Polluters off the Hook

Lovely.
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EPA Rule Revisions Roil U.S. Case Against Power Plant


By Eric Pianin
Washington Post Staff Writer
Monday, October 6, 2003; Page A08


The Bush administration's decision last month to weaken rules governing aging coal-fired power plants has complicated government lawyers' pursuit of a case against an Illinois utility accused of violating the Clean Air Act.

The rules in question, part of the act, now say that plants and refineries built before 1970 generally do not have to install modern "scrubbers" during routine maintenance, but must do so if they undertake extensive improvements that extend the facilities' lives and boost their emissions. The new rules, likely to begin to take effect later this year, greatly expand the definition of routine maintenance.

During the past two years, while the Environmental Protection Agency was revising the rules, Attorney General John D. Ashcroft and EPA officials repeatedly pledged to "vigorously" prosecute power plants and refineries that were sued during the Clinton administration under the current rules.

The revisions, announced during the Illinois trial, put the government's lawyers in the awkward position of notifying the court of the change while asserting that the current, tougher standards should still apply.

Toward the conclusion of a four-week federal trial involving a Dynegy Midwest Generation Inc. power plant in Baldwin, Ill., Justice Department lawyers filed a brief Sept. 5 that essentially disavowed their previous definition of "routine maintenance" and abandoned their claim that the Clean Air Act requires the agency to hew to that definition.

At the same time, the government insisted that Dynegy should be held accountable for violating the Clean Air Act under the current standards.

Some legal experts and environmental activists said the department's brief greatly strengthened Dynegy's case that it should not be punished for spending millions of dollars to replace boiler parts in the 1980s and early 1990s that boosted emissions of health-threatening sulfur dioxide, nitrogen oxide and fine particles.

"In light of EPA's change of position as to its interpretation of the Clean Air Act," the Justice Department said in its brief, "the United States does not rely on any prior statements it has made to this Court that a very narrow construction of the 'routine maintenance' exemption is required by the Clean Air Act itself."

The concession stunned environmentalists and emboldened lawyers for Dynegy, who flashed the government's statement on a screen in the courtroom early last week during post-trial arguments before U.S. District Judge Michael J. Reagan in East St. Louis.

"I think it did help our case significantly," said Paul E. Gutermann, a Washington lawyer who argued Dynegy's case. "What the government did in that filing was withdraw the argument they've been making that the Clean Air Act held the [narrow] interpretation they were pursuing."

Illinois Attorney General Lisa Madigan, a Democrat, has petitioned to intervene in the case, which may not be decided until late this year.

"Illinois is seeking to join this case to ensure that public health and the environment in the Metro East area [of southwestern Illinois] are protected and not harmed by the Bush administration's latest concession to polluters," she said.

A Justice Department spokesman said last week that agency lawyers "continue their vigorous enforcement" against the Dynegy plant, noting that the department has argued that the company "is liable for past violations of the Clean Air Act because they made significant modifications to their Baldwin plant without obtaining a permit."

Bruce Buckheit, EPA's director of air enforcement, said that though there are now two different interpretations of the clean air rules, "we are able to say that the [current] narrow interpretation is the one that applies in this case."

Scott Segal, a utility industry advocate, said the Justice Department had no choice but to explain the EPA's new rules and interpretation of the Clean Air Act to the court while making it clear they should have no bearing on the current case.

"The proof is in the rest of the brief, which can only be characterized as aggressive and a zealous prosecution of the case," said Segal, of the Electric Reliability Coordinating Council.

But some lawyers and environmental leaders who have followed cases brought against power plants under the New Source Review regulations say the Justice Department brief has seriously undercut future prosecutions or prospects for settlements.

"This is the first time the administration, as far as we know, appears to be backing off from applying the Clean Air Act standards that were in place at the time the alleged violations occurred," said Howard A. Learner of the Environmental Law & Policy Center in Chicago. "The Justice Department is going back on its previous position."

The Justice Department's approach in the case contrasts sharply with the unqualified position it took in a case it won Aug. 7, when a federal judge in Ohio ruled that FirstEnergy's Ohio Edison Co. violated the law by upgrading seven aging coal-fired power plants without installing anti-pollution equipment. That was the first time the Justice Department prevailed in court in a New Source Review case brought during the Clinton administration.

The New Source Review program generated dozens of state and federal lawsuits against 51 power plant operators during the late 1990s and forced some -- including Dominion Virginia Power -- to agree to install costly pollution controls. The Justice Department and the EPA brought a suit against the Dynegy plant, formerly the Illinois Power Co., in 1999.

Under the rules approved last month, older plants do not have to install pollution controls when they replace items such as a turbine or boiler with a "functional equivalent," provided the cost does not exceed 20 percent of the replacement value of the entire unit.

 

Hardly.

The point of the article was not the cost of scrubbers, but the calculated politics of trying to have it both ways... first by saying you'll prosecute to the full extent of the law so you can claim it on your environmental record and then turning around and changing the rules so you don't have to follow through. The article doesn't say explicitly, but it is implied that Ashcroft knew how this was going to play out. Another bait and switch by this administration.