Judge rules Ohio utility violated Clean Air Act at power plants

By Eric Pianin, Washington Post,
Boston Globe


A federal judge ruled yesterday that FirstEnergy's Ohio Edison Co. violated the law by upgrading seven aging coal-fired power plants without installing antipollution equipment, in a case with major implications for future clean-air enforcement efforts.

It was the first time a federal judge ruled against a utility in one of the dozen cases that were brought against 51 aging and dirty power plants by the Justice Department and Northeastern state attorneys general during the Clinton administration. The ruling set a precedent that is likely to influence the outcome of several other pending clean-air cases involving some of the nation's oldest and dirtiest plants.

The same judge who heard the Ohio Edison case, US District Judge Edmund A. Sargus Jr. of Columbus, is scheduled to rule later this year on a much larger case involving 10 power plants operated by the American Electric Power Service Corp., based in Columbus. The Justice Department is also attempting to conclude settlement negotiations with Cincinnati-based Cinergy and other firms.

In his 100-page ruling, Sargus found that a ''preponderance of evidence'' showed that Ohio Edison had violated the Clean Air Act by making $136.4 million worth of improvements to the Sammis Station Plant that far exceeded ''routine maintenance,'' without adding the necessary scrubbers. The distinction between routine maintenance and more substantial improvements was at the heart of the case: The owners of power plants built before 1970 are required to install antipollution equipment any time they make improvements that extend the life of the facility and increase production and pollution.

The judge also sharply criticized the Environmental Protection Agency for decades of inconsistent and dismal enforcement of the law.

''For 30 years, various adminstrations have wrestled with and, to a great extent, have avoided a fundamental issue addressed in the Clean Air Act, that is, at what point plants built before 1970 must comply with new air pollution standards,'' Sargus wrote. ''By any standard, the enforcement of the Clean Air Act with regard to the [Ohio Edison] plant has been disastrous.''

The Bush administration has proposed substantially easing the clean air enforcement program, known as New Source Review, saying that it creates uncertainty and discourages investment in new energy production, even as the Justice Department has continued to prosecute cases and seek settlements out of court. Late yesterday, the Justice Department issued a measured response to the ruling.

''While we are continuing to study the opinion, it is clearly a major initial victory for the people of the United States, the government, and a tribute to the career Justice Department and EPA professionals who devoted themselves to the successful presentation of this case,'' said Assistant Attorney General Tom Sansonetti.

State attorneys general from the Northeast and environmental groups that have fought to preserve the enforcement initiative said that yesterday's ruling demonstrated that government can effectively crack down on illegal polluters who threaten the public's health by enforcing existing law. State officials from the Northeast have said for years that their residents have been victimized by pollution generated from large Midwestern plants that has traveled on easterly winds.

This story ran on page A5 of the Boston Globe on 8/8/2003.
© Copyright 2003 Globe Newspaper Company.


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