal law supersedes state regulation over the aging plant. Vermont argues that, with the exception of radiation safety, states have authority over nuclear in many areas such as, “economics, land use, policy questions regarding a state’s energy future, and whether a corporation running a nuclear power plant has established itself as a trustworthy business partner.” Thus, the state argues that regulation over nuclear was never meant to preempt state law altogether.

Both Entergy and the state of Vermont will have a chance to argue on the preliminary injunction motion before United States District Court Judge J. Garvan Murtha on June 22-24.

After weeks of debate regarding Darryl Brown’s eligibility to serve as the commissioner of Maine’s Department of Environmental Protection, on April 27 Attorney General William Schneider issued a letter stating that Brown was likely unqualified to serve in the position under Maine law. Following that announcement, Brown resigned.

CLF and others voiced their concerns about a potential conflict of interest that would affect Brown’s ability to continue serving in the post in the months following his appointment in February. Maine law states that anyone who has received at least 10 percent of their income over the past two years from work for clients under the Clean Water Act is ineligible to serve as DEP commissioner. Brown is the founder and sole shareholder of Main-Land Development Consultants, an engineering and land-use planning firm, and had originally stated at his confirmation hearing in January that between 25 and 35 percent of his firm’s work fell into that category, but later insisted that he did not exceed the 10 percent threshold. Schneider’s letter stated that if Brown couldn’t produce documents demonstrating that his income did not exceed the 10 percent threshold, he would be ineligible for the position. The Attorney General also made clear that any such documents submitted by Brown would be subject to Maine’s Freedom of Access Act.  Claiming that the potential release of documents could potentially hurt his business, Brown’s attorney had sought assurances that the documents would not be released.  Brown’s resignation followed shortly after the Attorney General’s letter was released.

Brown’s resignation must have been anticipated by the LePage Administration, which immediately announced that Brown would become the director of the State Planning Office, which LePage has previously indicated he intends to do away with by 2012.  Jim Brooks, currently the director of the DEP’s Bureau of Air Quality, will serve as acting DEP commissioner.

On April 14 U.S. District Court Judge William G. Young issued a final judgment in CLF’s favor in our suit against the MassHighway Department, bringing to a close nearly five years of litigation to push the department to manage stormwater runoff from state roads that was polluting nearby waterbodies. The court found that MassDOT (which now includes MassHighway) is finally, sufficiently carrying out its obligations. As a result of CLF’s suit, MassHighway has now built new stormwater treatment measures at the three sites that were contributing to discharges that cause on occasion instream exceedance of water quality standards. In addition, it submitted a revised Storm Water Management Plan that addressed the numerous deficiencies in the original plan which the court approved. The court noted, however, that MassHighway has more work to do. MassHighway has committed to assess its storwmater impacts on over 600 locations over a five-year schedule and to install new treatment if necessary.  MassHighway will have to submit two more reports to the Court detailing its activities throughout 2011.

When CLF filed suit in 2006, MassHighway had not even obtained permit coverage for its stormwater from EPA as required under the Clean Water Act. Two years later, in 2008, Mass Highway had done nothing to comply with the federal court order to clean up three sites in Milford, Franklin and Lancaster, Massachusetts, and had not revised its statewide cleanup plan for degraded waters.  CLF took MassHighway back to court, and at a hearing in May, 2010, Judge Young called MassHighway to the mat for non-compliance with federal law and issued an order to begin the cleanup immediately. (For a more detailed history of the case click here.)

At long last, the Judge issued a final judgment in CLF’s favor. This lawsuit sets a precedent for how stormwater is managed, on MassHighway’s remaining 2,500 miles of roadways in Massachusetts and the 600+ locations throughout the state where stormwater is being dumped into degraded rivers, lakes, and streams. The true measure of our success, however, is cleaner water. One important thing to note is that Judge Young, in the court’s final judgment, explicitly said this does not preclude suits for future violations so you can be sure CLF will be closely monitoring MassHighway for years to come. Until next time…

At the end of the day Wednesday, Attorney General William Schneider sent a response to the Emily Cain, Democratic minority leader, declining her request that the Attorney General prepare an opinion regarding the continued authority and eligibility of Darryl Brown to serve as Commissioner of the DEP.  The Attorney General stated that because his office was involved in the preparation of the response by Commissioner Brown to the EPA with respect to federal law and that “[a]ny final response to the EPA will be made through this office,” it was not appropriate for the AG’s office to issue a separate opinion.

