Plaintiffs Sierra Club and Riverkeeper Satisfied with Agreement
by Elizabeth Ahearn, Chapter Conservation Program Associate
Metal recycling facilities with outdoor stockpiling and processing of materials are a major source of stormwater contamination. As a result of stormwater runoff, harmful substances including heavy metals, oil, chlorinated solvents, asbestos, and chemical residues enter waterways and harm water quality. The Clean Water Act prohibits stormwater discharges from industrial activities unless authorized by a National Pollutant Discharge Elimination System (NPDES) permit. As a delegated state NPDES permitting agency, the New York State Department of Environmental Conservation (DEC) utilizes a statewide “General Permit” for industrial stormwater discharges in New York. The General Permit requires facilities to prepare a stormwater pollution prevention plan with control measures and best management practices, conduct routine site inspections, adhere to monitoring and reporting requirements, and comply with sector-specific permit requirements.
Ben Weitsman & Son is the largest privately owned scrap metal operation on the East
Coast. When Weitsman facilities collect waste materials, particularly ferrous and non-ferrous metals, they are stored, processed, crushed, compacted, and sometimes shredded. The majority of activity and storage at each facility takes place outdoors, meaning pollutants are exposed to stormwater. Stormwater sampling results found that every single one of Weitsman’s ten facilities in New York had discharges of heavy metals and other pollutants far over the benchmarks in the state’s General Permit.
In May 2021, the Sierra Club Atlantic Chapter and Riverkeeper, represented by Super Law Group, filed a Clean Water Act “citizen suit” in federal district court against Ben Weitsman & Son, Inc. and its sister company Upstate Shredding Disc, Inc. to address the violations and prompt necessary action to protect New York’s waters. Specifically, the lawsuit focused on Weitsman’s violation of the state’s General Permit for failing to implement the required “best available and best conventional treatment technologies” to control its stormwater pollution. It also stated that the Weitsman facilities contributed to violations of state water quality standards for the waterways receiving the discharges, especially the standards for heavy metals, polychlorinated biphenyls, mercury, and toxic chemicals such as benzene. Additionally, the lawsuit highlighted Weitsman’s failure to monitor and report stormwater runoff, as required by the General Permit, at eight of its ten facilities.
In response to the required “Notice of Intent to Sue” letter sent in January 2021, Weitsman proposed settlement negotiations. Ultimately, the negotiations led to a settlement through a “Consent Decree” between Sierra Club and Riverkeeper and Weitsman on December 21, 2023. A Consent Decree is a settlement that resolves a dispute between two parties, with the consent of the involved parties. It is a legally binding agreement in which the court supervises the implementation of the agreement. Under the settlement, Weitsman must implement detailed plans and control measures to bring its facilities into compliance with the General Permit and the Clean Water Act. The Decree provides a phased schedule for Weitsman to fully implement the Stormwater Pollution Prevention Plans (SWPPPs) and new Best Management Practices (BMPs) at each of its facilities, consisting of an Implementation Phase, a three-year Monitoring Phase, and a final Termination Phase.
Terms of the settlement agreement are as follows:
- Weitsman agreed to modify its Stormwater Pollution Prevention Plans at the facilities and add enhanced stormwater pollution prevention measures.
- The facilities purchased magnetic sweeper attachments, trained additional employees to conduct stormwater sampling and implement pollution prevention practices, developed Pond Maintenance Plans and Storm Preparation Plans, and installed rain gauges.
- Individual facilities implemented new filtration devices, committed to additional monitoring of stormwater discharges, enhanced measures to reduce stormwater from contacting potential pollutants, and committed to installing new Best Management Practices.
- Weitsman is required to provide the Sierra Club and Riverkeeper copies of all inspection records, sampling results, corrective action documentation, SWPPP amendments, and reports filed with any regulatory agency under the General Permit throughout the three-year term of the Monitoring Phase.
- Weitsman reimbursed $435,000 for Plaintiffs’ attorneys’ fees and costs, printing, postage, filing fees, and consultant fees.
- Weitsman agreed to pay $455,000 to the American Farmland Trust as an “Environmental Benefit Payment.” The funds will be used for projects relating to water quality improvements by reducing nutrient runoff in the waters of New York.
The Consent Decree, effective until its termination on June 30, 2030, should be effective in preventing future violations, as it is a legally binding agreement that holds the company accountable. The Atlantic Chapter is satisfied with the outcome of the settlement, and hopes it will help bring these facilities into compliance with the Clean Water Act and reduce future stormwater pollution. The recycling of scrap metal will continue to be an important part of creating industrial circular economies and remain a mainstay of climate friendly policies moving forward. For their part, the Weitsman Company recognizes their positive role in the recycling market and willingly negotiated the terms of this agreement as a show of good faith that their scrap yards will lead by example for the rest of the industry.