Brayton Point LLC makes arguments to dismiss lawsuit; Somerset residents attend court hearing

Brayton Point LLC, the company that owns the land of the former Brayton Point Power Plant, was back in court today after making a motion last month to dismiss the criminal charges against them brought on by the town of Somerset for failure to pay over $3 million in fees for not adhering to a cease-and-desist order to stop scrap metal operations.

Attorney Patrick McBurney represented the company with Attorneys John Macy and Arthur Frank representing the town of Somerset in the matter.

Former Somerset Board of Selectwoman and Brayton Point resident Kathy Souza was in attendance for today’s hearing along with a dozen residents from Somerset, including Attorneys Patrick and Nicole McDonald. Town of Somerset Health agent Tim Turner was also in attendance.

Souza, who was a named defendant in a 2021 land court case where Brayton Point LLC was a plaintiff, had this to say before today’s hearing:

“I’m happy to see the town pursuing the fines owed by BPLLC. They should be held to the exact same standard any resident would be held to if they ignored a town officials order to cease and desist activity. This sets precedence going forward for all badly behaved companies that operate in this region.”

Attorney Patrick McDonald was firm in his stance on the town holding Brayton Point LLC accountable:

“The residents of Brayton Point have never been against responsible business, and we want to see a business that was not being responsible be held accountable. Brayton Point LLC has to operate alongside our residential neighborhood. We were there first. This area was never an industrial area until 1959 and before that, it was a farm first. Brayton Point was never meant to be a port.”

In the matter of the motion to dismiss, Attorney McBurney argued that the company’s violations over a more than 400-day period should be limited to one violation per day, not for each example of operations beyond the cease and desist. McBurney argued that operating after a cease and desist could encompass something as simple as turning a light on at the business and that the issue is a matter of interpretation of the law.

Attorney Macy for the town of Somerset argued that there were more than 40 intended violations of the the cease and desist order per day, but spent his time arguing that the hearing today was specifically regarding the motion on behalf of the defendant to dismiss the case. Macy stated that the threshold to dismiss was not met, speaking specifically to a previous clerk magistrate hearing where McBurney was in attendance.

Macy shared that during that hearing, which lasted over an hour, he and Frank brought forth two witnesses and McBurney did not ask them questions.

“He (McBurney) was given an opportunity to participate in the clerk magistrate hearing and he didn’t” said Macy.

Macy insisted that their complaint meets the threshold for moving forward and that it is up to the town at trial or future proceedings to prove the matter.

McBurney shared that his client believes that while in violation of the cease and desist order, Brayton Point LLC actually only owes approximately $68,000 and not the over $3 million in fees the town has charged. McBurney asserted that he has been given authorization to take a plea in the matter for that amount on behalf of his client.

The judge overseeing today’s hearing asked both parties why they have not been able to work this matter out in the past. Attorney Macy stated that they have tried and they he is sure they will try again but that the motion to dismiss should be denied. Macy said they have everything ready to show they are prepared to move forward.

“If they want to call our bluff, we are ready.”

The judge took the motion to dismiss under advisement and will alert both parties of his decision at a later date. He did, however, advise both parties today before the matter ended:

“Both sides need to be more realistic on the value of this case and try to work it out.”

In the meantime, the case moves forward with a pre-trial hearing scheduled for May 14th.