Author:
Walter G. Wright
Plaintiff, Citizens Against Pollution ("CAP"), and Defendant, Ohio Power Company ("OPC"), disagreed as to whether the emissions of flue gas presents an imminent and substantial endangerment to the health of CAP members. The Defendant moved for summary judgment, claiming that there was no genuine issue of material fact.
The court in
Citizens Against Pollution v. Ohio Power Co., 2006 U.S. Dist. LEXIS 100839 (S.D. Ohio July 13, 2006) concluded that the disagreements among the parties' retained experts created a genuine issue of material fact as to whether the flue gas emissions are likely to present an imminent and substantial endangerment to the health of CAP members. Therefore, the court denied Defendant's Motion for Summary Judgment.
Defendant is the owner and operator of the General James M. Gavin Power Plant ("Gavin Plant") in Cheshire, Ohio. The Gavin Plant is a coal burning facility that has two electric generating units and two 830 feet stacks. The chemicals sulfur trioxide and sulfuric acid are byproducts of the coal combustion process. Both chemicals pass through the equipment at the plant before exiting the stack as part of a flue gas. The plant's equipment removes some but not all of the sulfur trioxide from the flue gas. To remove the sulfur dioxide, another chemical byproduct of combustion, the company installed wet scrubbers. The wet scrubbers lowered the concentration of both sulfur trioxide and sulfuric acid in the flue gas.
Due to a change in regulations, OPC installed selective catalytic reactors ("SCR") to remove nitrogen oxides from the flue gas streams. The SCRs only operate during the "Ozone Season," from May 1 to September 20. The SCRs were successful in removing nitrogen oxides from the flue gas; however, the SCRs had an undesired effect, which increased the conversion of sulfur dioxide to sulfur trioxide in flue gas. The increased amounts of sulfur trioxide caused the flue gas to appear blue. After the SCRs were installed, Plaintiff and Defendant both noticed that on numerous occasions, the blue flue gas took the shape of a plume and appeared to touch down on the land around the Gavin Plant. Plaintiffs alleged that during the plume touchdowns CAP's members experienced watery eyes, burning throats, headaches, and breathing problems.
Defendant tried to remedy the situation by implementing air testing and entered into a Memorandum of Agreement with the United States Environmental Protection Agency. The concentration of flue gas was lower than before the SCRs were installed. However, CAP's members contend that they still experienced the same physiological symptoms when a plumes touch down on the land around the Gavin plant.
CAP's Amended Complaint alleged that OPC violated the Resource Conservation and Recovery Act ("RCRA), 42 U.S.C. § 6972(a)(1)(B); the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9659(d)(1); and the Emergency Planning and Community Right-to-Know Act ("EPCRA"), 42 U.S.C. § 11046(d)(1). OPC's Answer denied all of CAP's allegations, and moved for Summary Judgment on CAP's RCPA claim.
OPC claimed that summary judgment in its favor is warranted on CAP's RCRA claim because 1) the airborne emissions from the Gavin Plant are not "solid or hazardous waste" as defined under RCRA; and 2) CAP failed to prove that the material emitted from the Gavin Plant may present an imminent or substantial endangerment to public health as the statute requires. OPC argued that because the flue gas was not disposed of onto land, and it is not liquid, solid, or semisolid, or contained gaseous material, it is not solid waste. In response, CAP contended that stacks at the Gavin Plant are RCRA solid waste and the flue gas does pose an imminent and substantial threat to the health of CAP members and other Cheshire residents.
In order to prevail, under RCRA, CAP was required to establish that the Gavin Plant is contributing to the "handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health of the environment." 42 U.S.C. §6903(15). CAP does not allege that the emissions from the Gavin Plant are hazardous; rather, their argument turns on whether the emissions qualify as solid waste. RCRA defines "solid waste" as "any garbage, refuse, sludge from waste treatment plant, water supply treatment plant, or air pollution control facility another discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operation"¦" 42 U.S.C. § 6903 (27).
The court reasoned that the Gavin Plant was not a waste treatment plant, and it was not an air pollution facility; however, it was engaged in industrial operations. For that reason, the question became whether the flue gas emissions from the Gavin Plant are "discarded material, including"¦liquid, semisolid, or contained gaseous material resulting from the industrial, commercial"¦operations"¦" 42 U.S.C. §6903 (27). The court, using a dictionary's definition of "discard" to "case aside, reject, abandon, or to give up" found that the flue gas was discarded or placed on the land when the frequently seen blue plumes touched the grounds near the homes of residents in Cheshire.
The court, interpreting the RCRA statute broadly, held that the flue gas was discarded material that resulted from industrial operations within the meaning of the RCRA; therefore, the flue gases were solid waste within the meaning of the act. Further, the court stated that the statute was intended to give courts authority to grant affirmative equitable relief to the extent necessary to eliminate the risk posed by toxic waste.
OPC's experts argued that the flue gas did not pose a present threat to the health of CAP's members because the emission levels of sulfur trioxide and sulfuric acid are lower now than they were before. CAP's experts argued that the residents of Cheshire still experience the same physiological symptoms and conditions caused by the blue plumes. Due to the difference of opinion between the experts, the court concluded that the disagreement created a genuine issue of material fact as to whether the flue gas emissions may present imminent or substantial health concern for the CAP members. For that reason, the court denied OPC's Motion for Summary Judgment.
A copy of the opinion can be downloaded below.
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