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The Effluent Society

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In 2004, RRI Energy opened its Seward Electric Station. Built on an old coal-fired power-plant site on the Conemaugh River, near Johnstown, the facility burned not pulverized coal, but waste coal -- a lower-energy mining byproduct long stored on site. Like old mines, the huge "gob piles" of coal refuse produce the acid drainage that's long plagued Southwestern Pennsylvania, and that turned rivers like the Conemaugh orange. 

Because waste-burning plants shrink mountains of gob, Pennsylvania law encourages their construction. By agreement with the state's Department of Environmental Protection, RRI also mixed alkaline coal ash into waste-coal piles in hopes of remediating acid seepage into the Conemaugh, a river the state classifies as "impaired" by pollution.

"Here's a site that's causing an impact to this river. Here's a chance to incrementally improve conditions," says Sam Harper, program manager for water management for DEP's Southwest region.

"It's one of those everyone-wins situations," says Laurie Fickman, spokesperson for Houston-based RRI. "It's an all-good thing." In 2004, the new Seward station received the Pennsylvania Governor's Environmental Excellence Award.

But not everyone agrees with such assessments.

Environmental groups, for instance, contend that burning waste coal creates even more pollutants, like mercury, than burning conventional coal. Burning gob leaves a higher percentage by volume of highly toxic ash. And "remediation" or no, Seward's gob and ash piles have continued releasing toxic metals into ground and surface water.

In May, four groups -- the Sierra Club, PennEnvironment, Defenders of Wildlife and Citizens for Pennsylvania's Future -- announced they would sue RRI for "significant and ongoing violations" of federal and state clean-water laws at its Seward plant. The groups said that from 2004 to 2009, the plant racked up about 12,000 violations, and that DEP did nothing about it.

The "intent to sue" notice began a mandatory 60-day waiting period. In July, days before the deadline, DEP announced it had issued a new water-discharge permit for the plant (replacing a permit that expired in 2006). The plaintiffs say that if it prevents future pollution, the new permit is welcome. But the permit also likely pre-empts the groups' litigation. And absent penalties for RRI's past violations, they say, DEP's action represents a greater regulatory failure. 

By law, DEP can levy a fine of up to $37,500 for each day a company exceeds a discharge limit. At the Seward plant, that would potentially total "millions" in fines, says Lisa Widawsky, the Environmental Integrity Project attorney who was the plaintiffs' co-counsel. DEP is "really not doing their job if they don't penalize," she says. "They're sending a terrible message to other polluters that it's OK to do business in Pennsylvania."

The environmental groups say those 12,000 violations took several forms. One was exceedances of permitted discharges of toxins like iron, aluminum, manganese and acid from a pipe that drained from the ash pond and coal-refuse pile. Meanwhile, wastewater from the plant frequently caused temperature spikes in the river of up to 16 degrees; using RRI's own records, the groups counted some 440 such violations in a single two-month period in 2007. The permitted limit is 10 spikes of two degrees or more per year.

But Widawsky says that half of the violations -- more than 5,000 of them -- involved discharges from the refuse pile that were simply unregulated -- not even covered under state or federal permits.

The figures come from RRI's own monitoring reports, which were submitted to DEP. Why no fines?

DEP spokesperson Katy Gresh says DEP might still fine RRI. But one issue is that DEP doesn't regard most of the discharges as violations: Until the new permit was issued, DEP oversaw the plant primarily under terms of a 2000 consent decree (since amended twice) that superseded the permit. And DEP's Harper says the agency has sought to work with RRI to reduce pollution at Seward, rather than simply fining it because discharges continued.

While Harper says there is some evidence pollution from the site has lessened, he acknowledges, "I was honestly hoping to see more dramatic improvement than this." Harper also acknowledges that the environmental groups' threatened lawsuit "kind of sped up the process" of issuing a new permit.

That new permit requires RRI to treat the permitted discharges and end the unpermitted discharges. But critics likes Widawsky say the problem remains that DEP too infrequently enforces compliance by polluters, let alone penalizes them. In fact, in 2007, environmental groups filed a federal lawsuit against RRI (then Reliant) for pollution violations at its nearby Conemaugh Generation Station.

Environmental groups say another culprit is funding for enforcement: After years of cutbacks, DEP's 2010-11 budget is $145 million -- a level not seen since 1994.

But Widawsky notes that it doesn't take much staff to levy a fine. Says PennEnvironment director David Masur, "If the penalties hurt more, so that it was better to comply than to break the law, then [polluters would] comply."

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