IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sierra Club and Lower Susquehanna
Riverkeeper Association,

:
:
:
Petitioners,
:
v.
:
:
Department of Environmental Protection
:
of the Commonwealth of Pennsylvania and :
Patrick McDonnell, Secretary,
:
Department of Environmental
:
Protection, in his official capacity,
:
:
Respondents.
:

No. ______________

COMPLAINT AND PETITION FOR REVIEW OF AGENCY INACTION
OR, IN THE ALTERNATIVE, PETITION FOR MANDAMUS RELIEF
NOTICE TO DEFEND
You have been sued in court. If you wish to defend against the claims set
forth in the following pages, you must take action within 30 days (pursuant to
Pennsylvania Rule of Appellate Procedure 1516(b)) after this Petition and Notice
are served by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against
you. You are warned that if you fail to do so, the case may proceed without you
and a judgment may be entered against you by the Court without further notice for
any claim or relief requested by Petitioners.

 AND NOW comes petitioners, Sierra Club and Lower Susquehanna
Riverkeeper Association, by and through their undersigned counsel, and hereby
files this Complaint and Petition for Review of Agency Inaction or, In The
Alternative, Petition For a Writ of Mandamus against the Department of
Environmental Protection and its Secretary, Patrick McDonnell, averring as
follows:
I.

INTRODUCTION
1.

The federal Clean Water Act, 33 U.S.C § 1251, et seq., requires that

before a coal power plant may discharge pollutants into the Nation’s waterways the
owner must obtain a permit – called a National Pollution Discharge Elimination
System (“NPDES”) Permit – designed to minimize and mitigate the adverse
environmental impacts of those discharges. Id. § 1311. Pursuant to the
Commonwealth’s Clean Streams Law, 35 P.S. § 691, et seq., the Pennsylvania
Department of Environmental Protection (hereafter “DEP”) administers this
NPDES permitting program for coal power plants within the Commonwealth. See
25 Pa. Code § 92a, et seq.
2.

A critical feature of this permit program is a firm, five-year limit on

each permit, requiring DEP to issue revised, and increasingly protective, permits
every five years. 33 U.S.C § 1342(b)(1)(B); 25 Pa. Code § 92a.7(a). Congress
2

 requires permit replacement every five years in recognition of the fact that
technological improvements will inevitably allow coal power plants to further
minimize and mitigate their discharges over time. S. Rep. 414, 92d Cong., 2d
Sess., at 42 (1971).
3.

This Petition Concerns eleven (11) Commonwealth coal power plants

whose expired NPDES Permits were last issued well more than five years ago, and
some of which are continuing to operate under expired permits now more than ten
years old. These coal power plants are: (1) Brunner Island Steam Electric Station
near York Haven; (2) Bruce Mansfield Coal power plant in Beaver; (3) Cheswick
Power Station in Springdale; (4) Conemaugh Generating Station in New Florence;
(5) Homer City Station in Homer City; (6) Keystone Generating Station in
Shelocta; (7) Montour Steam Electric Station in Washingtonville; (8) Seward Coal
power plant in New Florence; (9) Cambria Cogeneration Facility in Ebensberg;
(10) Colver Power Project in Colver; and (11) Ebensburg Power Company in
Ebensburg.
4.

As Congress anticipated, technological improvements in recent years,

which the United States Environmental Protection Agency (“EPA”) has
incorporated into updated federal Clean Water Act regulations and guidance,
render the standards in all eleven of these expired permits woefully out-of-date.

3

 The required revised permits will incorporate significantly improved effluent
discharge limits and other requirements.
5.

The Clean Water Act and Pennsylvania’s implementing regulations

mandate that DEP issue new NPDES permits to these eleven coal power plants
every five years. The Pennsylvania Constitution further provides that the residents
of the Commonwealth “have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic and esthetic values of the environment.”
Penn. Constitution § 27.
6.

By failing to timely issue revised NPDES permits for the eleven coal

power plants, DEP is violating these non-discretionary mandates, and harming
Petitioners and their members’ interests in enjoying the waterbodies into which
these plants are polluting and nearby environments. Accordingly, Petitioners seek
relief directing DEP to finally issue these overdue permits on an expeditious
timetable, as expressly permitted by the Clean Streams Law, see 35 P.S. § 691.601
(c) (providing that “any person having an interest which is or may be adversely
affected may commence a civil action on his own behalf to compel compliance . . .
where there is alleged a failure of the department to perform any act which is not
discretionary with the department . . . .”), or alternatively, through a writ of
mandamus.

4

 II.

JURISDICTION
7.

This Court has original jurisdiction over this Petition for Review

pursuant to 35 P.S. § 691.601 and 42 Pa.C.S.A. § 761 (providing this Court with
exclusive jurisdiction over all civil actions against the Commonwealth
government) (see Cry, Inc. v. Mill Service, Inc., 536 Pa. 462, 471-73 (1993));
Pennsylvania Rule of Appellate Procedure 1502 (providing for a petition for relief
from a government agency, including for “governmental inaction”); 42 Pa.C.S.A.
§§ 7531-7538 (authorizing declaratory relief); and Pennsylvania Rule of Appellate
Procedure 1561, which authorizes this Court to consider and resolve petitions for a
writ of mandamus.
III.

