Zak Griefen

CLF is pleased to welcome Zak Griefen, a Vermont native and former litigator for Cheney, Brock and Saudek, in the newly created role of environmental enforcement litigator. Based in CLF’s Vermont office, but working on cases throughout New England, Zak will be focused initially on cleaning up our region’s inland and coastal waters by ensuring that polluters are aware of their Clean Water Act permitting requirements and bringing federal litigation when necessary. The environmental enforcement litigator position was created to hold polluters accountable for the violations of environmental regulations—Clean Water Act and others—that are rampant across New England, compromising our region’s health and the health and safety of our citizens.

Zak has a BA from the University of New Mexico, and earned his JD, cum laude, and Master of Studies in Environmental Law, magna cum laude, from Vermont Law School in 2005, where he was an editor of the Vermont Law Review. Admitted to practice in VT and MA, he served for two years as clerk to the judges of the Vermont Environmental Court, and then practiced civil litigation in Montpelier, where he lives with his wife and two children. Zak, who served as a summer intern at CLF in 2004, is an avid angler and is particularly interested in protecting healthy streams and promoting sustainable land use.

This is the fifth and last post in our Shark Week Series. Happy Shark Week, everyone!

Many rational people are very afraid of sharks. We can tell ourselves that the odds of attack are extremely low, especially in New England, but the primal image of the gaping maw and jagged teeth is hard to drive away with logic. As David Ropeik points out in his thought-provoking book, How Risky Is It, Really?, a risk feels bigger if you think it can happen to you, regardless of the odds. Sharks attacks are easy to imagine. However, if you look at the numbers, you should be way more worried about the drive to the beach, or lightning. The odds of death by shark each year in the U.S. are 1 in 3,748,067. You are way more likely to die from a dog attack. Here are some other things that are deadlier than a shark:

• Car accident – you have a 1 in 84 chance of dying in a car crash each year
• Death by sun/heat exposure – 1 in 13,729 per year
• Death by fireworks – 1 in 340,733 per year

I do worry about sharks. Almost anyone who spends time in the ocean thinks about them. But I worry a lot more about getting sick from polluted water.

Potentially harmful bacterial pollution enters our coastal environment in partially or untreated wastewater and stormwater, in septic and cesspool waste, and from animal waste on or near beaches. According to the Centers for Disease Control and Prevention, illnesses caused by recreational use of contaminated water are on the increase. For the fifth year in a row, beach closure or advisory days in 2010 topped 24,000 nationally, the majority which are due to bacterial contamination. Swimming in pathogen-contaminated water can result in respiratory infections, pink eye, stomach flu and many other health problems.

Many popular beaches have water-testing programs to help keep swimmers safe, but the testing is generally not daily, and the results are not “real time.” It’s a good idea to avoid the water during or after a storm, when bacteria levels are likely to be higher, since some of our stormwater is untreated. Worse still, many towns and cities in New England have antiquated Combined Sewer Overflow (CSO) systems that are designed to release untreated sewage and stormwater into our rivers and oceans during storms. Some beaches close down as a result of storms, without even being tested, if it is known that CSOs will be flowing into the water. Fortunately, some CSOs are being upgraded and eliminated. But for now, there is still a very real risk of illness from swimming in contaminated water.

There is risk in everything we do. I’m willing to risk an encounter with one of the “Men in Gray Suits” if it means I get to keep surfing. But I’m going to be very careful about swimming in polluted water.

My point is not that we should be too afraid to enjoy our amazing beaches and ocean life. But, that we should work to protect them. Join CLF in advocating for our National Ocean Policy, in protecting the Clean Water Act, and in ensuring we leave a legacy of protecting these special places.

Cynthia Liebman is a staff attorney at CLF Massachusetts. (Photo credit: Leslie Boudreau)

The most expensive stormwater runoff problem to fix is the one that’s not addressed. That’s the first point CLF Massachusetts Staff Attorney Cynthia Liebman makes in this smart letter to the editor published yesterday in the MetroWest Daily News. The letter is in response to the paper’s July 26 article stating that officials in the town of Milford, MA are considering suing EPA over the costs of EPA’s proposed regulations to clean up toxic stormwater runoff.

