Pittsburgh, PA—As reported in our last newsletter, NELC filed a Clean Water Act enforcement suit in April against Reliant Energy to address long-standing industrial pollution of Pennsylvania’s Conemaugh River.
For the past three years, the company’s Conemaugh Generating Station, a 1,700-megawatt coal-burning power plant, has been regularly violating its discharge limits for toxic heavy metals.
Just days before NELC filed suit in federal court, however, the Pennsylvania Department of Environmental Protection (DEP) quietly filed a nearly identical enforcement suit against Reliant in Pennsylvania state court. DEP’s lawsuit focuses exclusively on the violations detailed in NELC’s February
2007 pre-suit notice letter, even though DEP had entered into a 2004 consent agreement with Reliant promising to allow the company to commit such violations without fear of enforcement.
At the same time it filed suit, the DEP proposed to reissue—and weaken—Reliant’s wastewater discharge
permit by suspending, for three years, the very effluent limits DEP was now purporting to enforce.
The Pittsburgh Post-Gazette, reacting to these obvious inconsistencies, ran the following headline: “DEP sues firm over pollution that it allowed.”
“This headline precisely captured the Alice-in- Wonderland nature of DEP’s actions in this case,” noted NELC Senior Attorney Josh Kratka. “We all wanted to know whether the agency was trying to enforce—or to eviscerate— Reliant’s permit.”
Under certain circumstances, a prior-filed agency enforcement suit will preclude citizen plaintiffs from maintaining a Clean Water Act lawsuit in federal court over the same violations.
But to have preclusive effect, the state enforcement action must be “diligently” prosecuted.
Given the inconsistency of the agency’s actions up to that point, NELC had serious concerns as to whether DEP would vigorously enforce the law.
Fortunately, a Pennsylvania statute gives the citizen plaintiffs—here, PennEnvironment and Sierra Club—the right to join as co-plaintiffs in the agency’s state court suit.
NELC attorneys took immediate steps to protect PennEnvironment’s and Sierra Club’s legal rights, and to ensure that DEP’s actions meet the pollution reduction requirements of the Clean Water Act.
In response to the proposed permit reissuance, NELC prepared and submitted comments to DEP strongly opposing any weakening of effluent limits. The Clean Water Act explicitly prohibits such “backsliding” if the weakened limits would result in a violation of state water quality standards.
“The backsliding clause applies to Reliant,” explained NELC Attorney Theresa Labriola. “The discharge limits for the Conemaugh Station were set at levels necessary to prevent the company’s discharge from causing further harm to this already impaired river.”
At the same time, NELC contacted DEP to suggest joining forces. The one two punch of simultaneous state and federal enforcement suits appears to have captured the undivided attention of Houston-based Reliant Energy.
The company owns 37 power plants in the United States and had nationwide revenues of $10 billion in 2005.
Shortly after the lawsuits were filed, Reliant contacted both NELC and DEP seeking to initiate settlement talks. As a result, both lawsuits and the potential permit reissuance have now been put on hold pending the outcome of settlement negotiations aimed at resolving all outstanding enforcement and permitting issues.
One very important and tangible step toward cleaning up the Conemaugh River has already occurred. As a direct result of NELC’s lawsuit, DEP conducted an in-depth, facility-wide compliance inspection of the Conemaugh Generating Station at the end of April.
That inspection uncovered previously unsuspected water pollution problems at the site. These include the unpermitted discharge of highly discolored runoff that could contain heavy metals, possible groundwater contamination from the coal storage pile, and the presence of oil and excess nutrientsi n the plant’s wastewater discharge channel.
These new violations, as well as the violations outlined in NELC’s complaint, will be addressed in settlement negotiations.
In March 2006, Penn-Environment released a study entitled “Troubled Waters,” in which data gathered under the Freedom of Information Act revealed that Reliant’s Conemaugh power plant was routinely discharging nearly three million gallons of wastewater per day containing illegal concentrations of aluminum, boron, iron, manganese, and selenium. The report also showed that Reliant was violating its monitoring requirements for mercury.
The judges in the two cases have given the parties until late winter to try to reach an agreement.