PARTIES
8.

Petitioner Sierra Club is America’s oldest and largest grassroots

environmental organization, with over 777,000 members, including nearly 31,000
in Pennsylvania joined together to protect and preserve natural ecosystems,
including water quality. Sierra Club’s mission is to explore, enjoy, and protect the
wild places of the Earth; to practice and promote the responsible use of the Earth's
resources and ecosystems; to educate and enlist humanity to protect and restore the
quality of the natural and human environment; and to use all lawful means to carry
out these objectives. Sierra Club members are greatly concerned about water

5

 quality issues, and the Club has a long history of involvement in water quality
related activities on both the local and national levels.
9.

Petitioner Lower Susquehanna Riverkeeper has been a licensed

member of the Waterkeeper Alliance since 2005. Lower Susquehanna Riverkeeper
Association represents friends, neighbors, outdoorsmen, recreationalists, and
families who want safe drinking water, sustainable use of natural resources, and
the ability to fish and swim in the Susquehanna River and her tributaries. The
Association works in 24 counties in Pennsylvania and 4 counties in Maryland to
improve and preserve the ecological and aesthetic qualities of the waterways and
the communities they serve.
10.

Sierra Club and Lower Susquehanna Riverkeeper Association bring

this action on their own behalf and on behalf of their members and supporters in
Pennsylvania, and bordering states, who regularly visit and enjoy areas adversely
impacted by the eleven coal power plants at issue. These members use the
waterbodies— into which the plants are discharging pollutants and otherwise
harming the environment—and nearby areas for kayaking, fishing, enjoying
wildlife and otherwise appreciating nature. Members also live in areas where these
waterbodies serve as a source of drinking water.

6

 11.

These members are concerned about the plants’ pollution discharges

and their adverse impacts on water quality and the health of the waterbodies, as
well as the adverse impacts on fish, bird and other flora and fauna members enjoy
observing and studying in these area. They are also concerned about the plants’
water intake structures, which EPA has recognized injure and kill millions of
aquatic organisms through impingement and entrainment, and harm additional
aquatic species through the discharge of heated water. These members’ interests in
enjoying the waterbodies and areas in proximity to the eleven coal power plants,
and having access municipal drinking water they are confident is free of harmful
pollutants, are all harmed by DEP’s failure to comply with the Clean Water Act,
the Clean Streams Law, the Pennsylvania Administrative Code, and the
Pennsylvania Constitution, in light of the ongoing pollution and other adverse
impacts from these coal power plants, operating under outdated and expired
permits.
12.

The Department of Environmental Protection of the Commonwealth

of Pennsylvania is an administrative agency of the Commonwealth, having its
principal office and place of business located in the Rachel Carson State Office
Building at 400 Market Street, Harrisburg, Pennsylvania. Pursuant to the Clean
Streams Law and 35 P.S. § 691, et seq., DEP administers the NPDES permit
program, which requires the agency to issue revised NPDES coal power plant
7

 permits every five years, and is responsible for failing to issue the permits at issue
here. Patrick McDonnell is the Secretary of DEP.
IV.

LEGAL FRAMEWORK
A.

The Federal Clean Water Act

13.

Recognizing the serious degradation of the Nation’s rivers and other

waterbodies as a result of pollution from coal power plants and other sources,
Congress enacted the Clean Water Act to “restore and maintain the chemical,
physical and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
14.

To achieve this objective, Congress directed EPA to establish “water

quality standards,” 33 U.S.C. § 1311(b)(1)(C), and to establish technology-based
and other standards that would, over time, “result in reasonable further progress
toward the national goal of eliminating” the discharge of pollutants into the
Nation’s waterbodies. Id. § 1311(b)(2)(A).
15.

The Clean Water Act requires that coal power plants implement the

“best available technology economically achievable,” id., to minimize the adverse
environmental impacts of their activities. It is well-recognized that these
requirements are designed to be “technology-forcing,” requiring the development
of more efficient and effective technologies over time.

8

 16.

Under the Clean Water Act, a coal power plant may not discharge into

a waterbody without obtaining an NPDES permit. Id. §§ 1311(a); 1342. Such a
permit details the permitted discharges and other conditions under which the coal
power plant may operate. Id.
17.

The Clean Water Act further provides that any State may apply to

administer the NPDES permitting program for coal power plants within the State
where certain conditions are met. Id. § 1342(b).
18.

Among those conditions is the requirement that every permit issued

by the State be “for fixed terms not exceeding five years.” Id. § 1342(b)(1)(B)
(emphasis added). As Congress made clear, under this provision “industry will be
required every five years to review its control efforts and to apply the best
technology then available.” S. Rep. 414, 92d Cong., 2d Sess., at 42 (1971); id. at
52 (Congress intends “increasingly higher levels of control, applied over five year
periods”).
B.

