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Appeals court hears Indiana County power plant case

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Thursday, May 16, 2013, 12:01 a.m.
 

The government should be able to pursue its claim that the former owners of an Indiana County coal-fired power plant failed to install required pollution controls in the 1990s because the absence of those controls makes the plant one of the largest sources of air pollution in the country, a lawyer representing state regulators argued Wednesday.

“That's the primary point — to stop the ongoing emissions from this power plant,” said Claude Patton of the New York Attorney General's Office.

Federal environmental regulators in January 2011 sued the current and former owners of the Homer City power plant, claiming that the former owners failed to get required permits in the 1990s and upgraded two of the plant's three coal-fired units without installing required air-pollution controls.

Pennsylvania, New Jersey and New York intervened on the federal government's side.

U.S. District Judge Terrence McVerry dismissed the lawsuit in October 2011, saying that the government missed its five-year statute of limitations to hold the former owners responsible for the violations and couldn't hold the current owners responsible for violations they didn't commit.

The government appealed the decision to the 3rd U.S. Circuit Court of Appeals, which heard oral arguments in the case Wednesday in the federal courthouse, Downtown.

The three-judge panel asked government lawyers how the court could impose an injunction on companies that haven't owned the plant since 1999 and committed the alleged violations at least five years before that.

“It's hard for me to believe it's taken 20 years to get to that question,” said Circuit Court Judge D. Michael Fisher.

The government contends that the violation is ongoing, so it still has grounds to require the former owners to pay for pollution controls.

EME Homer City Generation L.P. bought the plant in 1999 from Pennsylvania Electric Co. and New York State Electric and Gas Corp. EME Homer City Generation is indirectly owned through limited liability companies by General Electric Co. and MetLife Inc.

The Homer City plant emits about 96,000 tons of sulfur dioxide yearly and is one of the largest sources of air pollution in the country, regulators say.

However, Chet Thompson, a lawyer for the current owners, said they are installing air pollution scrubbers that will reduce sulfur dioxide by 95 percent.

The judges questioned whether that $700 million project makes the whole issue moot. John Ellwood, a lawyer for the previous owners, argued that it does.

The government contends that although the scrubbers will reduce pollution, the current owners haven't proved they will bring them into compliance with environmental standards.

The government is seeking to fine the current owners potentially millions of dollars for operating the plant for five years without bringing it into compliance.

Thompson argued that the current owners aren't liable for violations committed by the previous owners.

The judges took the arguments under advisement.

Brian Bowling is a staff writer for Trib Total Media. He can be reached at 412-325-4301 or bbowling@tribweb.com.

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