Plaintiffs and PADEP Reach Settlement Over NPDES Permits for Ten Coal-Fired Power Plants

Plaintiffs and PADEP Reach Settlement Over NPDES Permits for Ten Coal-Fired Power Plants

By Zachary Murphy, Staff Contributor

On January 12th, the Pennsylvania Department of Environmental Protection (PADEP) reached a settlement with petitioners Sierra Club and Lower Susquehanna Riverkeeper Association, requiring PADEP to draft new National Pollutant Discharge Elimination System (NPDES) permits for ten coal-fired power plants that had been operating with expired permits. [1] In Pennsylvania, NPDES permits – which control the discharge of certain pollutants into regulated waters primarily by imposing technology requirements on sources of pollution[2] – must be renewed within five years of being issued.[3] Most of the ten power plants subject to the settlement had been operating under expired permits for five to ten years.[4] In an extreme case, one plant’s permit had expired in 2000.[5]

The plaintiffs filed suit against PADEP on June 15, 2017 to compel the state agency to draft new NPDES permits for the expired plants.[6] As the state administrator of the Clean Water Act, PADEP is required to ensure that regulated sources of water pollution are operating under valid permits,[7] which identify the technological standards that the sources must meet.[8] These standards are promulgated by the EPA[9], and are “technology-forcing” in that they require sources to adopt increasingly more effective pollution-reducing technologies over time.[10] The ten plants were allegedly operating with technology that complied with their expired permits, but did not meet current EPA standards.[11]

The plants subject to the settlement have received the attention of both the media and the legal field in connection with negative local and regional environmental impacts. The Brunner Island power plant has been cited by PADEP for heat shock fish kills and its general pollutant discharging operations.[25] The plant is also the subject of multiple law suits filed by surrounding states alleging that the plant contributes to interstate air pollution in violation of the Clean Air Act.[13] The Cheswick power plant was ranked as the fourth highest discharger of lead among power plants in a 2016 report on toxic water pollution by the Environmental Integrity Project.[14]

The terms of the settlement require PADEP to draft new NPDES permits for each source based on current EPA regulations and submit the drafts on set dates.[15] All drafts are due before September 2018.[16] Prior to the settlement, Ted Evgeniadis of petitioner Lower Susquehanna Riverkeeper stated that PADEP proposed issuing the new permits for these plants in 2022 or 2023.[17] Under the settlement, PADEP commits to issuing the final permits by the end of March 2019.[18]

“We applaud the [PA]DEP for stepping up and doing the right thing for the people of Pennsylvania by updating these water permits,” states Patrick Genter, a campaign representative for the Sierra Club.[19] A spokesperson for Talen Energy, owner of plants subject to the suit, states “[T]he plant is in compliance and prepared to continue to participate with PADEP in the normal permit renewal process.”[20]

The case has been stayed until PADEP meets terms of the settlement and could be reopened if PADEP fails to issue the permits in a timely manner.[21]

[1] Reid Frazier, Settlement Requires Coal Plants to Get Permits with Tighter Pollution Controls, Allegheny Front (Jan. 12, 2018), https://www.alleghenyfront.org/settlement-requires-coal-plants-to-get-permits-with-tighter-pollution-controls/.

[2] 33 U.S.C. § 1311(b).

[3]25 Pa. Code § 92a.7(a).

[4] Complaint at 3, Sierra Club v. Pa. Dep’t of Envtl. Prot., No. 260 (M.D. 2017) (Pa. Come. Ct. filed Jun. 15, 2017), https://assets.documentcloud.org/documents/4347313/NPDES-suit-against-PA- DEP.pdf.

[5] Id. at 26.

[6] Id. at 33.

[7]25 Pa. Code § 92a.1(a); 25 Pa. Code § 92a.2 (“Federal Act–The Federal Water Pollution Control Act (33 U.S.C.A. §§ 1251-1387) also known as the Clean Water Act or CWA”).

[8] 33 U.S.C. § 1311(b).

[9] Id.

[10] E.g., Claudia Copeland, Cong. Research Serv. , RL30030, Clean Water Act: A Summary of the Law 2 (2016).

[11] Complaint, supra note 4, at 3.

[12] Ad Crable, Brunner Island Power Plant Continues to Pollute, Hearing Set on New Discharge Permit, LancasterOnline (Jul. 7, 2017), http://lancasteronline.com/news/local/brunner-island-power-plant-continues-to-pollute-hearing-set-on/article_7714a818-6281-11e7-9d68-bbc0bb55fcc2.html.

[13] David Weissman, Connecticut Sues EPA over Brunner Island, York Dispatch (last updated May 18, 2017, 5:09 PM), https://www.yorkdispatch.com/story/money/business/2017/05/18/connecticut-sues-epa-over-brunner-island/101840198/.

[14] Expired Permits, Poor Monitoring Undermine Rules for Toxic Water Pollution from Coal Plants, Envtal. Integrity Project (Aug. 11, 2016), http://www.environmentalintegrity.org/news/expired-permits-poor-monitoring-undermine-rules-for-toxic-water-pollution-from-coal-plants/.

[15] Stipulation of Settlement and Application for Stay at 2, Sierra Club v. Pa. Dep’t of Envtl. Prot., No. 260 M.D. 2017 (Pa. Commw. Ct. filed Jun. 15, 2017), http://www.pennfuture.org/Files/Admin/DEP-and-Sierra-Club-Settlement-Final–01-10-2018.pdf, [hereinafter Stipulation].

[16] Id.

[17] David Weissman, Settlement: Brunner Island Must Renew Waste Discharge Permit, York Dispatch (Jan. 11, 2018, 3:53 PM), https://www.yorkdispatch.com/story/money/business/2018/01/11/settlement-brunner-island-must-renew-waste-discharge-permit/1025528001/ [hereinafter Brunner Island].

[19] Stipulation, supra note 15, at 3.

[20] Settlement Forces Coal-Fired Plants to Reduce Toxic Pollutants in Waterways, PennFuture (Jan. 11, 2018), https://www.pennfuture.org/News-Settlement-Forces-Coal-Fired-Plants-to-Reduce-Toxic-Pollutants-in-Waterways.

[21] Brunner Island, supra note 17.

[22] Stipulation, supra note 15, at 3-4.

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