After more than four years of litigation, PennEnvironment, the Sierra Club, and several of their local members have succeeded in imposing the largest penalty in Pennsylvania history against a water polluter under the federal Clean Water Act’s citizen enforcement provision.
GenOn Northeast Management Company, a subsidiary of GenOn Energy, Inc., must pay a total of $3.75 million and must act quickly to end the discharge violations still occurring at the company’s coal-fired Conemaugh Generating Station located near Johnstown.
The settlement agreement reached by the plaintiff groups and the company is embodied in a proposed consent decree, which was filed in federal court in Pittsburgh today and awaits approval by United States Magistrate Judge Robert C. Mitchell. The record payment includes a $250,000 civil penalty to be paid to the United States and an additional $3.5 million that the company will pay to the Foundation for Pennsylvania’s Watersheds to be used to fund restoration and preservation projects in the Conemaugh River watershed, which is the area affected by GenOn’s illegal pollution.
“While this historic penalty will send a strong message to other companies in Pennsylvania and throughout the region, it is equally important that the company is now committed, at long last, to complying with its legal discharge limits and to reducing its pollution of the Conemaugh River,” stated PennEnvironment Director David Masur. “This was a David and Goliath-style fight—and the ‘Davids’ were able to deliver a critical victory to the people of Pennsylvania.”
In March, Judge Mitchell ruled that GenOn had committed a staggering 8,684 violations of the federal Clean Water Act by discharging illegal levels of five different pollutants—some of them toxic—into the Conemaugh River since 2005. Judge Mitchell had scheduled a June 1 trial to determine how much to penalize the company for its violations and how to bring the power plant into compliance with the law.
Under the terms of the consent decree filed in court today, GenOn has agreed to achieve compliance with its permit limits in a timely fashion and to pay heavy, automatic penalties for any future permit violations. In addition, GenOn must perform tests to gauge the toxicity of its wastewater discharges and provide that information to the Pennsylvania Department of Environmental Protection (DEP).
“When we started this case we knew that if we could put a man on the moon more than 40 years ago, then we could get the Conemaugh power plant to comply with the environmental standards and pollution levels laid out in its clean water permits,” stated Masur.
In 2007, the environmental groups alleged that GenOn had been in continuous violation of its Clean Water Act discharge permit, discharging more than three million gallons of wastewater per day containing elevated levels of selenium, manganese, aluminum, boron, and iron into the Conemaugh River. The limits in GenOn’s permit were set by the DEP specifically to protect against degraded conditions in the river, and to help restore the river to health. On occasion, the company has exceeded its permitted pollution limits by over 1,000%, or more than ten times allowable levels.
“The Clean Water Act allows citizens to take legal action against chronic polluters when state and federal officials are unable—or unwilling—to protect water quality,” said Thomas Au, the Conservation Chair of the Pennsylvania Chapter of Sierra Club. “This is a significant victory for the people who live in the Conemaugh River watershed.”
“A clean Comemaugh River can be one of Pennsylvania's greatest natural resources and become a major economic driver for all the communities in the Conemaugh River watershed,” said Kurt Limbach, who owns a home just downstream of GenOn’s power plant, in Bolivar. “As a longtime member of both PennEnvironment and Sierra Club, I am proud of the lasting contribution these groups have made to overcoming this beautiful river’s legacy of industrial pollution.”
GenOn (formed by the merger of Mirant and Reliant Energy) is a Houston, Texas-based company with nearly forty-five power plants located across the nation, including eighteen power plants in Pennsylvania. GenOn’s Pennsylvania facilities have faced ongoing scrutiny and challenges over their environmental records. This includes the threat of legal action last year against the company’s so-called “clean coal” Seward power plant for nearly 12,000 Clean Water Act violations, as well as run-ins with the DEP at the company’s Cheswick, Keystone, Elrama, and Brunot Island power plants, all of which are located in Pennsylvania.
“It’s with a great sense of responsibility that the Foundation for Pennsylvania’s Watersheds will be able to address some of the ‘worst of the worst’ polluting sites and preserve ‘the best of the best’ in the Conemaugh Watershed through the use of this settlement monies,” stated John Dawes, Executive Director of the Foundation for Pennsylvania’s Watersheds.
In 2004, DEP entered into an agreement with the company not to enforce the pollution limits at issue in this case until 2011 or later—and DEP has already extended part of that agreement until 2012. In the citizen groups’ lawsuit, however, the federal court ruled on three separate occasions that this “side agreement” with DEP does not shield GenOn from its obligation to comply with federal law or with the company’s Clean Water Act permit.