The Commonwealth’s Clean Water Act NPDES Program

19.

Pursuant to the federal Clean Water Act, the Commonwealth has

enacted a state NPDES permitting program under the Commonwealth’s Clean
Streams Law, 35 P.S. § 691, et seq. As the General Assembly explained in
enacting that statute, “[c]lean, unpolluted streams are absolutely essential” for
Pennsylvania to “attract new manufacturing industries,” “develop Pennsylvania’s
9

 full share of the tourist industry,” and have “adequate out of door recreational
facilities in the decades ahead.” Id. § 691.4(1) and (2).
20.

To achieve these goals, the Assembly explained that, “[i]t is the

objective of the Clean Streams Law not only to prevent further pollution of the
waters of the Commonwealth, but also to reclaim and restore to a clean, unpolluted
condition every stream in Pennsylvania that is presently polluted,” a goal which the
Assembly “recognized as being directly related to the economic future of the
Commonwealth.” Id. § 691.4(3) and (4).
21.

The EPA approved DEP’s program for administration of the NPDES

program decades ago. See 25 Pa. Code § 92a, et seq. Under those regulations, each
“NPDES permit must have a fixed term not to exceed five years.” Id. § 92a.7(a)
(emphasis added).
22.

When a draft NPDES permit application is complete, DEP must issue

it for public comment and may also hold a public hearing. Id. §§ 92a.82 and 83.
DEP’s regulations further provide that following the comment period, and any
public hearing, “the Department will take action on the permit,” id. § 92a.86
(emphasis added), including action on the reissuance of permits previously issued.
Id. § 92a.87. Similarly, a 1991 Memorandum of Agreement between EPA and the
Commonwealth (“PADEP-EPA MOU”) provides that DEP will “[p]rocess in a

10

 timely manner and propose to issue, reissue, or modify all NPDSES permits
including general permits.” PADEP-EPA MOU at 2.
C.

The Constitution of the Commonwealth of Pennsylvania

23.

The Pennsylvania Constitution provides that the residents of the

Commonwealth “have a right to clean air, pure water, and to the preservation of
the natural, scenic, historic and esthetic values of the environment.” Penn.
Constitution § 27. Recognizing the Commonwealth’s “public natural resources are
the common property of all the people, including generations yet to come,” the
Constitution directs that the executive branch “shall conserve and maintain them
for the benefit of all the people.” Id.
V.

RELEVANT FACTS
A.

Coal-Fired Power Plants and Water Pollution

24.

When an existing NPDES permit expires, whether a new NPDES

permit is issued is a matter of public interest.
25.

When an existing NPDES permit expires, whether a new NPDES

permit is issued can affect the rights of third persons.
26.

Coal-fired power plants are the largest source of toxic water pollution

in the United States, dumping more toxics into our waters than the other top nine
polluting industries combined. Such toxic pollution includes arsenic, boron,
cadmium, chromium, lead, mercury, selenium, and other toxics.
11

 27.

Coal-fired power plants are the one of the largest sources of toxic

water pollution in the state of Pennsylvania.
28.

Toxic water pollution makes its way into water bodies across the state

of Pennsylvania, into fish and other aquatic life, and into human bodies, through
fish and water consumption, swimming, boating, and other activities.
29.

Toxic water pollution—particularly the pollutants arsenic, boron,

cadmium, chromium, lead, mercury, and selenium—can be hazardous to humans
or aquatic life in very small doses (measured in parts per billion) because they do
not degrade over time and bio-accumulate, meaning they increase in concentration
as they are passed up the food chain.
30.

Arsenic causes cancer, including lung cancer, skin tumors, and

internal organ tumors, and is also connected to heart problems, nervous system
disorders, and intense stomach pain. EPA estimates that nearly 140,000 people per
year experience increased cancer risk due to arsenic in fish from coal-fired power
plants.
31.

Mercury is a highly toxic compound that represents an environmental

and human health risk even in small concentrations. Mercury is a bio-accumulating
poison that impairs brain development in children and causes nervous system and
kidney damage in adults. A fraction of a teaspoon of mercury can contaminate a
25-acre lake. Mercury also accumulates in fish, making them unsafe to eat. The
12

 federal Environmental Protection Agency estimates that almost 2,000 children per
year are born with lower IQs because of mercury in fish that their mothers have
eaten.
32.

Selenium, through short-term exposure, can cause hair and fingernail

changes, damage to the peripheral nervous system, and fatigue and irritability in
humans. Long-term exposure can damage the kidney, liver, and nervous and
circulatory systems. Selenium is acutely poisonous to fish and other aquatic life in
even small doses; concentrations below 3-8 micrograms per liter can kill fish, and
lower concentrations can leave fish deformed or sterile. Selenium also bioaccumulates and interferes with fish reproduction, meaning that it can permanently
destroy wildlife populations in lakes and rivers as it works its way through the
ecosystem over a period of years.
33.

