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(Reuters) - A federal judge in Pittsburgh on Tuesday kept alive a lawsuit by the Sierra Club accusing power generator GenOn Power Midwest LP of illegally discharging overheated wastewater from a coal-fired power plant into the Allegheny River, even as the western Pennsylvania plant is planned to be retired.
U.S. District Court Judge William Stickman ruled that claims GenOn has violated its pollution permit by allegedly increasing the river's temperatures over limits set to protect aquatic life with water discharges from its Cheswick Generating Station aren't moot because, until the plant's closure, "GenOn may continue to violate its permit."
Houston-based GenOn and its attorneys at Babst, Calland, Clements & Zomnir did not immediately respond to a request for comment.
Sierra Club attorney Zachary Fabish said the group is pleased "that GenOn can't escape liability for compliance by announcing plans to shut down the plant in the future."
The Sierra Club sued in 2019, alleging that the Springdale, Pennsylvania plant had, according to the group's calculations and measurements, discharged about a dozen times in 2018 and 2019 excessively hot water after pumping it from the river to use as a cooling agent.
Sierra Club said the station raised the river's temperature over the permitted limit, which is two degrees Fahrenheit over an hour, in areas going as far as a mile downstream. It alleged violations of the Clean Water Act and Pennsylvania's Clean Streams Law.
Warmer temperatures decrease oxygen levels in rivers, which can kill large fish.
Both sides moved for summary judgment in March.
On Tuesday, Stickman denied GenOn's bid to toss the lawsuit including on grounds that plans to imminently close the 560-megawatt plant mooted the alleged violations because they "cannot reasonably be expected to recur."
The closure, first scheduled for September, has been postponed to April 2022.
The judge said the issue remains live because "GenOn has not actually closed the plant and can conceivably continue to violate the terms of its permit up until that point."
Stickman also denied the Sierra Club's motion to find that GenOn has violated the permit's two-degree condition, saying that there remains an unresolved "dispute over the accuracy of the data underlying the allegations."
The case is The Sierra Club v. NRG Power Midwest LP, U.S. District Court for the Western District of Pennsylvania, No. 2:19-cv-01284.
For The Sierra Club: Benjamin Barczewski of the Georgetown University Law Center and John Becher of Appalachian Mountain Advocates
For Genon Power Midwest: Mark Shepard and Alana Fortna of Babst Calland Clements & Zomnir