It’s difficult to ascertain what the Attorney General actually is saying here.  If he is saying that the AG’s office will be independently reviewing Commissioner Brown’s response, and particularly the facts as to whether more than 10 percent of Brown’s income over the past two years was derived from work for clients under the Clean Water Act, before it goes to the EPA in order to determine compliance with Maine law, then we applaud him for finally addressing this issue.  If, as suggested in yesterday’s article in the Portland Press Herald, he is saying that the Attorney General’s office will be acting as Mr. Brown’s lawyer in responding to the petition filed with the EPA, then we strongly disagree with that course of action.  At a minimum, the Attorney General should clarify exactly what role his office will play.

It is our opinion that the proper course for the Attorney General is to conduct a detailed analysis of the facts that Mr. Brown collects and presents concerning his income sources over the last two years.  If that review indicates that he has not exceeded the 10 percent threshold, then Mr. Brown should continue with the important work of the DEP.  But if the data shows that he crossed that threshold, then Mr. Brown should resign.  In either case, a speedy and transparent resolution of this issue is paramount.

ME DEP Commissioner Darryl Brown (Photo credit: maine.gov)

CLF is once again calling for increased transparency from the LePage Administration, this time with regard to whether or not Darryl Brown, who was confirmed by the Senate last month as Governor LePage’s appointment to be commissioner of Maine’s Department of Environmental Protection (DEP), is eligible to stay in his current position according to State and federal law.

Brown is the founder and remains the sole shareholder of an engineering and land-use planning firm that assists developers and industry obtain permits from the DEP and EPA.   At his confirmation hearing in January, Brown said that between 25 and 35 percent of his firm’s work involved DEP permitting.  Under state law, (38 MRSA $ 341-A(3)(B)), anyone who has received at least 10 percent of their income in the last two years directly or indirectly from projects permitted under the Clean Water Act are not eligible to serve as DEP commissioner.

The question of Mr. Brown’s eligibility to serve as Commissioner was first raised by former CLF staff attorney Steve Hinchman on behalf of the Androscoggin River Alliance in a February 7 petition filed with the EPA under a CWA provision that is similar, although not as broad, as the Maine statute.  Importantly though, both provisions use the same 10 percent threshold test.  EPA has requested that Mr. Brown provide information by April 15 to determine whether that threshold has been crossed.  Maine’s Attorney General and the Governor’s office have refused to say whether they have even met to discuss the situation, never mind how they intend to resolve it.  As an independent Constitutional officer, CLF has called upon the Attorney General’s office to provide a formal opinion as to how the law applies to Commissioner Brown and whether he has crossed the 10 percent threshold in the last two years, a call formally echoed by the House Democrats on April 5.

CLF will continue to push for a fair and speedy resolution of the issue, whatever that resolution might be.  CLF is not pushing this issue in order to disqualify Commissioner Brown nor to make a statement as to his performance as Commissioner.  Rather, we’re pushing to make sure that the law is interpreted and applied correctly.

It is possible that even though 25-35 percent of Brown’s was related to DEP permitting work but only 10 percent of his work was related to Clean Water Act permits.  But there will be no confidence in such a conclusion until a transparent and thorough analysis is conducted by the lawyers for all of Maine’s people, the Attorney General.

A pile of scrap metal and debris at the Grimmel Industries facility in Portsmouth, NH. Toxic stormwater discharges from the site have long been polluting the Piscataqua River. (Photo credit: CLF)

At CLF’s urging, today the Environmental Protection Agency (EPA) issued an administrative order requiring Grimmel Industries to take prompt action to clean up toxic stormwater discharges to the Piscataqua River. Grimmel Industries operates a massive scrap metal collection and shipping facility at the Pease Development Authority’s Market Street Terminal, in Portsmouth, NH, on the banks of the river.