In addition to toxic metals, coal-fired power plants generate and

discharge into surface waters chemical nutrients such as nitrogen and phosphorus
that can lead to algal blooms and eutrophication that can choke watersheds and
severely damage riverine and estuarine environments.
B.

Improved Technologies Available to Reduce the Adverse Impacts
of Coal Power Plants

34.

The existing permits for the eleven coal power plants at issue were

issued between approximately 1995 and 2010. Since these issuance dates,
improvements in the best available technology have made it possible for these coal
13

 power plants to significantly ameliorate their adverse environmental impacts, as
required by the federal Clean Water Act, Commonwealth Clean Streams Law and
Administrative Code, and the Pennsylvania Constitution.
35.

These improvements will become applicable to the coal power plants

at issue when DEP issues updated permits, and, until that time, the plants operate
under the conditions of their outdated permits. See 25 Pa. Code §§ 92a.7(b) and
(c).
36.

For example, almost three years ago EPA issued regulations imposing

new, achievable technological improvements for Cooling Water Intake Structures
at coal power plants. 79 Fed. Reg. 48,300 (Aug. 15, 2014). These facilities
withdraw enormous volumes from waterbodies to turn into steam, impinging and
entraining hundreds of billions of aquatic organisms. They also discharge heated
water, with additional adverse impacts on aquatic communities. Id. The new
requirements will ameliorate these impacts at all the coal power plants with these
Structures.
37.

These requirements will not go into effect until new permits are

issued. Id. at 48,358. Until that time, Pennsylvania coal power plants will continue
to operate under the now outdated requirements of their prior, expired permits.
38.

As another example, in 2015 EPA issued guidelines addressing new,

achievable technological improvements to mitigate the environmentally degrading
14

 pollution discharges for coal power plants. 80 Fed. Reg. 67,838 (Nov. 3, 2015).
EPA explained that coal power plants discharge “toxic metals such as mercury,
arsenic, lead, and selenium [that] accumulate in fish or contaminate drinking water,
[and] can cause adverse effects in people who consume the fish or water” –
including “cancer, cardiovascular disease, neurological disorders, kidney and liver
damage, and lowered IQs in children. ” Id. at 67,840. EPA further explained that
current permits “do not adequately control the pollutants (toxic metals and other)
discharged by this industry.” Id. Finding that there are “affordable technologies
that are widely available” to reduce these discharge, EPA required that new and
updated permits incorporate these new requirements. Id.
39.

These new requirements also will go into effect at the eleven

Pennsylvania coal power plants at issue here when new permits are issued. See id.
at 67,882. Until that time the coal power plants will continue to operate under the
now outdated requirements of their prior, expired permits.
C.

The Coal Power Plants at Issue
1.

40.

The Expired Permit for the Brunner Island Steam Electric
Coal Station

In September 2006, DEP issued a NPDES permit for the Brunner

Island Steam Electric Station (“Brunner Plant”) located in East Manchester
Township, York County Pennsylvania. The Brunner Island Plant is a coal-fired

15

 coal power plant with a generation capacity of 1,411 Megawatts. It is owned by
Talen Energy.
41.

The 2006 NPDES permit authorizes the Brunner Plant to discharge

pollutants into the Susquehanna River, Hartman Run and Conewago Creek. The
Susquehanna River is one of the longest rivers in America, providing over half the
freshwater to the Chesapeake Bay and drinking water to millions of people.
42.

The Brunner Plant NPDES Permit expired on September 30, 2011,

more than five years ago.
43.

The Brunner Island Plant discharges pollutants into the waterways

associated with, among other things, coal combustion waste (“coal ash
wastewater”), coal pile runoff, scrubber and other control blowdown, and other
waste streams generated from coal plant operation. These waste streams, which
can include selenium, mercury, and arsenic, degrade the environment and represent
potential human health risks.
44.

Through its use of cooling water, the Plant also both impinges and

entrains fish and other aquatic life in its systems, and discharges thermal pollution
in the form of heated water.
45.

In 2012 DEP issued a new Draft Permit for the Brunner Island Plant,

but that Draft Permit was never finalized; nor was a second Draft Permit for the

16

 Plant that was issued in 2014. Instead, on or about April 23, 2017 DEP issued an
updated Draft Permit for the Brunner Island Plant.
46.

No final revised permit has been issued for the Brunner Island Plant.

The Plant continues to operate under the now outdated requirements of its expired
2006 permit.
2.
47.

The Expired Permit for the Bruce Mansfield Coal Power
Plant

In December, 2006, DEP issued an NPDES permit for the Bruce

Mansfield Coal power plant (“Bruce Mansfield Plant”) located in Beaver,
Pennsylvania. The Bruce Mansfield Plant is a coal-fired coal power plant with a
generation capacity of 2,490 megawatts. It is owned by First Energy.
48.

