Four States to Sue Owner of W.Va. Coal Plants

May 21, 2004
At a time when the federal government is emphasizing voluntary approaches to implementing the Clean Air Act, some states are rushing in to fill what they see as a breach in federal enforcement.

After the Environmental Protection Agency (EPA) dropped its investigation of five coal-fired power plants owned by Allegheny Energy Inc., New York Attorney General Eliot Spitzer announced May 20 that his state, along with Connecticut, New Jersey and Pennsylvania, will sue the company.

In a letter addressed to the company, the states charge that Allegheny modified the power plants in violation of the Prevention of Significant Deterioration provisions of the Clean Air Act. As a result, the plants have allegedly emitted excess amount of nitrogen oxides and sulfur dioxide.

Prevailing winds carry the pollutants to downwind states, causing smog and acid rain and provoking a variety of respiratory diseases.

"Air pollution from coal-fired power plants is a serious threat to New York's environment and public health," declared Spitzer in a statement. "It is disturbing that the federal government is no longer enforcing the Clean Air Act… New York and its partners will act if the federal government is unwilling to do so."

A "notice of intent to sue letter" is required under the Clean Air Act, as the company alleged to be in violation of the laws must be given 60 days to negotiate a settlement before the lawsuit can be filed

Allegheny Energy Inc. denies that its subsidiaries violated provisions of the Clean Air Act. "We believe that we have been and continue to be in compliance with all existing state and federal environmental laws, including the matters described in the notice," said Paul J. Evanson, chairman, president and CEO, in a prepared statement dated May 20. "We are always mindful of our responsibilities as an environmental steward in the operation of our power plants. Accordingly, we welcome the opportunity to meet with these states to amicably resolve these matters."

The alleged failure of Allegheny to comply with the Clean Air Act after modifying its plants is related to the controversial New Source Review (NSR) regulation of the law. The Bush administration's revised NSR proposal, which is particularly favored by coal-fired power plants, is tied up in litigation. Meanwhile the administration has said it will continue to enforce the existing rule, but environmental groups and some states dispute this.

"We are continuing to enforce the NSR program," said EPA press secretary Cynthia Bergman in a statement. "Because of limited enforcement resources, we will continue to set priorities for the cases that should be pursued first."

Bergman contended that EPA has proposed a regulation that will require power plants to reduce emissions by 70 percent.

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