Luzerne Township company responds to environmental lawsuit
A Luzerne Township business has responded to a federal suit lodged against it by an environmental advocacy group, denying allegations it violated federal and state regulations governing water and air pollution.
In late June, Bridgeville-based Citizens Coal Council (CCC) initiated litigation asking the court to stop Matt Canestrale Construction (MCC) from committing further alleged violations of the federal Resource Conservation and Recovery Act, the Pennsylvania Clean Streams Law, Air Pollution Control Act and Surface Mining Conservation and Reclamation Act.
CCC, whose stated mission is “to inform, empower and work for and with communities affected by the mining, processing and use of coal,” indicated in its complaint that at least 49 of its members live or work within one mile of the site in LaBelle.
The attorney representing MCC, William T. Gorton of Lexington, Ky., responded to the complaint by stating the company’s objection “to the categorization of the LaBelle site as a ‘refuse site'” at the outset.
According to MCC, the property contains coal refuse, two slurry ponds and “beneficial use certified coal combustion by-product.”
Title 25 of the Pennsylvania Code governs environmental protection, and it includes regulations for beneficial use of coal ash.
According to those regulations, several permissible uses of coal ash exist, provided those uses do not cause water pollution.
MCC claimed in its response that its “conduct is actively regulated and supervised by a number of regulatory agencies” and “authorized by a number of permits.”
CCC contended that while coal ash waste trucked into the site is supposed to neutralize the existing acidic coal refuse — which is considered a form of treatment — the coal ash waste does not treat or neutralize the effects of other toxic substances entrained in coal refuse waste. Instead, they claimed, it adds additional pollution.
CCC’s complaint includes data collected from four streams near the site, noting that the pollutants found in those streams are contained in coal ash and mine waste, and arguing there are no other credible sources of the alleged pollutants in the area.
Gorton countered by saying, “Although some coal ash waste may contain heavy metals, the beneficial use certified coal combustion by-product used at the site has been converted to an inert material not susceptible to leaching.”
“Typical dry ‘coal ash’ is not the product being used for reclamation,” Gorton added, “and the product used by MCC has beneficial use approval by the Pennsylvania Department of Environmental Protection and is a coal combustion by-product material stabilized with lime.”
Gorton noted that leaching from coal waste may have been present prior to MCC’s purchase of the site, and he contended the company “is in fact mitigating the environmental impact of the legacy site, including any potential leaching.”
Altogether, Gorton offered over two dozen defenses to the allegations contained in the complaint against MCC. He argued that the CCC’s claims are preempted and voided because MCC’s conduct has been approved and permitted by regulatory agencies. He also suggested there is no causal link between MCC’s actions and any pollutants, nor is there a causal link between any pollutants and alleged harm suffered by the plaintiffs.
Furthermore, Gorton wrote, “The alleged releases or alleged threat of releases of pollutants and any damages resulting therefrom were caused solely by natural forces, a third party, or any combination of the foregoing.”
Additionally, Gorton argued CCC’s claims should be barred because the alleged conditions do not constitute an imminent and substantial endangerment to health and the environment, because the alleged endangerment is in the past rather that continuous, and because the statute of limitations has expired.
“MCC alleges that it has satisfied, fulfilled and performed each and every obligation imposed by law to the full extent of its responsibility,” Gorton wrote.
MCC is asking U.S. Magistrate Judge Lisa Pupo Lenihan to dismiss the suit, and has also asked to reserve the right to make a counterclaim.