The 2006 NPDES permit authorizes the Bruce Mansfield Plant to

discharge pollutants into the Ohio River, Hayden Run Creek, Mill Creek, and Little
Blue Run. The Ohio River is the drinking water source for more than three million
people.
49.

The Bruce Mansfield Plant NPDES Permit expired on November 30,

50.

The Bruce Mansfield Plant discharges pollutants into the waterways

2011.

associated with, among other things, coal ash wastewater, coal pile runoff,
scrubber and other control blowdown, and other waste streams generated from coal

17

 plant operation. These waste streams, which can include selenium, mercury, and
arsenic, degrade the environment and represent potential human health risks.
51.

Through its use of cooling water, the Plant also both impinges and

entrains fish and other aquatic life in its systems, and discharges thermal pollution
in the form of heated water.
52.

On information and belief, First Energy submitted a proposed Water

Management Plan to DEP in May, 2016, which proposed to separate the Little
Blue Run disposal area into a separate NPDES permit.
53.

On information and belief, DEP estimates these permits will not be

completed for a minimum of two more years.
54.

No final revised permit has been issued for the Bruce Mansfield Coal

Power Plant. The Plant continues to operate under the now outdated requirements
of its expired 2006 permit.
3.
55.

The Expired Permit for the Cheswick Coal Power Station

In August, 2007, DEP issued an NPDES permit for the Cheswick

Power Station (“Cheswick Plant”) in Springdale, Pennsylvania. The Cheswick
Plant is a coal-fired coal power plant with a generation capacity 637 megawatts. It
is owned by NRG.
56.

The 2007 NPDES permit authorizes the Cheswick Plant to discharge

pollutants into the Alleghany River, Tawney Run, and Little Deer Creek.
18

 57.

The Cheswick Plant discharges pollutants into the waterways

associated with, among other things, coal ash wastewater, coal pile runoff,
scrubber and other control blowdown, and other waste streams generated from coal
plant operation. These waste streams, which can include selenium, mercury, and
arsenic, degrade the environment and represent potential human health risks.
58.

Through its use of cooling water, the Plant also both impinges and

entrains fish and other aquatic life in its system, and discharges heated water.
59.

The Cheswick Plant NPDES Permit expired on August 31, 2012.

60.

On information and belief, in February, 2012 NRG submitted an

application to renew the Permit.
61.

No final revised permit has been issued for the Cheswick Power

Station. The Plant continues to operate under the now outdated requirements of its
expired 2007 permit.
4.
62.

The Expired Permit for the Conemaugh Generating Station

In December, 2001, DEP issued an NPDES permit for the Conemaugh

Generating Station (“Conemaugh Plant”) in West Wheatfield Township, Indiana
County, Pennsylvania. The Conemaugh Plant is a coal-fired coal power plant with
a generation capacity of 1,711 megawatts. It has multiple owners.
63.

The 2001 NPDES permit authorizes the Conemaugh Plant to

discharge pollutants into the Conemaugh River.
19

 64.

The Conemaugh Plant discharges pollutants into the waterways

associated with, among other things, coal ash wastewater, coal pile runoff,
scrubber and other control blowdown, and other waste streams generated from coal
plant operation. These waste streams, which can include selenium, mercury, and
arsenic, degrade the environment and represent potential human health risks.
65.

Through its use of cooling water, the Plant also both impinges and

entrains fish and other aquatic life in its system, and discharges heated water.
66.

The Conemaugh Plant NPDES Permit expired on December 27, 2006,

more than ten years ago.
67.

On information and belief, in June, 2006 the owners submitted a

permit renewal application.
68.

No final revised permit has been issued for the Conemaugh

Generating Station. The Plant continues to operate under the now outdated
requirements of its expired 2001 permit.
5.
69.

The Expired Permit for the Homer City Generating Station

In August, 2007, DEP issued an NPDES permit for the Homer City

Generating Station (“Homer Plant”) in Homer City, Pennsylvania. The Homer
Plant is a coal-fired coal power plant with a generation capacity of 2 gigawatts
(2,000 megawatts). It is owned by GE and Metlife.

20

 70.

The 2007 NPDES permit authorizes the Homer Plant to discharge

pollutants into Two Lick Creek.
71.

The Homer Plant discharges pollutants into the waterways associated

with, among other things, coal ash wastewater, , coal pile runoff, scrubber and
other control blowdown, and other waste streams generated from coal plant
operation. These waste streams, which can include selenium, mercury, and
arsenic, degrade the environment and represent potential human health risks.
72.

Through its use of cooling water, the Plant also both impinges and

entrains fish and other aquatic life in its system, and discharges heated water.
73.

The Homer Plant NPDES Permit expired on July 31, 2012.

74.

On information and belief, in February, 2012 the owners submitted a

permit renewal application.
75.

No final revised permit has been issued for the Homer City

Generating Station. The Plant continues to operate under the now outdated
requirements of its expired 2007 permit.
6.
76.