“For too long, this facility has been discharging mercury, PCBs and other pollutants into the Piscataqua River,” said Tom Irwin, CLF New Hampshire director.  “It’s simply unacceptable for this or any facility to discharge such toxic contaminants into this river – a critical coastal resource for New Hampshire – or into any of our waterways.  These discharges are in clear violation of the Clean Water Act; we’re pleased that the EPA is taking action to force compliance.” More >

Today, the U.S. EPA announced that it will join CLF’s lawsuit against the Boston Water and Sewer Commission (BWSC) for violations of the Clean Water Act. The suit, filled by CLF in U.S. District Court in February 2010, states that BWSC has failed to control polluted discharges from its storm water system, allowing it to carry raw sewage and excessive levels of bacterial, copper and zinc into Boston’s waterways, threatening the health and well-being of the surrounding communities.

BOSTON, MA  December 22, 2010 – The Conservation Law Foundation (CLF) has issued the following statement in response to the motion filed today by the U.S. Environmental Protection Agency (EPA) stating that it will join CLF’s lawsuit against the Boston Water and Sewer Commission (BWSC) for violations of the Clean Water Act:

“The complaint against the Boston Water and Sewer Commission documents serious failures in the system that are allowing ongoing unlawful pollution of Boston’s waterways, including the Charles, Mystic and Neponset Rivers, in some the city’s most economically-challenged communities,” said Christopher Kilian, director of CLF’s Clean Water and Healthy Forests program. “The federal government’s entry into this case is a clear indication of the urgency of the matter and the priority EPA places on it. BWSC’s inability to maintain a system that ensures clean water is a violation of the law and an affront to the people of Boston. The United States agrees with CLF that BWSC must make a major commitment now to improve water quality, as other cities have done, and restore these resources to health for everyone’s benefit.” More>>

“It was the best of times, it was the worst of times.”

That opening line from Dickens’ classic A Tale of Two Cities ran through my head last week as I had two very different experiences of Lake Champlain, the 6th largest freshwater lake in the lower 48.

On Saturday, CLF participated in Burlington, Vt’s Lake Champlain Maritime Festival.  Visitors from Canada, outlying towns in Vermont, and many of the 50 states descended on the waterfront for fun in the sun along New England’s “west coast.” Festival goers had a chance to take sailing lessons and inspect old-style guide boats and other watergoing vessels from the Lake’s past.  By day, the sun shone on the broad blue Lake with its breathtaking vistas of the Adirondack Mountains in New York.  And by night great music from the likes of Grace Potter and the Nocturnals echoed across the waterfront.  Although they may not have known it, many of the festival goers also had a chance to drink water from the lake as it serves as the main public drinking water source for 250,000 people in the greater Burlington area.

The festival was exactly the kind of event that highlights the Lake as a recreational, cultural, and economic resource for Vermonters and those who come to visit.  It was a “best of times” moment for our great Lake.

But less than two months ago, in the midst of the summer’s worst heat wave, the same waterfront exploded with foul blue-green algae blooms that turned the water a nasty shade of slimy green.  The Burlington Free Press has an depressing gallery of photos here.

And that brings me to the “worst of times” moments from last week.

On Tuesday, members of the St. Albans Bay Area Watershed Association invited me to come see the foul water quality that has been plaguing the Bay for most of the summer.  I drove up to St. Albans, roughly 30 miles north of Burlington, to meet with three local residents–a retiree, a high school principal, and a state police officer–who are both maddened and saddened by the plight of St. Albans Bay.

A blue-green algae scum fouls and discolors the mostly-deserted waters of St. Albans Bay near a spot that used to average 50,000 visitors a summer before algae blooms like this became a regular experience

They took me on a tour of the watershed, an area that has become dominated by industrial-scale dairy farming responsible for spreading millions of gallons of liquid manure each year onto farm fields that eventually drain into the bay.  The excess nutrients in the runoff from those fields fuel the blue-green algae that choke the life out of the Bay, depressing area businesses and property values.  Forget the image of cows grazing happily on green fields with a red barn in the background.  The cows on these farms were packed tightly into low, single-story barns that look more like warehouses.

