'Become more realistic': Somerset and Brayton Point at odds over scrap pollution fines

FALL RIVER — "Both sides, at some point, need to become more realistic about what the value of the case is. Try to work it out."

Those were the parting words of Fall River District Court Judge Paul Pino during Tuesday’s court hearing where St. Louis, Missouri-based Brayton Point LLC asked the court to dismiss a $3.5 million criminal case brought by the town of Somerset.

Pino did not immediately rule on whether he would dismiss the case and took it under advisement.

In a somewhat unusual move, the town brought criminal charges against the owners of Brayton Point for misdemeanor zoning violations that occurred in 2020. It is seeking to collect $3.5 million in outstanding fines levied against the company after the town filed a cease-and-desist.

The order was meant to stop tenants, including a scrap metal business, from trucking materials in and out of the property, which once housed a power plant, the largest coal-fired generating station in New England at the time.

History of Brayton Point power plant: The site's move from 'Filthy Five' to a clean future

Attorneys dispute number of alleged violations at Brayton Point

Somerset attorneys Arthur Frank and retired judge Joseph Macy, and Brayton Point attorney Patrick J. McBurney appeared before Pino to argue the criminal case's merits, or lack thereof, and talk dismissal.

“Their complaint alleges over 11,000 offenses, OK. The general law provides that they can allege one offense per day. That’s the invalidity,” said McBurney.

Macy argued that, by law, the motion to dismiss should be denied.

“All I can say, your honor, if he wants to call our bluff and go to trial, we’ll produce the 11,000 violations,” Macy responded. “But today, we’re here with the matter before us. I’m just a simple country lawyer. I can only read the law as it is.”

Somerset ordered to produce more evidence

In 2020, the town started receiving complaints from residents that uncovered trucks delivering scrap metal were causing excessive dust in violation of the town’s zoning bylaw. 

The Somerset Zoning Board had given Brayton Point LLC a permit to allow operation at the site for the scrap metal business and a salt wholesale and storage business through a Planned Development permit.

The town’s building inspector denied an enforcement request by the complainants. The decision was appealed to the Zoning Board, which ordered the operations to stop or face $300 daily fines for each truck that entered Brayton Point. The town claims the fines total $3.5 million.

Somerset filed two misdemeanor complaints against Brayton Point for zoning bylaw violations and municipal bylaw or ordinance violations in January.

The town’s legal action comes as the Prysmian Group of Italy, which is investing more than $200 million to build a new submarine cable factory for offshore wind at Brayton Point, is set to complete a purchase and sales agreement for 47 acres at the site.

Some residents, including members of Save Our Bay Brayton Point, have been fighting industrial development of the more than 300-acre parcel of waterfront land.

A number of residents attended the brief hearing on Tuesday and later conferred with Macy and Frank outside the courtroom.

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Somerset attorney says town has evidence proving thousands of violations

In court filings, Brayton Point’s attorney indicated the fines add up to $11,561.33, but has offered to settle the issue by paying $68,100.

McBurney said he was authorized by Brayton Point's owners to offer the amount at a future date.

Macy said he won’t speculate why the two sides have not come up with a compromise on the amount of the fines Brayton Point will pay.

“We have tried. I suspect we will try again between now and the ultimate trial date,” said Macy.

McBurney said that if the matter moves forward, Brayton Point will seek more detail on the town’s assertion that there were 11,000 violations.

Macy said the town has “plenty of evidence as to these thousands of” violations.

“And you’ll turn that evidence over, right?” said Pino.

The next court date is May 14.

This article originally appeared on The Herald News: Brayton Point, Somerset at odds in $3.5M suit over air pollution fines