June 1 , 2002
right to an exemption for "old" plants.
The EPA lawsuit entails some overlap with the Section 126 complaints, which target some of the same plants named in the EPA suit, but the cases remain separate. "Granting the 126 petitions is just another backstop for EPA in case their other actions fail, just as the revised [eight-hour] standard failed in court last year," said Pat Hemplepp, spokesman for American Electric Power.
Moreover, the Northeastern states apparently aren't leaving it up to the EPA to fight their battles. Vermont and New Jersey have announced that they will joint the EPA suit, while the attorneys general from new York and Connecticut joined as plaintiffs in a suit filed Nov. 29 against American Electric Power in the U.S. District Court in Columbus, Ohio.
This suit targets 10 coal-burning plants, alleging that AEP increased generating capacity through repowering projects and the like, which requires installation of additional pollution controls.
Said New York attorney general Elliot Spitzer, "The emissions from these plants are a significant factor in the problems of acid rain and smog that are damaging natural gas resources and human health in New York."
American Electric Power counters that it has only undertaken routine maintenance, such as replacement of degraded equipment or failed components, which would not violate the Clean Air Act AEP adds that utilities in the Northeast should accept responsibility for their own actions. "We continue to be amazed that Northeast states insist on blaming their local environmental problems on sources that are...miles away," said Dale Heydlauff, vice president-environmental affairs for American Electric Power.
Meanwhile, Spitzer and his colleague in Connecticut have said they intend to file similar lawsuits against FirstEnergy, Ginergy, Virginia Power and perhaps other utilities.
EPA Authority: A High Court Appeal?
On Dec. 1, the EPA proposed action, known as one-hour ozone attainment demonstrations, for 10 major urban areas, outlining emission reductions necessary for each area to meet the standard for smog.
The 10 affected areas are Atlanta, Baltimore, Houston, New York, Philadelphia, Chicago, Milwaukee, Spring, Mass., Hartford, Conn. and Washington, D.C. Such a plan, of course, does not place the burden solely on power plants, but on other major polluters such as motor vehicles within the identified areas. (see http://www.epa.gov/ttn/oarpg/ramain.html - "Ozone 1-hour Attainment Demonstrations.")
In fact, even the eight-hour standard may not be entirely dead. On Oct. 29 a federal appeals court voted 2-1 to deny rehearing of its May ruling that had struck down the standard as unconstitutional, but five of 11 circuit judges said they would rehear the case en banc, if given the chance. Thus, at the end of December some observers thought that the EPA might consider an appeal. One such observer was Norman Fichthorn, partner in the administrative law group and member of the environmental team in the law firm Hunton & Williams, who added: "It will take at least a few more months for them [the EPA] to sort that out."
In the meantime, the EPA was aiming to reinstate the old one-hour standard in states where it had been revoked in favor