Groups File Notice Letter to Sue NRG Energy for Massive Pollution

WASHINGTON - Today Food & Water Watch, Patuxent Riverkeeper and Potomac Riverkeeper – represented by Public Justice and Columbia University School of Law Environmental Law Clinic – announced the filing of a Clean Water Act notice of intent to sue the energy company NRG Energy, Inc. for water pollution violations at three of its coal-fired power plants—violations revealed in documents obtained by Food & Water Watch. The groups allege that the company has been and continues to be in violation of its nitrogen discharge limits at the Chalk Point, Dickerson and Morgantown facilities. In addition, the groups, all headquartered in the Chesapeake Bay watershed, allege that the Dickerson plant is also in violation of its phosphorus discharge limits. The documents also reveal that NRG is engaged in a complex system of credit swapping and offsets among the three plants.

“It’s critical to enforce the Clean Water Act to the letter if we want a clean Bay,” said Michele Merkel at Food & Water Watch. “Here we have three sources of pollution who are unable to meet their discharge limits, so instead of upgrading their technology, they’re attempting to mask their violations by entering into a convoluted scheme of credit transfers and offsets. None of those maneuvers, however, changes the fact that these facilities are exceeding their permit limits.”

Under the Clean Water Act, “point source” facilities like NRG’s power plants operate with permits that limit the maximum amount of pollution each plant can discharge. These limits are designed to minimize harm to local waterways while motivating industries to implement technological upgrades to reduce discharges. Each of NRG’s three power plants are permitted to discharge nitrogen in the hundreds of pounds, but recent discharge monitoring reports Food & Water Watch obtained under a Maryland Public Information Act request show nitrogen discharges in the several thousands of pounds. In the case of Chalk Point, which is permitted to discharge just 329 pounds of nitrogen each year, the reports show discharges of over 14,000 pounds in 2010 and 2011 combined – exceeding the legal limits by almost 2200 percent.

NRG’s attempts to transfer pollution discharge credits among their three power plants in a failed effort to meet permit limits is a foreshadowing of an even more extensive pollution swapping scheme authorized under the Environmental Protection Agency’s recent Chesapeake Bay clean up plan known as the Bay Total Maximum Daily Load (TMDL). The TMDL’s pollution trading provisions would allow polluters like NRG to purchase credits from other polluters, including CAFOs (or Concentrated Animal Feeding Operations) and other farm operations. Two years ago, NRG sought a permit modification from the Maryland Department of the Environment (MDE) to allow them to purchase pollution credits from Maryland farm operations in addition to their intra-plant exchange of pollution credits. MDE has yet to act on NRG’s request, but Food & Water Watch has recently challenged the legality of water pollution trading in Federal Court in Washington, D.C.

“NRG, one of the worst polluters in the Bay area, should never be allowed to cover up its illegal discharges by obtaining credits from agricultural operations, the other biggest offenders in terms of nutrient pollution,” said Jessica Culpepper, the Public Justice attorney representing the plaintiffs on the Notice Letter. “What’s happening at NRG with these three power plants underscores everything wrong with the Bay TMDL plan and makes a mockery of the Clean Water Act.”

Power plants are one of the more active proponents of water pollution trading because of the industry’s chronic unwillingness to control discharges of nutrients like nitrogen and phosphorus. Large sections of the Bay watershed into which the NRG facilities discharge, including segments of the Patuxent and Potomac Rivers, are already impaired by excess amounts of these nutrients. And while uncontrolled agricultural operations remain the largest source of these pollutants in waterways across the country, including the Bay, power plants are also a contributor.

"Pollution trading also has dire consequences for communities of color and other communities that lack political access," stated Patuxent Riverkeeper Fred Tutman. "As industries purchase the right to pollute more, it’s the surrounding communities that will bear the brunt of these increased discharges. And we know, from decades of research, that it’s communities of color who live nearest to facilities like these power plants. Pollution trading is nothing more than a scheme to dump even more pollutants into these communities who already bear the disproportionate burden of our environmentally irresponsible ways."

“These facilities need to stop polluting our rivers,” stated Potomac Riverkeeper Matthew Logan. “The law is fairly simple here – they have permits, and they need to upgrade their facilities to comply with them. The Clean Water Act does not allow industries to buy their way out of compliance with the purchase of credits, or swapping among sources or other illegal offsets.”

Under the Clean Water Act, citizens are required to provide alleged violators with 60 days notice before going into court to seek a remedy to the ongoing problem. The organizations providing notice today plan on pursuing legal action to make sure NRG strictly complies with the limits contained in their permits.

To view a copy of the Notice of Intent to Sue letters, click here: http://fwwat.ch/115yByU.