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Appeals court says residents can sue owner of Cheswick power station

| Tuesday, Aug. 20, 2013, 11:06 a.m.

When Kristie Bell bought her Springdale home in 2008, she realized it was close to the Cheswick power plant and asked company officials about the plant's visible plume.

“They said it was just water vapor, steam,” she said. “Steam that has stuff floating in it?”

Bell and Joan Luppe sued GenOn Power Midwest LP in April 2012 on behalf of residents living within one mile of the 570-megawatt, coal-fired power plant who contend it causes a nuisance because particulate matter and white fly ash land on their properties and it emits cancer-causing chemicals.

The 3rd U.S. Circuit Court of Appeals on Tuesday overturned a lower-court decision dismissing the case.

The ruling is significant because it means the residents can pursue property damage claims against the plant owner even though it is complying with state and federal air regulations.

NRG Energy bought parent company GenOn Energy Inc. last year. NRG energy spokesman Dave Gaier said the company is reviewing the decision.

James DePasquale, the lawyer for the plaintiffs, said he hopes to bring the case to trial soon.

“We have to get the class designated and then start discovery and then get a trial date,” he said.

Bell is happy with the decision, which gives her and about 1,500 other property owners a chance to obtain an injunction against and damages from NRG Energy Inc.

“I just want everyone to do the right thing,” she said.

The utility argued in court that it is extensively regulated and that regulatory framework leaves “no room for private litigants, trial judges or juries” to second-guess regulators' decisions.

U.S. District Judge Terrence McVerry agreed and dismissed the lawsuit in October.

In overturning McVerry's decision, a three-judge appellate panel cited a Supreme Court ruling that the Clean Water Act set minimum protections and didn't prevent lawsuits seeking higher standards.

The same holds true for the Clean Air Act, the panel ruled.

“It's a good decision but not revolutionary,” said Joe Osborne, legal director at Group Against Smog and Pollution in Garfield.

Until McVerry's ruling, most environmental plaintiff attorneys thought the lawsuits were valid, so the 3rd Circuit ruling just returns the case law to status quo, said Osborne and Emily A. Collins, a professor at the University of Pittsburgh's Environmental Law Clinic.

The Utility Air Regulatory Group, which describes itself as an “unincorporated trade association” of electric utilities, intervened in the 3rd Circuit Case because of its concern over “the chaos that would almost certainly ensue if common law nuisance suits were to serve as the basis for regulation.”

The group and its lawyers could not be reached. A spokesman for the Edison Electric Institute, a nonprofit representing investor-owned electric utilities, declined comment.

Myron Arnowitt, state director of Clean Water Action, said he has heard complaints for years from people living near power plants.

“That certainly sounds like the right ruling to me,” he said. “The federal law is there to protect people from air pollution sources. It's not meant to try to stop citizens from taking action because of air pollution problems.”

Brian Bowling is a Trib Total Media staff writer. Reach him at 412-325-4301 or bbowling@tribweb.com. Staff writers John Oravecz and Tim Puko contributed.

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