Big Coal Ash Settlement in Pennsylvania Shows One Path Forward for Bay Restoration

by Evan Isaacson

August 08, 2019

Chesapeake Bay and clean water advocates in Pennsylvania and the Mid-Atlantic region celebrated a significant legal win last week as Talen Energy, owner of the notorious Brunner Island coal-fired power plant, agreed to settle a lawsuit filed by the Environmental Integrity Project (EIP). The settlement is big news first and foremost because it will result in the closure and excavation of a massive coal ash disposal pond and the treatment of a number of other ponds, thus eliminating a significant source of pollution contaminating water supplies for residents in Central Pennsylvania. The successful settlement and the widespread press coverage that followed also serve as a pointed reminder of the importance of citizen enforcement of our environmental laws.

Under the settlement, Pennsylvania's Department of Environmental Protection (DEP) will collect a $1 million penalty from Talen Energy. That's particularly notable because DEP was not an original plaintiff in this case. EIP filed on behalf of three environmental organizations that represent thousands of concerned Pennsylvanians because, despite years of violations at this high-profile industrial site, the Commonwealth took no action to stop the ongoing contamination until citizens and their lawyers first announced their intent to sue.

Any number of reasons could explain the inaction of DEP and state officials, from deficient resources to regulatory capture. Regardless of the reason, the Brunner Island settlement teaches an important lesson: Concerned citizens can move agencies to act by simply filing a notice of intent to sue those who choose to ignore our foundational environmental and public health laws.

That's a key takeaway, and not just for Pennsylvanians and the advocates who work on their behalf. What happened in the Brunner Island case can and should be a shot in the arm for the Susquehanna River, Chesapeake Bay, and thousands of other waterways in the region by inspiring concerned citizens and clean water advocates to stand up where government officials are unwilling to do so.

By EPA's own admission, more than 11,000 facilities and sites across the United States were in "significant noncompliance" with the Clean Water Act in 2018 – a whopping 29 percent of all facilities. These violations resulted in more than 4 billion pounds of pollution beyond legal limits flowing into communities and waterways. Importantly, this estimated volume of illegal pollution undoubtedly understates the actual amount because a large percentage of these facilities have been deemed in significant noncompliance for failing to even report their pollution levels to state and federal authorities as required.

A number of states in the Chesapeake Bay watershed have recently balked at taking additional measures to protect the Bay, citing supposed fiscal concerns. Such concerns are shortsighted for many reasons, not the least of which is that by failing to reduce water pollution, the states are only shifting costs to the public (e.g. increased health care costs and sick days) and to other businesses that suffer the ill effects of that pollution (e.g. fishing and recreational industries). Moreover, fiscal constraints or not, the simple and cost-effective strategy states should use to address the problem is to simply enforce the laws that are already on the books.

EPA data show that more than 1,000 of the facilities and sites in significant noncompliance with Clean Water Act permits are located in the Chesapeake Bay watershed. Simply reducing pollution by enforcing the law would meet a big chunk of the pollution reduction requirements under the current Bay restoration framework and shift costs away from the public and back where they were created.

Unfortunately, the recent release of the seven state "Watershed Implementation Plans" (WIPs) made clear that states were deliberately choosing to ignore this low-cost pollution reduction strategy. Why do I say that states were "deliberately choosing" to ignore this option? Because EPA gave specific instructions to the states to include in their WIPs a "full listing of all [Clean Water Act] permits" and urged states to develop greater "regulatory oversight" capacities. Having read several state WIPs, it's clear that states are greatly overlooking the role of Clean Water Act compliance in restoring the Chesapeake Bay.

The good news, as illustrated by the Brunner Island settlement, is that Clean Water Act enforcement is one tool citizens have in their toolbox. Unlike many other tools that are solely available to government agencies, the Clean Water Act confers to the public a basic right to take action against illegal water pollution. With EPA and states slowly walking away from the Chesapeake Bay restoration goals and their duty to protect water quality, it will be increasingly important for citizens to understand their legal rights and take matters into their own hands.

Top image by Wikimedia Commons user Brian StansberryCC Attribution 3.0 Unported.

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Evan Isaacson, J.D., is a CPR Policy Analyst. He joined the organization in 2015 to work on its Chesapeake Bay program, having previously worked as a policy analyst at the Maryland Department of Legislative Services.

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