“Toxic algae blooms and other symptoms of pollution from paved areas undermine the clean water and recreational opportunities that make our towns desirable places to live, visit, and do business,” she writes. “EPA’s new pollution control program in the communities that discharge into the Charles River and its feeder streams provides more equitable cost sharing than the status quo.” More >

Last night, I sought refuge from the oppressive heat by taking a long swim in the cool, clean water of our local lake.  Families and young children packed the shallows where they found relief from record-breaking temperatures.  Floating along in this happy summer scene, I could not help but think of how fortunate we are to live in a country where our laws recognize that our happiness, our safety, and our economy depend on our ability to keep our water clean.

Thanks to the Clean Water Act, many waters are safe for swimming. Call your Senators to let them know you support this important law and want to ensure that all of our waters are safe for swimming, drinking, and fishing before it's too late.

In many places across the nation, the freedom to swim safely on a hot summer day was only a dream a generation ago when raw sewage and industrial pollution choked our nation’s waters.  Without the pollution controls and infrastructure investments required by the Clean Water Act and the work of groups like CLF to ensure that the law was being followed over the last forty years, water that is “drinkable, fishable, and swimmable” would still be beyond the reach of most Americans. Yet there remain many rivers, lakes, and bays from New England to the Gulf of Mexico and beyond where the Clean Water Act’s promise of water safe for recreation, drinking, and wildlife conservation have yet to be fulfilled.

POLLUTION CAN MAKE YOU “DEATHLY SICK”

Earlier this month, Oklahoma Senator James Inhofe–one of the most anti-environmental members of Congress–received a stark reminder of how the dream of a swim on a hot summer day can quickly become a nightmare when we don’t have enough clean water.  Inhofe reported getting “deathly sick” from an upper respiratory illness he contracted when he swam in Oklahoma’s Grand Lake during a recent blue-green algae bloom caused by the combination of excess pollution and extreme heat. Fortunately, his 13 year-old granddaughter had the good sense not to join him in the illness-inducing swim.

Despite searing heat, swimmers stayed out of the slime-coated waters of Lake Champlain's St. Albans Bay most of last summer. Earlier this month, the Vermont Health Department warned swimmers about blue-green algae blooms that have appeared in the Bay again this summer.

From Vermont’s Lake Champlain to Cape Cod to Rhode Island’s Narragansett Bay and in many lakes, rivers, and streams along the way, pollution from poorly-treated human waste and dirty runoff from streets, parking lots, and agricultural operations is feeding the growth of harmful blue-green algae of the sort that made Senator Inhofe feel “deathly sick.”  Added runoff from extreme rainfall events and hotter temperatures caused by global warming, will require even stronger clean water restoration and protection measures as we adapt in a changed climate.

THE CLEAN WATER ACT IS UNDER ATTACK

Sadly, some in Congress are attacking the EPA and the Clean Water Act, cynically attempting to free polluters of accountability under the false claim that pollution control is bad for the economy.  Click here to read about some of the “dirty water” bills being pushed through Congress by the Tea Party and some powerful Democrats who are in the pocket of the coal companies.

Twenty-eight years ago, the heavily-polluted Boston Harbor beaches were the poster children for the unfulfilled goals of the Clean Water Act.  Using enforcement tools under the Clean Water Act, CLF and U.S. EPA forced the beginning of a cleanup effort that many an overheated Bostonian can be grateful for as they head to the water this summer. The tremendous economic development that has occurred on the Boston waterfront as the water became cleaner is powerful proof that the Clean Water Act is a responsible and balanced tool for achieving many of society’s goals.  CLF and EPA are continuing the work under the Clean Water Act to ensure that Boston Harbor beaches remain safe for swimming and that citizens in upstream communities along the Charles, Mystic, and Neponset Rivers enjoy the same freedom to boat and swim without fear of becoming sick from pollution.

WHAT YOU CAN DO

As the U.S. Senate starts to consider the “dirty water” bills coming from the House, Senators are faced with a clear choice.  You can make a difference by calling or emailing your Senator and urging them to reject attempts to gut the Clean Water Act and weaken the EPA. Click here to find the phone number or email address for your Senator.  Join CLF in speaking up for clean water before it’s too late. 

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.