The Expired Permit for the Keystone Coal Generating
Station

In February, 2008 DEP issued an NPDES permit for the Keystone

Generating Station (“Keystone Plant”) in Plumcreek Township, Pennsylvania. The
Keystone Plant is a coal-fired coal power plant with a generation capacity of 1,711
megawatts). It has multiple owners.
21

 77.

The 2008 NPDES permit authorizes the Keystone Plant to discharge

pollutants into the Alleghany River, Crooked Creek, and Plum Creek.
78.

The Keystone Plant discharges pollutants into the waterways

associated with, among other things, coal ash wastewater, coal pile runoff,
scrubber and other control blowdown, and other waste streams generated from coal
plant operation. These waste streams, which can include selenium, mercury, and
arsenic, degrade the environment and represent potential human health risks.
79.

Through its use of cooling water, the Plant also both impinges and

entrains fish and other aquatic life in its system, and discharges heated water.
80.

The Keystone Plant NPDES Permit expired in March, 2014.

81.

On information and belief, in August, 2012 the owners submitted a

permit renewal application.
82.

No final revised permit has been issued for the Keystone Generating

Station. The Plant continues to operate under the now outdated requirements of its
expired 2008 permit.
7.
83.

The Expired Permit for the Montour Steam Electric Coal
Station

In January, 2008 DEP issued an NPDES permit for the Montour

Steam Electric Coal Station (“Montour Plant”) in Washingtonville, Pennsylvania.
Montour is a coal-fired coal power plant with a generation capacity of 1,540
megawatts. It is owned by Talen Energy.
22

 84.

The 2008 NPDES permit authorizes the Montour Plant to discharge

pollutants into Chillisquaque Creek and the West Branch Susquehanna River.
85.

The Montour Plant discharges pollutants into the waterways in the

form of coal ash wastewater, coal pile runoff, and scrubber and other control
blowdown, and other waste streams generated from coal plant operation. These
waste streams, which can include selenium, mercury, and arsenic, degrade the
environment and represent potential human health risks.
86.

Through its use of cooling water, the Plant also both impinges and

entrains fish and other aquatic life in its system, and discharges heated water.
87.

The Montour Plant NPDES Permit expired in March, 2014.

88.

On information and belief, in July, 2012 Talen Energy submitted a

permit renewal application.
89.

No final revised permit has been issued for the Montour Steam

Electric Coal Station. The Plant continues to operate under the now outdated
requirements of its expired 2008 permit.
8.
90.

The Expired Permit for the Seward Coal Power Plant

In July, 2010 DEP issued an NPDES permit for the Seward Coal

Power Plant (“Seward Plant”) in New Florence, Pennsylvania. The Seward Plant is
a coal-fired coal power plant with a generation capacity of 585 megawatts. It is
owned by Reliant Energy Seward LLC.
23

 91.

The 2010 NPDES permit authorizes the Seward Plant to discharge

pollutants into the Conemaugh River.
92.

The Seward Plant discharges pollutants into the waterways in the form

of coal ash wastewater, coal pile runoff and scrubber and other control blowdown,
and other waste streams generated from coal plant operation. These waste streams,
which can include selenium, mercury, and arsenic, degrade the environment and
represent potential human health risks.
93.

Through its use of cooling water, the Plant also both impinges and

entrains fish and other aquatic life in its system, and discharges heated water.
94.

The Seward Plant NPDES Permit expired in January, 2015.

95.

On information and belief, in January, 2015 the owner submitted a

permit renewal application.
96.

No final revised permit has been issued for the Seward Power Plant.

The Plant continues to operate under the now outdated requirements of its expired
2010 permit.
9.
97.

The Expired Permit for The Cambria Cogeneration Coal
Facility

In the fall of 2007, DEP issued an NPDES permit for the Cambria

Cogeneration Facility (“Cambria Plant”) in Ebensberg, Pennsylvania. The
Cambria Plant is a coal-fired coal power plant with a generation capacity of 88
megawatts. It is owned by Northern Star Generation.
24

 98.

The 2007 NPDES permit authorizes the Cambria Plant to discharge

pollutants into nearby waterbodies.
99.

Cambria discharges pollutants into the waterways associated with,

among other things, coal ash, coal pile runoff, scrubber and other control
blowdown, and other waste streams generated from coal plant operation. These
waste streams, which can include selenium, mercury, and arsenic, degrade the
environment and represent potential human health risks.
100. The Cambria Plant NPDES Permit expired on September 30, 2012.
101. On information and belief, in March, 2012 Northern Star Generation
submitted an application to renew the Permit.
102. No final revised permit has been issued for the Cambria Cogeneration
Facility. The Plant continues to operate under the now outdated requirements of its
expired 2007 permit.
10.