The group took me to the waterfront St. Albans Bay Park.  The bright-green, scummy water I saw is pictured at left.  It was a blistering hot day, but no one was using the beach or even thinking about swimming.  The ice cream parlor on the park’s edge had no customers and the convenience store looked pretty slow too.

One of my tourguides, who used to take his kids swimming there all the time in the 80s, told me that the park was once a major destination for Canadians who would drive south to bask on the Bay’s calm beaches–bringing their tourist money with them.  But annual visits to the park–once as high as 50,000 people per summer–have dropped to less than 5,000 as water quality has declined.

Vermont cannot and will not prosper as a state if we continue to tell this tale of two lakes.  The Maritime festival highlights what a tremendous asset a clean lake is and can be.  Yet one wonders what would have happened if the festival was scheduled for earlier in the summer when the water near Burlington looked much as the water in St. Albans did last week.  The experience of depressed property values and economic decline in St. Albans Bay highlights what we stand to lose if we don’t stem the pollution flowing to all sections of the Lake.  We cannot tolerate a situation where you have to check a Department of Health web site to see the status of blue-green algae blooms in the part of the Lake you are planning on visiting.

Whether the problem is pollution from poorly-run megafarms, fouled runoff from big-box parking lots, or inadequately treated sewage, CLF’s Lake Champlain Lakekeeper is committed to restoring and maintaining the best of times all the time and everywhere in Lake Champlain.

There’s nothing like a major summer heat wave to help you appreciate the value of rivers, lakes, and ponds that are safe for swimming.  Like the massive herds of animals that you see on nature shows congregating by a communal watering hole, we all have a primal urge to be submerged in cold, clean water as a cure for oppressive summer heat.

Thanks to the Clean Water Act, many of our nation’s waters are once again safe for swimming most of the time.  But sadly there are still many lakeshores, oceanfronts, and riversides close to major population centers where high bacteria levels and noxious algae often make swimming unattractive and unsafe.

A blue-green algae bloom fouls the Charles River, making it off limits to swimming

All across New England, from Cape Cod to Lake Champlain, wastewater pollution, polluted runoff from parking lots and streets, and manure and other wastes from farming operations fouls water quality, depriving overheated New Englanders of the chance to safely cool off by taking a dip in their neighborhood waterway.  Ironically, the same hot weather that makes us hanker for a refreshing swim can exacerbate pollution problems by stimulating the growth of harmful algae that can make swimmers sick.

It isn’t supposed to be this way! When Congress passed the Clean Water Act in 1972, it set a national goal of restoring all of our nation’s waters to safe-swimming status by 1983 and provided funding, permitting, and enforcement programs designed to achieve those goals.  Though the Clean Water Act has helped us make long-overdue progress toward that goal, our national commitment to properly funding and enforcing this fundamental law has waned along with water quality in many places.

Last night the heat was so bad in my un-air-conditioned home I had to get out for a swim.  Even though there are several stretches of the Winooski River running through my small city of Montpelier, Vt. where water flow and depth conditions would make for nice swimming, I know too much about the untreated pollution that runs off  city streets right into the river to walk down to the Winooski for a swim.  Instead, I had to jump in the car and drive a round-trip of 30 minutes into the countryside to find the clean-water relief I was seeking.  I’m lucky in this regard, because many New Englanders in more densely populated areas would have to drive farther to find a clean swimming hole even though, like me, most have another waterway that could be made–and by law is supposed to be–safe for swimming much closer to home.

By allowing regulators and policymakers to underfund and underenforce Clean Water Act programs, we are forfeiting one of our most valuable natural assets–safely-swimmable waterways.

At CLF, we are committed to achieving the national vision of restoring and protecting all our waters so they are safe for swimming and fishing–including our urban waters that flow through sweltering cities where people are most in need of a more carbon-neutral alternative to air-conditioned cooling off.  Our country still has much work to do on this public health/public happiness issue.  The heat wave is a reminder of why that work is worth doing.  To learn more about CLF’s clean water efforts for New England, please visit our web site.