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Administration Sticking With Clinton Pollution Suit

Policy: Ten power companies are targeted. But an upcoming EPA ruling may weaken the case for the government.


WASHINGTON — After an eight-month review, the Bush administration announced Tuesday that it will proceed with lawsuits filed by the Clinton administration against polluting power companies because they are consistent with the Clean Air Act.

"The department takes seriously its obligation to enforce the laws protecting our nation's environment," Atty. Gen. John Ashcroft said in a statement.

However, a senior Justice Department official acknowledged that the 10 power companies are unlikely to settle the lawsuits before the Environmental Protection Agency announces its expected weakening of the rules that are central to the suits.

At issue is whether the utilities broke the law by making modifications to their facilities that significantly increased pollution.

The so-called new-source review provision of the 1970 Clean Air Act requires companies to install modern pollution-control devices when building new plants or modifying existing ones. The administration, however, has been working on changes to the rules that would make them more acceptable to industry.

"Today's announcement only reinforces my puzzlement over why the administration is about to undermine the very same laws they are prosecuting," said John Walke, director of the clean air program for Natural Resources Defense Council, an environmental organization.

Indeed, the Electric Reliability Coordinating Council, which represents several of the targeted utilities, said the government's decision to pursue the cases does not necessarily bode ill for its clients.

Scott Segal, an attorney who is a spokesman for the council, suggested that the EPA could have difficulty prevailing in the cases if the underlying regulations are changed.

The fate of these highly technical regulations and the lawsuits filed to enforce them could have immense implications for air quality, particularly in the Northeast. Changes to the rules will be viewed by environmentalists as a measure of how far the administration is willing to go to satisfy the concerns of industry.

A weakening of the regulations, which dictate what changes businesses must make to their facilities to reduce pollution, is unlikely to render the lawsuits moot, but it could result in settlements that are more favorable for the utilities.

Settlement terms are likely to be based on the requirements of rules in force when the settlement is reached, rather than when the lawsuit was filed, according to a senior Justice Department official, who spoke on the condition that he not be named.

The utilities targeted in the suits include Illinois Power Co. and Dynegy Midwest Generation, Southern Indiana Gas and Electric Co., American Electric Power Service Corp., Ohio Edison Co., Georgia Power and Savannah Electric & Power Co., Alabama Power Co., and Duke Energy Corp.

In May, the administration ordered the Justice Department to review the lawsuits and told the EPA to reassess the new-source review regulation in the context of the administration's energy policy. Utilities and manufacturing companies complain that the program discourages them from making changes that would increase efficiency.

Since then, most of the lawsuits have been in limbo.

A settlement has been reached in the suit against Tampa, Fla.-based TECO Energy, and the government has made agreements in principle with two other companies, Cinergy Corp. and Virginia Electric Power Co., which had not been sued.

If the remaining eight lawsuits were settled along the same terms, nationwide sulfur dioxide emissions would be reduced by at least 25%, according to the EPA. Sulfur dioxide, the cause of so-called acid rain, is one of the chief pollutants produced by coal-fired plants and has been linked to heart and lung ailments that resulted in hospitalizations and early deaths.

A study by the environmental group Clean Air Task Force concluded that if the 51 power plants operated by the sued companies installed modern pollution controls, 4,300 to 7,000 premature deaths from respiratory and cardiac problems would be prevented each year, along with tens of thousands of asthma attacks.

The new-source review program applies to all major polluting facilities, including chemical and manufacturing plants, refineries and pulp mills.

Officials in several Northeastern states, which have joined the federal government in suing the utilities, complain that delays and proposed rule changes by the administration have harmed their citizens, who live downwind from the massive coal-burning plants.

"Every month the settlement sits on the table means another month we have more asthma cases than we should have and more of our lakes and forests are being killed," said Marc Violette, spokesman for New York Atty. Gen. Eliot Spitzer.

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