"STOPPER" Newsletter of the Raymond Proffitt Foundation
SPRING 1996
ANNUAL MEETING NOTICE
The annual meeting of the Raymond Proffitt Foundation will be held on 18 May 1996, 2:00 P.M. at 51 Gentle Road, Levittown, Pa. 19057. This is in the Golden Ridge section of Levittown at Five Points. For directions call Joe Turner at 215- 945-1329.
Bring a lawn chair, there will be a back yard bar-b-que consisting of hot dogs and hamburgers, should it rain we will move inside.
COURT ORDERS EPA TO OBEY ANTIDEGRADATION LAWS
On April 16, 1996, the United States District Court for the Eastern District of Pennsylvania issued an Opinion and Order that required the EPA to "promulgate a federal [antidegradation] regulation setting forth a water quality standard for Pennsylvania." The water quality standard in dispute is found in federal regulations that require states to protect the existing uses of waters and to protect waters of high quality and waters that contain outstanding national resources.
On April 23, 1996, Pennsylvania agreed to comply with Judge Bechtle’s Order. The state said that it was meeting with the EPA on the same day and would recommend changes to the state’s water quality standards. The Raymond Proffitt Foundation will monitor these proposed changes to insure that they comply with all federal laws.
This was the second lawsuit on this issue to be successfully brought by the Raymond Proffitt Foundation, a non-profit environmental organization. The first case forced the EPA to deny Pennsylvania’s existing antidegradation standards. But then, even though the EPA told the state to comply, nothing was done to force compliance.
This second lawsuit asked the Court to order EPA to take action. The Court responded by saying "[T]he time has come for the EPA to do what Congress has mandated."
Pennsylvania, for over a decade, has failed to have an antidegradation standard that meets minimum federal requirements.
The EPA, which has the power and the duty to require states to comply with this law, did nothing. The federal court recognized EPA’s dilatory conduct and said that the agency "must begin to prepare and publish a water quality standard for Pennsylvania now." The Court also said "[T]hat is its duty!"
The Court rightly noted that the lack of this water quality standard has caused environmental harm to Pennsylvania’s waters. "There is the potential for the states’s water quality to degrade under the present standard, and that state officials operating under the present standard have issued permits that have directly caused harmful environmental effects."
From a strictly legal perspective, the Court found that EPA had failed to comply with both its mandatory duty under the Clean Water Act, and with its discretionary duty under the Administrative Procedure Act. Even though there was no definite time period associated with the Clean Water Act mandate that the EPA "promptly prepare and publish proposed regulations", the Court found it to be an "inferable deadline" that should not have taken 19 months.
The Court further ordered a status conference on May 13, 1996.
UPDATES
VALLEY FILLS
The federal Office of Surface Mining (OSM) is still reviewing Pennsylvania’s law that allows Valley Fills. The submission occured because the Raymond Proffitt Foundation filed a 60-Day Citizen Lawsuit Notice against the Commonwealth. (See Fall 1995 issue of the STOPPER)
If OSM approves the law, then we intend to challenge that approval in federal court. The recent decision in out Antidegradation lawsuit against EPA should help our arguments. There, Judge Bechtle agreed with us that Pennsylvania ‘s issuance of permits under its Valley Fills law destroyes the existing uses of streams.
VALLEY CREEK
This case involving the Raymond Proffitt Foundation, eight other environmental groups and the DEP against Rouse & Associates is still on hold in Commonwealth Court. It appears as if the parties involved will agree on land application of sewage rather than dump it into Valley Creek, an Exceptional Value stream.
WHAT IS A SLAPP LAWSUIT?
By John Wilmer
There you are, one moment blithely protesting a hazardous waste site that will endanger your children, and the next moment you are SLAPPed! What has happened? SLAPP stands for Strategic Lawsuits Against Public Participation. It stands for lawsuits against people who protest toxic waste sites, nuclear facilities, dirty water, and unclean air. It stands for lawsuits against you.
SLAPP is not a legal cause of action itself, but instead defines a class of conventional lawsuits filed for a different reason. When an industry is not happy with criticism of its environmental practices, it will sue the protestors to inhibit, limit, or silence opposition. It is meant to shut you up.
Typical causes of action are trespass, nuisance, harassment, slander, libel, and interference with contract; and each cause of action has its own requirements. Trespass, for example, requires that the violator be on the real property of another, without permission. What makes it a SLAPP lawsuit is that it is filed to silence the person, rather than to remedy the wrong.
The consequences of being sued in this type of action are that you may lose and be forced to pay damages. The real harm, however, is that even if you are not found liable you still must pay your own legal bill. Polluters can silence peaceful and legitimate protestors because of legal fees, whether or not they ever win the lawsuit.
In a real life example, a woman who complained about dumping wastes behind a school was sued by the contractor who was hiding the waste. She saw the problem, notified the state agency, and did everything buy the book. She was a resident of the school district and even had a right to be on the property. When she and the state inspector went on the school property, the contractor yelled and cursed at her, and accused her of interfering with his work. He sued her for harassment and won before a local magistrate.
