U.S. sues utility over Clean Air Act

The Justice Department yesterday sued an eastern Kentucky power cooperative for expanding two of its plants in violation of the Clean Air Act, making good on an administration pledge to get tough with polluters in the utility industry.

The suit marks the first legal action instituted against a utility company since President Bush took office three years ago and comes only a week after the new administrator of the Environmental Protection Agency vowed to crack down on industry polluters.

The administration had been criticized by environmental and public health groups and a dozen attorneys general from northeastern and  midwestern states for trying to weaken a clean-air enforcement regulation known as New Source Review. The review requires older power plants to install costly anti-pollution equipment whenever they upgrade their plants and boost their emissions.

 The EPA approved rules changes last August that would grant utilities wide flexibility in making those improvements without installing scrubbers and without fear of a government lawsuit similar to those brought against the utility industry in the waning months of the Clinton administration.

EPA chief's pledge
 But after a federal appeals court temporarily blocked implementation of the new rule on Christmas Eve, EPA Administrator Mike Leavitt pledged to enforce existing regulations pending a final court ruling. He warned utility industry executives in a closed-door meeting Jan. 9 in Phoenix to begin cleaning up their plants in anticipation of new rules to cut pollutants and to expect legal action.

In remarks to EPA enforcement managers last week, Leavitt stressed that while regulatory compliance was the agency's objective, "enforcement is an essential part of our mission, and we will enforce the law."

 According to a transcript of those remarks obtained by The Washington Post, Leavitt described New Source Review as "an important tool and one component of our comprehensive national strategy to achieve cleaner air."

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He said that the administration would continue to pursue the seven or eight pending cases brought during the Clinton administration while bringing new cases based on available legal manpower and the "desired environmental benefits."

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Kentucky case
In the civil suit filed yesterday, the Justice Department charged that the East Kentucky Power Cooperative in the 1990s modified three of its coal-burning electric generating units at its Spurlock and Dale plants without obtaining the necessary permits or installing the best available control technology, as required by law.

Assistant Attorney General  Thomas L. Sansonetti said the suit was part of a long-standing enforcement initiative aimed at bringing the coal-fired electric power generating industry into full compliance with the Clean Air Act. "Through vigorous prosecution of these cases we have achieved substantial results to date, including landmark court decisions and environmentally protective settlements," he said.

A spokesman for the Kentucky power cooperative declined to comment pending a company's review of the suit. But utility industry officials, who for years have been counting on the administration to relax enforcement and provide greater "clarity and certainty" to the regulations, voiced disappointment with yesterday's action.