Alert 636: Citizens for Clean Power vs DNREC vs NRG’s Indian River Generating Station

25962c9c1Green Delaware Alert 636
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Citizens for Clean Power vs DNREC vs NRG’s Indian River Generating Station

“On his way out the door, [DNREC Secretary] John Hughes took care of NRG again.”
— Citizens for Clean Power

“One way to avoid outrage and ugly surprises is to put all proposed settlements up for public comment for 30 days.  This has long been required in federal court settlements.”
— Alan Muller, Green Delaware

NRG Energy’s Indian River Generating Station (IRGS) is one of Delaware’s worst polluters, being roughly on the scale of Valero’s Delaware City Refinery.  The most recent Green Delaware analysis of IRGS emissions showed about 186,000 pounds per day coming out of the smokestacks, NOT including greenhouse gases ( http://greendel.org/item.xhtml?name=alert_0506). That’s 67,870.000 pounds annually — a LOT. This is expected to decrease some in the next few years with shutdown of the two smallest generating units and with installation of air pollution controls on the remaining units 3 and 4. This by no means that IRGS should be left alone. Green Delaware wants all coal burning units in Delaware phased out as we discussed in Alert 631: Delaware needs to stop burning coal .

Meanwhile, NRG continues to violate its air permit… for years and years…

5176 violations?

On November 6, 2008, Citizens for Clean Power, represented by the Mid-Atlantic Environmental Law Center, filed a “Notice of Intent to Sue under the Federal Clean Air Act and Delaware State Implementation Plan.“  This letter alleges 4,405 opacity (smoke) violations and 771 “NOx” violations between 2004 and recently.  (The DNREC has told Green Delaware that it believes the NOx violations were not real but resulted from a mis calibrated monitor.  Maybe, but the violations are over a 3-month period.  Why leave the monitor unfixed for so long?)

Both the Clean Air Act and Clean Water Act contain “citizen suit” provisions that allow private citizens affected by violations of these laws to bring an enforcement suit in federal court after providing 60 days prior notice to the violator and to state and federal environmental agencies.

The alleged polluter has 60 days from the postmarked date of the letter to correct the problem and/or the responsible regulatory agency has 60 days to act.  Often the regulators take some token action to preclude a citizen suit from going forward.  The official language is that regulators must be “diligently prosecuting” an action.

The Clean Air Act provides for up to $32,500 per day per violation. NRG’s documented violations have spanned 4 years, and if we do the math, that’s a big number hanging over NRG.

On January 5, 2008, the 59th day, the DNREC filed a complaint against NRG in Superior Court ( http://www.awm.delaware.gov/AQM/Documents/NRG%20Complaint%201-05-09.pdf ) and signed a “consent order” ( http://www.awm.delaware.gov/AQM/Documents/NRG%20Consent%20Order%201-05-09.pdf ) with NRG.  This Order calls for NRG to pay a “civil penalty” of $5000 and buy DNREC an air pollution meter worth around $60,000.  A few other provisions include “…shall consider establishing an employee incentive program that rewards managers and operators for operating the Units with reduced opacity.

Citizens for Clean Power weren’t happy, to say the least.  In an emailed statement, CCP alleged:

Yesterday, DNREC announced its own lawsuit against NRG for the very violations CCP has alleged and that the agency has done nothing about since 2004.  Why did DNREC take this action exactly 60 days before CCP could file its lawsuit?  BY ENTERING INTO A TOKEN SETTLEMENT WITH NRG, DNREC AND JOHN HUGHES ALSO ATTEMPT TO BAR THE FILING OF CCP’S LAWSUIT. 

On what basis did NRG Indian River solicit DNREC’s legal action to stop CCP’s impending citizen suit?  Under the Clean Air Act, “diligent prosecution” in a court by a state agency precludes a private citizen suit if the agency files before the citizen suit can be filed.

On his way out the door, John Hughes took care of NRG again.  Under a citizen lawsuit, IRPP could have been fined as much as $32,500 per violation and could have been ordered to pay additional funds to mitigate the environmental damage.  Instead, the Secretary and the Agency stepped in to try to stop us for $1.00 per violation and a few token changes, with no environmental mitigation penalties.
NRG’s profits from IRPP make it a mega-million $ “cash cow” for the company.  DNREC’s attempted interference with citizen’s rights is disgraceful.  Change is desperately needed at DNREC. Please write Governor-elect Jack Markell at:  Jack Markell <campaign@markell.org> or call him at 302 672-6700. Ask him to appoint a Secretary who will put public health, safety and corporate accountability above industry profit.

CCP spokesperson Pat Gearity said today that the DNREC action was a surprise.

DNREC air quality manager Ali Mirzakhalili, on the other hand, said he had talked to CCP’s lawyer Michael Fiorentino “a couple of weeks before the holidays” and “told him we are settling this.”  He said he sought input from CCP about what the organization would like to see in such a settlement but never received a response.  Contacted by Green Delaware, Fiorentino said only that “I wouldn’t characterize it quite that way.

Mirzakhalili said “it was not that we made a point to block somebody else” but that DNREC wants to “avoid future recurrences” of violations and “do our jobs.” He said the notice letterhoned my priorityfor enforcement actions against NRG. He said he had expected CCP to be “pleased by our actions.

Whom to believe here? If you are Alan Muller, a bit of both sides.

Clearly NRG pollutes way too much, whether or not it is violating a permit. Clearly the DNREC does way too little enforcement and way too much self-promotion.  (The DNREC press release announcing the settlement didn’t mention the CCP notice letter.)

Clearly the CCP notice letter prodded the DNREC into taking (weak) action.

Clearly the DNREC action WAS timed to preclude a citizen suit under the Clean Air Act and this, to me, is disgraceful.

On the other hand, I believe CCP, through counsel, was contacted and should not be so surprised.

Per usual, we try to report the truth and this often has the effect of offending all sides …….

One way to avoid outrage and ugly surprises is to put all proposed settlements up for public comment for 30 days.  This has long been required in federal court settlements.

For another take on this, see: http://legalectric.org/weblog/2690/

Alan Muller

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