She appealed the case to the Court of Common Pleas, but it meant having to hire and pay for a lawyer. She ultimately won because harassment requires a continuous course of conduct, and she had only that one confrontation with the contractor.
How do you avoid being sued for exercising your rights to protect the environment? First, you should always carefully obey the letter of the law. Do not enter the property of another without permission or attempt to physically interfere with anyone. After that, be careful of what you do and say. You have the right to express your opinions, but not to break the law or cause harm to another. Do not accuse someone of illegal or harmful activities unless you can prove it.
Although truth is a defense, proving the truth may be a difficult burden. For example, if you said that someone did a lousy plumbing job, you could always assert the lousy plumbing job as a defense. Yet, if you called them a lousy plumber then you would have the impossible task of showing that all of their plumbing jobs were lousy.
The Pennsylvania legislature has tried to remedy the problem of SLAPP suits. In the last administration, a state legislator proposed a bill that would offer some protection by giving immunity from suit to persons who communicate environmental problems to the government for the purposes of getting the government to act upon the problem. The bill also provided a special mechanism for getting this issue resolved before the lawsuit progresses. It further provided for attorneys’ fees and the right of government intervention.
Unfortunately, the bill went nowhere last time and has been reintroduced with an unsavory rider. Attached to this re-submission is a section that would allow the Environmental Hearing Board (which never hears SLAPP suits) to award costs, including attorney fees, if it determines that "an appeal is frivolous or taken solely for delay or that the conduct of the Appellant is dilatory or vexatious."
This new provision would punish citizens and public interest groups who are forced to file appeals in 30 days, and who frequently cannot afford lawyers. Industries appealing government actions can carefully prepare pleadings that pass the legal "frivolous" test. Citizens, on the other hand, do not read the Pennsylvania Bulletin regularly (where Notice of these actions appear), do not understand the complexities of the legal system well enough to appear knowledgeable, and, finally, must file pleadings within the short time allotted or forever lose their rights of appeal. Thus, a good bill that could have offered some protection for citizens before local and county courts now includes a provision that limits citizen’s rights before the Environmental Hearing Board.
The purpose of a SLAPP lawsuit is to keep you from telling the truth about environmental problems; it is not to protect the polluter’s rights or principles. The best defense is the truth, not lies or hyperbole. Notify the government and explain the problem, do not embellish or distort what has happened. If you tell the world about a problem then you must attack the problem, not the person causing the problem.
CONGRESSIONAL ALERT
(From N.R.D.C.)
Stop legislation Requiring Taxpayers to Pay Polluters
Not to Pollute
In the name of protecting private property rights, Senator Dole is promoting a bill (S.605) that would dramatically undermine the ability of the federal government as well as state and local governments to protect public health and the environment.
The bill requires the government to compensate anyone whose property is harmed as a result of regulatory activities. It ignores the role environmental safeguards play in protecting all property - public and well as private - and life from the harmful effects of air and water pollution, toxic wastes and other environmental hazards.
Urge your Senators to vote "NO" on S.605. Tell them this bill is environmentally and fiscally irresponsible. The Constitution adequately protects property rights. In addition, the Clinton administration has taken steps to address the concerns of small property owners.
LEGISLATIVE WATCH
Clean Air
In response to stiff public opposition, Sen. Faircloth (R-NC) has decided not to pursue legislation to roll back many clean air protections. In the House, Rep. Stockman (R-TX) is working with Rep. Barton (R-TX) on provisions waiving many of the Clean Air Act’s protections.
Reps. Bilirakis (R-FL) and Miller (R-FL) have been unable to gather the necessary support to extend the Clean Air Act’s 2001 deadline for the phase-out of methyl bromide, an ozonedepleting chemical used by farmers.
Clean Water
The provision in the omnibus spending bill, H.R. 3019,,denying EPA the authority to protect the nation’s rapidly disappearing wetlands, was deleted
On 3/28, Congress passed a Farm Bill, H.R. 2854, which the President is expected to sign. The bill dramatically increases funds for conservation, but provides few guarantees that this money will be spent in the most environmentally sensitive ways.
The bill also weakens existing restrictions on farmers to prevent soil erosion and wetlands degradation. It would have resulted in much greater damage, however, if not for the efforts of Senators Leahy (D-VT) and Chafee (RRI) and Rep. Boehlert (R-NY) to address various environmental concerns.
No comprehensive bill to weaken the Clean Water Act has yet been introduced in the Senate. Last May, the House passed a bill, H.R. 961, that reduces or lifts standards for water quality, wetlands protection, sewage treatment and agricultural/urban stormwater runoff.
On 1/23, the House passed a bill, H.R. 2567, that exempts states from setting standards protecting recreational, fish and wildlife uses for agricultural canals and other man-made conveyances. The bill has been referred to the Senate Committee on Environment and Public Works.
