Settlement entered in AEP's sulfur case

CHARLESTON -- On a clear day, it's said a person can see forever.

On a windy day five years ago, the citizens of Mason County may have been able to see a blue cloud of sulfur rolling toward them over the Ohio River.

"It just depended on the weather conditions," AEP Director of Media Relations Pat Hemlepp said. "If it was windy ..."

That cloud, part water and part sulfur trioxide, helped spawn a lawsuit against AEP that ended with a settlement being recently reached in an Ohio federal court.

The settlement, entered Dec. 6, sets certain limits on sulfuric acid emissions from American Electric Power's coal-burning General James M. Gavin Power Plant, located just across the Ohio River from Mason County in Cheshire, Ohio.

AEP, the parent company of Appalachian Power, purchased the lots of land that make up Cheshire for $20 million in 2002 in an attempt to end the complaints of its citizens that the blue smoke clouds produced by the plant earlier this century were ruining their lives. Many of Cheshire's 221 residents took the money and moved away.

It was believed to have been the first time a private company purchased a town.

Those left behind who did not take part in the purchase filed the lawsuit May 12, 2004, in federal court for the Southern District of Ohio in Columbus. They called themselves "Citizens Against Pollution" and were represented by Washington, D.C., attorney James Hecker of Trial Lawyers for Public Justice. Local counsel included Sandra Sommers of Charleston's Kelley and Ferraro and Benjamin Bailey of Charleston's Bailey and Glasser.

The plaintiffs, approximately 82 Cheshire-area residents alleged that sulfuric acid emission from the plant was becoming a nuisance.

"CAP's members reside, own property, breathe the air, drive and use areas near the Gavin Plant," the complaint says. "They use and enjoy the benefits of unobstructed visibility and clean air in these areas.

"The Gavin Plant has emitted sulfuric acid aerosol that degrade these natural resources and cause these members to suffer impaired breathing, burning eyes, sore throats and white-colored sores on their lips and insides of their mouths."

The sulfur was released through two 830-foot stacks, the complaint says, when coal was burned to provide electricity.

The cloud would normally ascend higher, but Hemlepp said during some weather conditions there was a buoyancy factor that caused it to touch down in Cheshire.

The complaint adds that the Agency for Toxic Substances and Disease Registry released a report that stated the levels of sulfuric acid and sulfur dioxide were not life-threatening, but still "high enough to cause bronchoconstruction and increased airway resistance."

The consent decree outlines a plan that will provide testing at the plant and guidelines for reporting any elevated levels. CAP's attorneys must also be kept informed of the test results.

Hemlepp said that shouldn't be a problem because AEP has been operating at safe levels for years, once it determined how to handle the problem of the blue plumes. He also said that the color of the emission from the plant's stacks shouldn't be a person's basis for determining if the gas is a pollutant.

"(The settlement) helps provide the neighbors of the plant more of a comfort level of what's going on at the plant and opens up some channels of communication," Hemlepp said. "It's a bit of a different case, really. They weren't asking for penalties or anything.

"They were asking for us to set tighter reporting criteria than the plant had before. We have to report to various agencies and also report to their lawyers, so they'll have a better understanding as to what is happening."

U.S. District Judge Gregory Frost signed the consent decree, which will expire two years after the date AEP performs its first Ozone Season Initial Test of 2007.

No money will be handed out to the plaintiffs as a result of the settlement, Hemlepp said, though the issue of attorneys fees is still to be determined.

U.S. District Court case number 2:04-CV-0371