New York state tries new strategy in anti-smog effort; Attorney general to sue 17 power plants to halt pollution.


NEW YORK -- New York state is opening a new legal front in its fight against pollution drifting from coal-burning power plants in upwind states with an announcement that it intends to sue 17 power plants to force them to clean up.

This action would be the first by a state directly against individual companies owning power plants that send pollution in the air across state lines, according to federal environmental officials and other experts. The Northeastern states and the federal government have long battled to force these older plants, mainly in the Midwest and the Virginias, to reduce their emissions, but those efforts have faced a series of recent setbacks.

In letters sent recently to the companies that own the plants, Attorney General Eliot Spitzer of New York state gave notice that he intends to sue them for failing to upgrade equipment that cleans smokestack emissions when they made other big investments in the plants. Such upgrades are required by the federal Clean Air Act.

Exemptions for older plants

Under the law, older plants were granted exemptions to the stricter pollution standards required for newer ones, on the theory that they would shut down in a few years anyway. But the Clean Air Act always contained provisions requiring power companies to seek a permit and install better pollution controls if they substantially upgraded these aging plants.

In an interview, Spitzer said he could prove that significant improvements had been made to equipment at the plants that increased their lifespan and their output of both electricity and pollution, but no permits were sought and no new pollution controls added. The plants are in West Virginia, Ohio, Indiana, Virginia and Kentucky.

They include some of the biggest single sources of air pollution in the country, with one plant in Ohio emitting more smog-causing nitrogen oxides than all of the dozen or so coal-burning plants in New York state, according to federal emissions records.

Until now, New York and other Northeastern states had focused on direct negotiations with upwind states over cutting smog, on efforts to pass federal acid rain laws, and suits and petitions aimed at forcing the federal Environmental Protection Agency to stop pollution created in one place from adding to problems in another.

But the last round of state-to-state negotiations broke down two weeks ago, no new acid rain laws are likely soon, and a round of maneuvers in federal court by the states with the old coal plants has delayed new EPA action to stanch the pollution flow. In light of those problems, Spitzer decided to pursue the individual suits, an approach his staff had been studying for some time. Those suits would be filed in federal court, but where exactly has not been decided, Spitzer's staff said.

Spitzer said the new move is based on facts about changes at the plants, and thus should avoid some of the legal snags that have delayed other efforts. "The other actions involve esoteric legal issues of jurisdiction and power," he said. "We're enmeshed there, too. But this cuts right to the source."

When told of the impending legal action by New York, officials at the EPA, which is conducting its own investigation of investments and pollution at many coal-fired power plants, did everything but cheer.

EPA supportive

"In general, we are absolutely supportive of any state's effort to secure cleaner air for its citizens," said EPA spokesman David Cohen. "We encourage the use of all legal tools available, and we at EPA are doing everything possible, given constraints from recent court decisions brought by polluters that have attempted to frustrate our work."

But representatives of the coal-power industry said they were confident that they would prevail in court against the New York suits.

Federal environmental officials said that they had used the same provisions of the Clean Air Act several years ago to force changes at large pulp mills that upgraded but did not cut pollution.

The plants are owned by American Electric Power of Columbus, Ohio; Cinergy Corp. of Cincinnati; Ohio Edison Co.; Northern Indiana Public Service Co., Virginia Electric Power Co. and Monongahela Power Co. of Morgantown, W.Va.

Eleven of the 17 plants named in the suit are owned by American Electric Power of Columbus, Ohio, and officials there, when told of Spitzer's plans Tuesday, said the investments made at their old plants were strictly to improve reliability and to keep up with rising demand for electricity.

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