Sins of the Father Aren’t a Concern for Coal Plants

     PITTSBURGH (CN) – Operators of one of the most toxic coal-burning power plants in the nation dodged a federal lawsuit for Clean Air Act violations.



     The dismissal highlights challenges the Environmental Protection Agency faces in regulating emissions at the nation’s older power plants, which are subject to less stringent pollution-control standards as so-called “grandfathered” facilities built before President Richard Nixon signed the Clean Air Act in 1970.
     Acknowledging “that society at large continues to bear the brunt” of prodigious sulfur dioxide emissions at a grandfathered plant in Homer City, Pa., U.S. District Judge Terrence McVerry said he must dismiss the United States’ case against the plant’s operators because they cannot be liable for the alleged failures of prior owners.
     In January, the United States sued the massive plant’s current operator, EME Homer City Generation, claiming the prior owners, defendants New York State Electric and Gas Corporation and Pennsylvania Electric Company, violated the Clean Air Act by making major modifications to the plant throughout the 1990s without first obtaining the requisite permits.
     If the permits had been obtained, the companies would have been required to install state-of-the-art pollution-control technology to stanch sulfur dioxide emissions at the plant, the United States said.
     In 2009, two of the plant’s three boilers were among the largest sulfur dioxide emitters in the nation, according to the court.
     Pennsylvania and New York intervened days after the United States filed suit in January, followed by New Jersey in February.
     At issue in the case were four modifications that took place at the plant throughout the 1990s.
     Environmental regulators did not formally challenge the modifications at the time.
     Pennsylvania Electric Co. applied for an operating permit in 1995, and Pennsylvania’s Department of Environmental Protection issued the permit nearly a decade later.
     Grandfathered or not, a plant needs preconstruction permits before undergoing a “major modification” that would significantly increase emissions.
     In June 2008, the EPA told EME Homer City Generation that the Homer City plant was operating in violation of the Clean Air Act because the previous operators failed to obtain preconstruction permits for the modifications.
     Those permits, the government said, would have triggered the mandatory installation of so-called Best Available Control Technology (BACT), which would have dramatically reduced the plant’s sulfur dioxide emissions.
     In dismissing the case Wednesday, Judge McVerry pointed to “structural” shortcomings in amendments made to the Clean Air Act in 1977.
     Rules aimed at regulating construction projects at grandfathered facilities are “vague” and rely on plant operators to voluntarily apply for preconstruction permits, deciding for themselves whether or not the permits are necessary.
     “In this case, the former owners apparently decided in 1991, 1994, 1995 and 1996 that permits … were not needed for the projects at issue,” McVerry wrote. “Accordingly … permits were not applied for or obtained and the plant continued with its normal operations.”
     “Because the projects at issue in this case occurred 15-20 years ago and no enforcement action was taken until 2008, the limitations period has long since expired,” the 41-page opinion states. “Accordingly, no civil penalties are recoverable” for failure to obtain the pre-construction permits.
     “Plaintiffs have failed to plead any facts to explain the nearly two decade delay in enforcement,” McVerry added. “Plaintiffs’ theory of harm is undercut by the lengthy review and ultimate issuance of a[n]…operating permit for the plant.”
     The judge also said the current operator, EME Homer City Generation, cannot be liable for the failure of the plant’s former owners to obtain the permits.
     McVerry rejected the government’s request for injunctive relief requiring installation of BACT infrastructure at the plant.
     Injunctive relief is meant to address continuing statutory violations, but the United States is alleging “wholly-past failures to obtain pre-construction permits,” he found.
     The judge also rejected the government’s argument that the plant’s operating permit is null and void because it was issued based on the former operators’ incomplete application.
     “The current owners cannot be held liable for the alleged deficiencies and omissions in the underlying application submitted by the Former Owners,” he wrote.
     McVerry also dismissed a public nuisance claim, ruling that the claim is preempted by the Clean Air Act and Pennsylvania’s Air Pollution Control Act.
     A related class action that McVerry dismissed Thursday had alleged Clean Air Act violations that were duplicative to the government’s case, according to the court, which directed the plaintiffs to litigate their state-law claims in state court.

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