Endangered Species
The omnibus spending bill, H.R. 3019, as approved by Congress and signed by the President, still contains a moratorium on listing new endangered or threatened species, but President Clinton has the authority to waive it.
Sen. Reid’s (D-NV) amendment to the omnibus spending bill would have eliminated the current moratorium in listing new endangered or threatened species. On 3/13 this amendment was narrowly defeated 49-51.
Sen. Kempthorne (R-ID) is expected to hold hearings this spring on his bill (S. 1364) to make species protection programs voluntary. The House Resources Committee has approved a similar bill (H.R. 2275) sponsored by Reps. Young (R-AK) and Pombo (R-C A). Floor action is likely this spring.
Mining
Republican leaders have been forced to abandon for now a budget bill provision that allows multi-national mining companies to buy public land at a fraction of its value.
Bills (H.R. 1580/ S. 506) perpetuating mining subsidies, however, are pending before the House and Senate resources committees.
National Parks and Refuges
On 4/23, the House approved a bill, H.R. 1675, that opens all wildlife refuges to hunting and fishing by a vote of 287-138. No companion bill has yet been introduced in the Senate. ..........
Regulatory Repeal
On 4/24/96, the House Government Reform and Oversight Committee approved a bill, H.R. 2086, that provides more flexibility to local governments in their administration of environmental programs. As now written, it includes the authority to waive the application of various health and safety standards.
On 3/28, in the name of small business relief, Congress approved significant changes to the regulatory process as part of the debt limit extension bill, H.R. 3136. The bill waves existing environmental laws for small businesses and allows secret complaints to be filed against agency officials for "excessive enforcement."
On 3/15, Sen. Johnston (D-LA) and Sen. Robb (D-VA), circulated new "regulatory reform" legislation. The bill would make it more difficult to issue health and safety standards. Sen. Levin (D-MI) is working to find a compromise solution to the regulatory reform debate.
Safe Drinking Water Act
The House Commerce and the Transportation Committees held safe drinking water hearings on 1/31. The Senate passed a bill (S. 1316) on 11/29 that makes some improvements to the Act (such as authorizing a $1 billion annual fund for state projects to improve drinking water quality), but fails to address some serious threats such as contamination from arsenic and radon— known human carcinogens.
Superfund
On 2/13, Rep. Oxley (R-OH) circulated a new draft bill that would reduce industry cleanup liability even further than his earlier plan. Action is expected this spring.
Bills to weaken cleanup obligations for hazardous waste (H.R. 2500/ S. 1285) remain pending before the House Commerce and Transportation Committees, as well as the Senate Environment and Public Works Committee.
Takings
A floor vote on Sen. Dole’s (R-KS) bill, S. 605, requiring the government to pay polluters not to pollute is scheduled for the first week in May. The House has already approved a bill, H.R. 925, that requires the federal government to pay landowners to comply with the Endangered Species Act and Clean Water Act wetland rules.
WHAT YOU CAN DO
Many people wonder if there’s any point to contacting their members of Congress. The answer is an emphatic "yes."
The average citizen **can** make a difference. Hand-written letters, faxes, phone calls and email are very significant: if a lawmaker gets fifty calls a day on a certain issue, that makes a big impression.
So contact your Representative and Senators regularly and let them know what you think about legislation that endangers our environment and public health—especially when bills are coming up for a vote. If you do not feel you know enough about the specific legislation, make these general points (but USE YOUR OWN WORDS):
...Congress has no mandate to roll back a
quarter-century of environmental gains.
...You support stronger environmental laws.
...You oppose any law that gives polluters more rights
while leaving your family and natural heritage more vulnerable to pollution.
...You will follow their voting closely.
WHERE TO CALL: The Capitol Switchboard number is 202-224-3121. Ask to be connected to the office of your Representative or Senator.
WHERE TO FAX: Call the Capitol Switchboard and speak to the office of your Congressperson. Tell them you are a constituent and need their fax number.
WHERE TO WRITE:
The Honorable ___________ United States Senate
Washington, D.C. 20510
The Honorable ___________ United States House of Representatives Washington, D.C. 20515
WHERE TO EMAIL: A well-maintained list of Congressional email addresses (with phone and fax information as well) can be found on the World Wide Web at http://ast1.spa.umn.edu/juan/congress.html.
JOIN
Join the Raymond Proffitt Foundation to protect your Pennsylvania constitutional rights to clean air and water. The annual membership dues are $25, $15 for students and senior citizens. Make out your check or money order to the Raymond Proffitt Corporation (a non-profit 501 © (3) corporation), P.O. Box 723 , Langhorne, PA 19047-0723.
Membership Application
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Officers
Ray Proffitt............................... Chairman
Joe Kohler................................. .President
Margaret Spanier........................... Executive Director
Joe Turner...................................Sec/Tres
John Wilmer, Esq............................ Chief Counsel
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