Judge Rules Ohio Utility Violated Clean Air Act

By J.R. Pegg

WASHINGTON, DC, August 8, 2003 (ENS) - A federal judge ruled Thursday that Ohio Edison violated the Clean Air Act at its Ohio River coal fired power plant by carrying out major modifications under the guise of "routine maintenance." The alterations - which comprised of 11 projects and cost some $136 million - resulted in a significant increase in emissions of air pollutants, the judge ruled, and should have been subject to additional pollution controls under the law.

"The projects were not routine in any sense of the term," wrote Judge Edmund Sargas of the U.S. District Court for the Southern District of Ohio.

Another trial will be held to determine what penalties the company will face for its violations.

Environmentalists hailed the ruling as a landmark victory for the Clean Air Act and believe it could have precedent for several other pending clean air cases.

"It is a huge victory for public health and the environment," said Angela Ledford, director of Clear The Air, an anti-pollution advocacy campaign. "This was the first time a federal court has told power companies that, if you are going to overhaul your old dirty power plants, you have got to make them meet modern pollution standards,"

The case was brought against Ohio Edison - a subsidiary of energy giant FirstEnergy Corp. - in 1999 by the Justice Department on behalf of the U.S. Environmental Protection Agency (EPA) under the Clinton Administration.

The states of New York, Connecticut and New Jersey joined as intervenors on the government's side.

Coal fired power plants are the largest remaining unregulated source of mercury in the United States, but are also a key source of energy. (Photo courtesy New Mexico Solar Energy Association)

The government charged that the projects extended the lives and output of the units, and therefore triggered compliance with the Clean Air Act's New Source Review program.

Established in 1977, New Source Review requires that an air pollution source - including a coal fired power plant - install the best pollution control equipment available when it builds a new facility or when it makes a major modification that increases emissions from an existing facility.

Routine maintenance of a plant is not subject to these provisions.

Sargas acknowledged in his ruling that the analysis to distinguish a modification significant to trigger compliance from routine maintenance, repair and replacement is complex, but wrote that "the distinction is hardly subtle."

At the start of each project, the judge wrote, each one "would have been projected to result in significant net emissions increases of one or more regulated pollutants" and therefore triggered New Source Review.

Ohio Edison argued that the projects were similar to ones taken by other power plants and did not increase emissions or capacity. The company could appeal the ruling.

In his 109 page ruling, Sargas blasted the EPA for its enforcement of the Clean Air Act and noted the environmental and economic impacts of this failure.

"By any standard, the enforcement of the Clean Air Act with regard to the Sammis Plant has been disastrous," the judge wrote.

Sargas noted that some $450 million has been spent at the Sammis Plant since 1970 plant on pollution controls but it still fails to meet new pollution standards.

Each day the plant emits some 145,000 tons of sulphur dioxide, a leading contributor to smog, and the decision by the company and other coal fired utilities to meet some statewide and regional air quality standards by switching to out of state, low sulphur coal has hurt the state's economy.

"Thirty three years later, the air is still not clean, tens of thousands of jobs have been lost and enforcement by the EPA has been highly inconsistent," the judge wrote.

Agency officials - since 1970 - have been remiss in enforcing the law and clarifying its application, according to Sargas.

But the EPA's enforcement failures "do not absolve Ohio Edison from liability under a law that has always been clear," he wrote.

Industry groups are convinced the law is anything but clear and have specific ire for the New Source Review program. Critics say the provisions of the New Source Review program are vague and arbitrary and believe the nation's electricity supply suffers from its regulatory uncertainty.

The Bush administration's proposed Clean Air Act regulatory changes will affect regulation of air pollution from the nation's 17,000 industrial facilities, which emit the majority of nitrogen oxide and sulfur dioxide. (Photo courtesy Environmental Protection Agency)

"Once routine maintenance is clarified, significant barriers to energy efficiency improvements can be removed," Segal said.

The Bush administration has proposed sweeping changes to the definition of routine maintenance in an effort to provide industry with the regulatory certainty they clamor for.

Administration officials at the Justice Department say they are studying the implications of the opinion but note that "it is clearly a major victory for the people of the United States."

Segal - and other industry representatives - has rallied behind the Bush proposal, but environmentalists believe the administration is simply rolling back the law.

The administration's proposal would "effectively legalize" the modifications done by Ohio Edison, says Frank O'Donnell, executive director of the Clean Air Trust

"New Source Review is a crucial tool for protecting air quality and public health - if it is enforced," said O'Donnell.

Similar government cases are still pending against other big power companies, including Southern Company, American Electric Power, Cinergy and Duke Energy.