The Expired Permit for the Colver Coal Power Project

103. In September, 1995 DEP issued an NPDES permit for the Colver
Power Project (“Colver Plant”) in Colver, Pennsylvania. The Colver Plant is a
coal-fired coal power plant with a generation capacity of 105 megawatts. It has
multiple owners.
104. The 1995 NPDES permit authorizes the Colver Plant to discharge
pollutants into Elk Creek.
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 105. The Colver Plant discharges pollutants into the waterways associated
with, among other things, coal ash, coal pile runoff, scrubber and other control
blowdown, and other waste streams generated from coal plant operation. These
waste streams, which can include selenium, mercury, and arsenic, degrade the
environment and represent potential human health risks.
106. The Colver Plant’s NPDES Permit expired on September 19, 2000,
more than sixteen years ago.
107. On information and belief, in March, 2000 the owners submitted a
permit renewal application.
108. No final revised permit has been issued for the Colver Power Project.
The Plant continues to operate under the now outdated requirements of its expired
1995 permit.
11.

The Expired Permit For the Ebensburg Power Company
Plant

109. In August, 2006, DEP issued an NPDES permit for the Ebensburg
Coal Power Company (“Ebensburg Plant ”) in Ebensburg, Pennsylvania.
Ebensburg is a coal-fired coal power plant with a generation capacity of 50
megawatts. It has owned by Babcock and Wilcox Enterprises.
110. The 2006 NPDES permit authorizes the Ebensburg Plant to discharge
pollutants into Blacklick Creek.

26

 111. The Ebensburg Plant discharges pollutants into the waterways
associated with, among other things, coal ash, coal pile runoff, scrubber and other
control blowdown, and other waste streams generated from coal plant operation.
These waste streams, which can include selenium, mercury, and arsenic, degrade
the environment and represent potential human health risks.
112. The Ebensburg Plant NPDES Permit expired on July 31, 2011.
113. On information and belief, in February, 2011 the owners submitted a
permit renewal application.
114. No final revised permit has been issued for the Ebensburg Power
Company Plant. The Plant continues to operate under the now outdated
requirements of its expired 2006 permit.
D.

Petitioners’ Effort to Resolve This Matter Without Resort To
Litigation.

115. As directed by 35 P.S. § 691.601(e), on or about March 23, 2017
Petitioners delivered to DEP a sixty-day notice letter outlining their concerns with
regard to the delays in issuing these required permits, and notifying DEP that
unless the agency would agree to a deadline to finalize revised permits for these
plants on an agreed upon timetable, Petitioners intended to seek a Court Order
directing the agency come into compliance.

27

 116. To this notice letter, Petitioners attached an earlier letter they and
others had sent to DEP in February, 2016 raising many of the same concerns with
DEP’s failure to address long-expired NPDES permits for the Pennsylvania coalfired power plant fleet.
117. More than sixty days have passed since DEP received Petitioners’
notice of suit letter as provided by 35 P.S. § 691.601(e). DEP has not responded to
Petitioners’ letter.
VI.

PETITIONERS’ CLAIMS FOR RELIEF
A.

CLAIM ONE -- FAILURE TO ISSUE RENEWED PERMITS
FOR THE ELEVEN COAL POWER PLANTS IN VIOLATION
OF THE PENNSYLVANIA CLEAN STREAMS LAW AND DEP
REGULATIONS.

118. Petitioners incorporate by reference the allegations contained in the
preceding paragraphs as if fully set forth herein.
119. The Pennsylvania DEP’s NPDES permit program, 25 Pa. Code § 92a,
et seq., administers the federal Clean Water Act and the Pennsylvania Clean
Streams Law, 35 P.S. § 691, et seq.
120. Under DEP regulations, NPDES permits expire after five years. Id. §
92a.7(a).
121. Under DEP regulations and the MOU between DEP and EPA, DEP
must “take action” to issue revised and updated NPDES permits in a timely
manner. Id. § 92a.86; PADEP-EPA MOU at 2.
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 122. By failing to issue new permits for the eleven coal power plants at
issue long after the existing permits have expired, Pennsylvania DEP is violating
the Clean Streams Law and Pennsylvania Administrative Code, entitling
Petitioners to relief under 35 P.S. § 691.601 (c) (providing that “any person having
an interest which is or may be adversely affected may commence a civil action on
his own behalf to compel compliance . . . where there is alleged a failure of the
department to perform any act which is not discretionary with the department . . .
.”)
B.

CLAIM TWO -- FAILURE TO ISSUE RENEWED PERMITS
FOR THE ELEVEN COAL POWER PLANTS IN VIOLATION
OF THE CLEAN WATER ACT.

123. Petitioners incorporate by reference the allegations contained in the
preceding paragraphs as if fully set forth herein.
124. The Supremacy Clause of the United States Constitution requires state
agencies to comply with federal statutory commands. U.S. Const. art. VI.
125. The Clean Water Act provides that an NPDES permits may not
exceed five years. 33 U.S.C. § 1342(b)(1)(B).
126. By failing to issue new permits for the eleven coal power plants at
issue long after the existing permits have expired, Pennsylvania DEP is violating
this federal mandate, entitling Petitioners to relief.

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 C.

