July 15, 2004 

By Glynn Wilson / States News Service

Air-polluting coal-burning power plants in Indiana and across the nation may be in for a new round of lawsuits if the Environmental Protection Agency gets its way in the political climate of an election year.

The list of power plants the EPA has identified for potentially not meeting Clean Air Act requirements to reduce emissions includes Schahfer Generating Station in Wheatfield owned by Northern Indiana Public Service Co. The Associated Press obtained the list and released it Thursday.

The act's so-called new source review rule requires utilities to install additional pollution controls when making expansions or improvements that result in more emissions. Utilities have argued the rule has been abused by regulators targeting routine, needed maintenance.

No decision on whether to file the lawsuits has been made but at least 14 of the cases have been turned over to the Justice Department for possible action, said an EPA official, speaking on condition of anonymity because the cases are pending. Schahfer Generating Station is not on that list.

A NIPSCO spokeswoman said the company has not received any notification from EPA or the Justice Department alleging new violations under the new source review requirements of the Clean Air Act.

"NIPSCO has been continuously making investments in pollution control for its generating facilities during the past 30 years," Julie Van De Water said.

She said since passage of the Clean Air Act in the 1970s, the utility has focused on cleaning up primary pollutants, including sulfur and nitrous oxides. NIPSCO spent $250 million in the 1990s to meet sulfur oxide requirements and will invest another $240 million in capital improvements by 2005 to reduce nitrous oxide emissions, she said.

As a result, she said, between 1990 and 2002, the annual sulfur oxide emissions were reduced by 70 percent and nitrous oxide emissions by 50 percent.

The company has cooperated with the EPA and provided information under the new source review process, she said, "So the fact that NIPSCO is part of the review process is not surprising."

EPA spokeswoman Cynthia Bergman would not confirm or deny the AP report, and she said the agency does not discuss these cases in advance.

"We will not discuss ongoing enforcement investigations," she said.

But in a statement, she added, "It's important to remember that even when new source review is fixed, we will still need to meet the new, tougher standards on ozone and fine particles. The most important thing we can do to improve air quality in this country is to reduce pollution from power plants."

While environmentalists criticize the EPA for not adequately enforcing the regulations on the books, which they argue would significantly reduce smokestack emissions, the Electric Reliability Coordinating Council, a group that lobbies for the power industry, said a decision to pursue these new cases "creates more uncertainty" and will further prompt utilities to put off needed maintenance and efficiency improvements, for fear of lawsuits. Environmental activists dispute the need for changes to the rules and say the administration should enforce the rules on the books.

"We hope that the Bush administration brings violators to justice and improves its abysmally bad record on the Clean Air Act's new source review program," said Zachary Corrigan, staff attorney for the Indiana Public Interest Research Group. "The administration's failure to do so will come at the expense of the 24,000 people across the country that suffer premature death due to power plant pollution each year."

While the Bush administration has pushed for reforms that allow some individual power plants off the regulatory hook, Sens. John Kerry of Massachusetts and John Edwards of North Carolina say they would support the EPA and continue to fight for tougher air pollution rules, if they are elected in November.

Even though the White House is openly critical of the clean air regulations behind the enforcement cases, EPA Administrator Mike Leavitt said he favors vigorously prosecuting violators of the rules, including cases filed by the Clinton administration and any new cases with merit.