Trio of FirstEnergy plant closings in region should make lawsuit moot, utility says

Brian Bowling
| Saturday, Sept. 21, 2013, 9:01 p.m.

An eight-year legal effort by Pennsylvania and four other states to force three power plants to meet modern pollution limits could end without a court decision.

FirstEnergy, which acquired the coal-fired power plants in Armstrong, Greene and Washington counties when it bought Allegheny Energy Inc. in 2011, contends that U.S. District Judge Joy Flowers Conti should dismiss the 2005 lawsuit because the company closed the Armstrong plant and will close the others on Oct. 9.

Company spokeswoman Stephanie Thornton said they are not closing the plants because of the lawsuit, but the closings should end the dispute. Company officials are “hopeful that the court will decide ... that we have no Clean Air Act liability,” she said.

Regulators in the five states believe the judge should allow them to pursue their claim that the utility ignored state and federal pollution laws for more than two decades.

‘Not interrelated'

John Poister, spokesman for the Pennsylvania Department of Environmental Protection, said the agency doesn't comment on pending lawsuits. But he noted, “The two issues are not interrelated. The suit is not affected by FirstEnergy's decisions regarding the future of the two plants.”

When Congress amended the Clean Air Act in the 1970s, it established national air pollution limits but exempted older power plants from meeting them.

The rationale was that companies should not be forced to install expensive pollution controls on plants nearing the ends of their lives and, if they took steps to extend operations of the plants, companies could install the controls with the upgrades.

The states contend that many utilities, including Allegheny Energy, made upgrades but ignored the requirement to install pollution controls.

FirstEnergy contends the work done at the plants — Armstrong Power Station in Armstrong County, Mitchell Power Station in Washington County and Hatfield's Ferry Power Station in Greene County — between 1993 and 1999 wasn't enough to trigger the requirement.

The lawsuit seeks fines for the violations and an injunction to keep the company from operating the plants without installing controls.

In asking Conti to dismiss the case, FirstEnergy contends that appellate court decisions have established that regulators had to seek civil penalties within five years of a violation. Since the last plant modification was in 1999 and the states didn't file the lawsuit until 2005, they missed that deadline, FirstEnergy claims.

PJM request denied

Lawyers for the states disagree and argue that similar state law violations alleged in the lawsuit have that statute of limitations.

An injunction, FirstEnergy claims, would be moot because it will close the plants. The company has partially disassembled the Armstrong plant.

The states contend that a request by PJM Interconnection that FirstEnergy keep Hatfield and Mitchell open shows they could continue operating. Valley Forge-based PJM oversees stability of the region's power grid.

By filing a maintenance plan with the state, the utility could keep operating permits active until they expire in 2017, the states claim. FirstEnergy could decide “to reactivate the plants by reinstalling equipment, rehiring staff and entering into new coal contracts,” the states argue.

Thornton said that First-Energy rejected PJM's request and hasn't changed its plan to close the plants.

“We are confident there are no reliability issues that would require us to keep the plants in operation,” she said.

PJM sent a letter to FirstEnergy on Thursday saying that it agrees the plants can be retired without hurting the grid's reliability

FirstEnergy suggested Conti could dismiss the lawsuit but stipulate that it could reopen if the company attempts to reactivate the plants.

Brian Bowling is a Trib Total Media staff writer.

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