Federal appeals court reinstates lawsuit against Pennsylvania coal-fired power plant

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Two women have the right to sue a coal-fired power plant in Springdale Borough even though the plant complies with state and federal environmental regulations, a federal appeals court panel ruled today.

The women's lawsuit contended that damage to property and quality of life came from the plant's emissions of fly ash, chemical compounds and odors.

The ruling against GenOn Power Midwest's Cheswick plant -- now owned by NRG Energy, Inc. -- came from a three-judge panel of the 3rd Circuit Court of Appeals, which argued in a precedential opinion that the Clean Air Act is "a regulatory floor, not a ceiling, and expressly held that states are free to impose higher standards on their own sources of pollution, and that state tort law is a permissible way of doing so."

That reversed Pittsburgh-based U.S. District Judge Terrence McVerry's dismissal of the case last October, when he ruled that the plaintiffs' suit would have circumvented Congress and other regulatory agencies by imposing another set of environmental standards.

NRG acquired GenOn on Dec. 14th, 2012, spokesman Dave Gaier said.

"We just received the decision today and we're still reviewing it," he said.

He said he could not comment further on the case including elements from the original lawsuit filed in the Allegheny Court of Common Pleas in April 2012, which said at least 1,500 households near the plant are impacted by "fly ash, barium compounds, copper compounds, dioxin and dioxin-like compounds, hydrochloric acid ... hydrogen fluoride, lead compounds" and other substances the plant emitted.

Kristie Bell, a lead plaintiff in the case, said she decided to join the lawsuit after noise, particulate matter and sulfur smells emitted from the plant damaged her property and disrupted her family's life.

Ms. Bell, 34, who lives with her 10-year-old son and fiance a few blocks from the plant, supports today's ruling.

"I think it's the right thing to do to say that people have a voice," she said. "We're going to turn this over and say 'No, they can sue you and [the plant has] to show that they're doing the right thing.'"

James DePasquale, who joined a Detroit attorney to represent the plaintiffs in the lawsuit, helped convince the 3rd circuit the jurisprudence on the issue is in his clients' favor.

"We never understood the argument they were making or how they could make it," he said. "The Clean Air Act specifically allows, whether they are complying with their emission permits, if they dirty property or harm you in any way, that you can bring a cause of action against them."

The decision sends the case back to district court, where Mr. DePasquale hoped to get class action certification before heading to trial.

Paul K. Stockman, an attorney listed for the Cheswick power station, could not be reached for comment.

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Alex Zimmerman: azimmerman@post-gazette.com or 412-263-3909.


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