NELC Reliant Suit Spurs State Action

Conemaugh Generating Station: Reliant Energy’s 1,700-megawatt, coal-burning power plant near New Florence, PA.

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.

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Judge Declines To Order EIS For Dioxin Landfill

Bay City, MI—In May, Judge Thomas L. Ludington of the U.S. District Court for the Eastern District of
Michigan ruled that the U.S. Army Corps of Engineers complied with the National Environmental Policy Act (NEPA) by preparing only a brief environmental assessment of its plans to build an uncapped, unlined landfill to dispose of 3.1 million cubic yards of dioxin-contaminated sediments that will be dredged from the upper Saginaw River.

The judge rejected NELC’s argument that the project requires a full environmental impact statement (EIS) because of its significant effect on the environment. “The judge accepted most of our legal arguments, and adopted standards for reviewing NEPA disputes that should make it easier for environmental plaintiffs to win future EIS cases in Michigan,” explained NELC Attorney Stephanie
Matheny. “However, he simply did not agree with us on the facts of this case.” Although plaintiffs Environment Michigan and Lone Tree Council dispute the judge’s factual conclusions, they opted not to
appeal the decision because a reviewing court would be unlikely to overturn his findings. Nonetheless, the Corps may still be required to conduct an additional NEPA review of the project. Documents obtained from the Environmental Protection Agency indicate that Dow Chemical Company may be planning to use the Corps’ landfill to dispose of sediments from Dow’s federally-mandated cleanup of the Tittabawassee and Saginaw rivers. The Corps did not evaluate this use in its environmental assessment, and did not design the landfill to accommodate the extraordinarily high levels of dioxins that have been found in the Dow sediments.

“The Corps’ own documents acknowledge that Dow’s sediments are 50 times more contaminated than those the Corps planned to put in the landfill,” said Environment Michigan’s Mike Shriberg. “Clearly, this would be a significant change in the scope of the project, and the Corps should prepare a full EIS before allowing Dow to use the landfill.”

Despite the court’s ruling, construction of the landfill has come to a halt as a direct result of the Corps’ poor environmental review. When it did its NEPA analysis, the Corps ignored requests from the public to prepare a hydrogeological study to determine the likelihood of groundwater contamination. Once the landfill site was purchased, however, Michigan’s Department of Environmental Quality (DEQ) ordered the Corps to conduct such a study.

The study’s results confirmed that dioxins could be released to groundwater through sand breaks in clay under certain parts of the landfill. As a result, the Corps was forced to reduce the size of the landfill by approximately 60 acres to avoid the most porous areas, limiting the project’s ability to meet the Corps’ long-term disposal needs. In addition, DEQ is now requiring the Corps to install a costly slurry wall to reduce the likelihood of groundwater contamination under the remaining portion of the landfill.

The numerous design changes have caused significant delays and cost overruns. As of August, the cost of the project had ballooned from the Corps’ initial estimate of $1.5 million to as much as $4.6 million. As a result, construction at the site—originally slated to have been completed in 2006—has stopped. The Corps also faces a completely unanticipated problem – the partially completed landfill is already full of water because of heavy rains. This calls into question whether the Corps will be able to comply with its water quality certification once the landfill is in operation.

“Ironically, the Corps initially justified the selection of this site with the argument that it would be less expensive than other alternatives and would meet the Corps’ disposal needs for 20 years,” said Lone Tree Council’s Michelle Hurd Riddick. “If it had done its job right from the beginning, the Corps might instead have chosen a more economical alternative that was both better for the environment and better suited to the Corps’ disposal plans.”

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Sewage Overflows Contaminate Narragansett Bay

Youth congregate at Elm Street Pier, an unofficial swimming area a few hundred feet from a sewer overflow outfall in Newport, R.I.

Providence, RI—Each year, an estimated 3,500 people suffer from illnesses caused by recreational exposure to sewage overflows at U.S. beaches.

This estimate, from a 2004 EPA report, likely captures only a fraction of the total number of illnesses attributable to sewer overflows, because “unrecognized” beaches and recreational activity, such as fishing and boating, were excluded from the study.

Sanitary sewer systems are designed to carry only raw sewage from residences and industry, whereas combined sewer systems are designed to carry stormwater runoff as well.

While the Clean Water Act requires both systems to provide treatment prior to discharge, large volumes of stormwater can overwhelm treatment plants during heavy rainfall, causing untreated wastewater to be diverted to the nearest lake, river, stream or coastal waterway.

NELC has been working with Environment Rhode Island to prompt local and state officials to take concrete steps to eliminate the discharge of untreated sewage into Rhode Island’s Narragansett Bay.

The repercussions of sewer overflows in the bay are severe. Rhode Island has 76 sewer overflow outfalls, and all of them discharge into the Narragansett Bay watershed. The state has listed the bay as an impaired water body due to excessive amounts of pathogens and nutrients.

Waterborne pathogens from sewer overflows can pose a major hazard to public health, causing infections, dysentery, hepatitis A and gastroenteritis.

Children are especially susceptible to pathogenic illnesses from sewer overflows. They tend to swallow the water during recreation, and to ingest large amounts for their size. Teenagers and adolescents also tend to congregate at “unrecognized” beaches, which are often closer to overflow discharge pipes and thus more contaminated.

Subsistence fishers, who consume more seafood than the general population, are also at increased risk. Although consumption advisories have been posted, the bay is dotted with families raking for clams and oysters and consuming their catch.

Further, pathogens and nutrients from combined and sanitary sewer over- flow threaten the survival of fish species by reducing dissolved oxygen levels and killing bacteria essential to aquatic ecosystems of the bay.

Technology to reduce the impact of sewer over- flows is widely available. The city of Providence has nearly completed construction of an underground tunnel that will store excess flow during wet weather and transport the wastewater to a secondary treatment plant during dry weather. Numerous other municipalities in the Narragansett watershed, however, have not seriously addressed the issue.

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