CLAIM THREE – FAILURE TO ISSUE RENEWED PERMITS
FOR THE ELEVEN COAL POWER PLANTS IN VIOLATION
OF THE PENNSYLVANIA CONSTITUTION.

127. Petitioners incorporate by reference the allegations contained in the
preceding paragraphs as if fully set forth herein.
128. The Pennsylvania Constitution requires DEP to conserve the
Commonwealth’s natural resources, which includes the health of the waterbodies
adversely impacted by the eleven coal power plants at issue, as well as the fish and
other wildlife they contain. Penn. Constitution § 27. The Constitution also
establishes that all Commonwealth residents have a right to “pure water” and the
natural and “esthetic values of the environment.” Id.
129. By failing to issue new permits for the eleven coal power plants at
issue long after the existing permits have expired, Pennsylvania DEP is violating
the Pennsylvania Constitution, entitling Petitioners to relief.
D.

CLAIM FOUR – REQUEST FOR DECLARATORY RELIEF
CONCERNING DEP’S FAILURE TO ISSUE RENEWED
PERMITS FOR THE ELEVEN COAL POWER PLANTS

130. Petitioners incorporate by reference the allegations contained in the
preceding paragraphs as if fully set forth herein.
131. The Declaratory Judgment Act authorizes the Court to “declare rights,
status, and other legal relations,” 42 Pa.C.S.A. § 7531, and provides that “[j]udicial

30

 relief based on a declaratory judgment or decree may be granted whenever
necessary or proper. Id. § 7538.
132. By failing to issue new permits for the eleven coal power plants at
issue long after the existing permits have expired, Pennsylvania DEP is in violation
of law, entitling Petitioners to declaratory relief.
VII. REQUEST FOR RELIEF
133. Wherefore, Petitioners Sierra Club and Lower Susquehanna
Riverkeeper Association respectfully request the Commonwealth Court of
Pennsylvania to grant their Petition for Review, or in the alternative, their request
for a Writ of Mandamus against Pennsylvania DEP and Director Patrick
McDonnell as follows:
1.

DECLARING the Pennsylvania DEP in violation of the Clean Water
Act, the Pennsylvania Clean Streams Law, the Pennsylvania DEP’s
NPDES program, and/or the Pennsylvania Constitution;

2.

DECLARING that the Pennsylvania DEP has failed to take action on
expired NPDES permits for the (1) Brunner Island Steam Electric
Station; (2) Bruce Mansfield Coal power plant; (3) Cheswick Power
Station; (4) Conemaugh Generating Station; (5) Homer City Station;
(6) Keystone Generating Station; (7) Montour Steam Electric Station;
(8) Seward Coal power plant; (9) Cambria Cogeneration Facility; (10)
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 Colver Power Project; and (11) Ebensburg Power Company, and that
the Pennsylvania DEP is required to take action on those expired
NPDES permits;
3.

ORDERING Pennsylvania DEP, or alternatively, issuing a WRIT OF
MANDAMUS DIRECTING Pennsylvania DEP, to take prompt
action on the outstanding NPDES Draft and Final Permits for: (1)
Brunner Island Steam Electric Station; (2) Bruce Mansfield Coal
power plant; (3) Cheswick Power Station; (4) Conemaugh Generating
Station; (5) Homer City Station; (6) Keystone Generating Station; (7)
Montour Steam Electric Station; (8) Seward Coal power plant; (9)
Cambria Cogeneration Facility; (10) Colver Power Project; and (11)
Ebensburg Power Company, by no later than 1 year from the date of
the ORDER.

4.

ORDERING DEP to file, within thirty (30) days of the Court’s order,
a proposed schedule for action on these outstanding Draft and Final
Permit, which the Commonwealth Court will consider, and will allow
Petitioners to respond to, before the Court enters a final schedule;

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 5.

ORDERING DEP to file Status Reports every sixty (60) days
thereafter on the agency’s progress toward completion of the Draft
and Final Permits for these power plants, until all eleven (11) expired
permits have been superseded by renewal permits; and

6.

GRANTING such other and further relief as may be necessary and
appropriate under the circumstances.

Respectfully submitted,

_____________________
George Jugovic Jr.
PA I.D. No. 39586
PennFuture
200 First Avenue, Suite 200
Pittsburgh, PA 15222
412-456-2780
Dated: June 15, 2017

33

 ___________________
Howard M. Crystal
Pro Hac Vice Application Pending
Law Office of Howard Crystal
813 A Street, N.E.
Washington, D.C. 20002
(202) 253-5108
Dated: June 15, 2017

34

 VERIFICATION
I, Zachary Fabish, attorney at Sierra Club, do hereby state that I am
authorized to execute this Verification on its behalf, and that the averments of fact
contained in the foregoing Petition for Review of Agency Inaction or, In The
Alternative, Petition For a Writ of Mandamus, as those facts have been made
known to me, are true and correct to the best of my knowledge, information and
belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. Section
4904 relating to unsworn falsification to authorities.

______________________
Zachary Fabish
Dated: June 15, 2017

35