Joint mot. to dismiss with prejudice via entry of a consent order, joint mot. for settlement, Charleston Waterkeeper et al v. Frontier Logistics LP, No. 2:20-cv-01089 (D.S.C. 2021)(Plastic pollution settlement)

The operator of a facility that receives, packages and transports pre-production plastic pellets for shipping, Frontier Logistics LP (Frontier), and local environmental groups, Charleston Waterkeeper and the South Carolina Coastal Conservation League, filed a joint settlement agreement seeking to resolve the environmental groups’ suit alleging that the facility released thousands of plastic pellets (known as nurdles) into local waterways in violation of the federal Clean Water Act and the Resource Conservation and Recovery Act. Complaint, Charleston Waterkeeper et. al v. Frontier Logistics LP, No. 2:20-cv-01089 (D.S.C. 2020), retrieved from https://www.southernenvironment.org/uploads/words_docs/FINAL_COMPLAINT.pdf.

The joint settlement agreement was filed with the United States District Court for the District of South Carolina on March 3, 2021 and, as of March 10, 2021, is currently pending court approval. Joint mot. to dismiss with prejudice via entry of a consent order, joint mot. for settlement, Charleston Waterkeeper et al v. Frontier Logistics LP, No. 2:20-cv-01089 (D.S.C. 2021) https://www.southernenvironment.org/uploads/words_docs/2021-03-03_Settlement_Agreement_(Fully_Executed_with_Exhibits_-_To_File).pdf.

Under the agreement, a mutually agreed on consultant would be retained to conduct a third-party audit at Frontier’s expense. Id. at Art. 1.1. The consultant will “review and make recommendations for all aspects of the facility and the operations therein that may be relevant to the release and migration off-site of plastic pellets, flakes, and powders (as applicable), specifically to include source controls, containment controls, stormwater management systems, standard operating procedures, spill prevention and response procedures, and internal audit systems.” Frontier must implement all “commercially reasonable measures” to “prevent the release and migration off-site of plastic pellets, flakes and powders,” contribute $225,000 toward plaintiffs’ attorney fees and costs, and $1 million (over four years) “to be used for beneficial environmental projects of Plaintiffs’ choosing.” Id. at Arts. 1.1, 1.2, 1.4. Plaintiffs’ expert would also be allowed to tour the facility. Id. at Art. 1.1.2, 1.1.3. The consultant would also be allowed to conduct two annual reviews following the initial audit, and Frontier would be required to implement any “additional and commercially reasonable changes regarding the implementation measures”. Id. at Art. 1.1.7.

The citizen groups agreed to jointly file a consent order to dismiss their suit with prejudice, release Frontier from current and future claims related to the subject matter of the suit, and work collaboratively with Frontier on a joint public statement regarding the settlement. Id. at Arts. 1.3, 1.5, 2.1, 3.1, 3.2. The parties requested that the Court retain jurisdiction to enforce the terms and conditions of the settlement agreement. Id. at Arts. 1.1.7, 1.5.