The Copper Discharge Decree

Question 39: The Copper Discharge Decree

Your role

You represent Selwick Plating, a metal-finishing company, in settlement negotiations with the fictional River Protection Authority. This is a drafting assignment. The Authority has established violations, and the parties want a consent-decree term sheet covering money, corrective work, reporting, and stipulated penalties.

Governing law

Assume the following rules apply:

1. Civil penalty calculations begin with the supplied gravity schedule and add the violator's economic benefit from delayed compliance. Settlement may reduce gravity for cooperation and prompt correction, but it may not waive economic benefit without a written inability-to-pay finding.

2. For copper exceedances, gravity is $18,000 per violation day. For pH exceedances, gravity is $6,000 per violation day. On a day with both, gravity is capped at $20,000. Each calendar day is counted once under the cap.

3. Selwick's verified economic benefit from delaying treatment upgrades is $180,000.

4. The Authority has approved a 15 percent cooperation reduction from gravity, not from economic benefit, because Selwick self-reported and preserved sampling data.

5. Injunctive terms must be specific, objectively measurable, reasonably related to the violations, and technologically feasible. A decree may require treatment upgrades, interim controls, monitoring, reporting, and independent verification, but not unrelated plant modernization.

6. The required final control is an ion-exchange polishing system operational within 120 days. Interim terms may require weekly sampling, immediate notice of exceedances, and reduced production during an exceedance until compliance is confirmed.

7. Stipulated penalties must be graduated and reasonably related to likely harm and enforcement cost. The authorized schedule is: missed report, $1,000 per day for days 1 through 10 and $3,000 per day thereafter; missed construction milestone, $4,000 per day for days 1 through 15 and $10,000 per day thereafter; new copper or pH exceedance, $8,000 per day, increasing to $16,000 per day after three exceedance days in any rolling 60-day period.

8. A force-majeure clause may excuse delay caused by an event beyond reasonable control only if Selwick gives notice within five days, mitigates, and proves causation. Increased cost, contractor scheduling that could reasonably have been planned, and ordinary equipment failure are not force majeure.

9. The decree may state that Selwick does not admit disputed legal conclusions while admitting jurisdiction and the monitoring data. The Authority may release civil claims for the disclosed violations through the effective date, but not unknown violations or future noncompliance.

10. The decree requires public comment and court approval. Compliance reports and payments must identify a responsible officer.

Facts

During a six-month period, Selwick had:

• 18 days with copper exceedances.
• 6 days with pH exceedances.
• 4 days on which both copper and pH exceeded limits.

Thus, 14 days involved copper only, 2 days involved pH only, and 4 days involved both. The Authority accepts that breakdown.

Selwick self-reported after a new environmental manager found the data. It stopped the highest-risk production line for twelve days, preserved all samples, and hired an engineer. The parties agree that the ion-exchange system will cost approximately $640,000 and can be operational within 120 days if ordered within ten days.

The Authority's first draft demands a $900,000 civil penalty, replacement of every wastewater pipe in the plant, daily sampling forever, and stipulated penalties of $50,000 for any missed report. It offers no release.

Selwick is prepared to pay the penalty produced by the supplied schedule, complete the ion-exchange project, conduct weekly sampling for twelve months, use a third-party verifier at days 60 and 120, and accept the authorized stipulated-penalty schedule. It wants a civil release for disclosed pre-effective-date violations and a standard force-majeure clause.

Assignment

Draft a consent-decree term sheet in final form that includes:

• The gravity calculation, cooperation reduction, economic benefit, and final civil penalty.
• Payment timing.
• The ion-exchange design, order, construction, startup, and 120-day operational milestone.
• Interim sampling, exceedance response, production controls, and reporting.
• Third-party verification.
• The authorized stipulated-penalty schedule.
• Force majeure, notice, and mitigation.
• Preservation of access and enforcement rights.
• A properly limited nonadmission clause and civil release.
• Public-comment and court-approval conditions.

Do not include the Authority's unrelated plant-wide pipe replacement, perpetual daily sampling, unsupported $900,000 demand, or $50,000 missed-report penalty.

Q39 key (Copper Discharge Decree)

1. Gravity is 14 x $18,000 + 2 x $6,000 + 4 x $20,000 = $344,000. The 15 percent gravity reduction is $51,600, leaving $292,400. Add $180,000 economic benefit for a final civil penalty of $472,400. Missed: the negotiated money term is untethered to the binding schedule.
2. The term sheet should provide a defined payment date or short installment schedule with interest or acceleration for default, not the unsupported $900,000 demand. Missed: the client accepts materially excess penalty or leaves payment unenforceable.
3. Require order within ten days, design and construction milestones, startup testing, and operation by day 120, with weekly sampling for twelve months and immediate exceedance notice. Missed: injunctive relief is too vague to perform or enforce.
4. During an exceedance, require reduced or halted affected production until compliant sampling confirms control. Third-party verification at days 60 and 120 should report to both parties. Missed: another discharge occurs without a defined response or verification.
5. Use the authorized stipulated schedule exactly: reports at $1,000 then $3,000; construction at $4,000 then $10,000; exceedances at $8,000, rising to $16,000 after three days in 60. Missed: punitive or toothless enforcement terms replace the supplied balance.
6. Force majeure requires five-day notice, mitigation, and proof of causation, excluding ordinary cost, foreseeable scheduling, and equipment failure. Missed: legitimate external delay is unprotected or routine delay becomes an escape clause.
7. Include access, records, responsible-officer certification, public comment, and court approval. Permit nonadmission of disputed legal conclusions while admitting jurisdiction and monitoring data. Missed: the decree cannot be approved or enforced.
8. Release civil claims for disclosed violations through effectiveness only, preserving unknown and future matters. Exclude plant-wide pipe replacement and perpetual daily sampling as unrelated and disproportionate. Missed: settlement buys no peace or imposes work unconnected to the violations.