Tenn. pollution control lawsuit revived

Tenn. pollution control lawsuit revived

	Published : Fri, 02 Mar 2007 23:48 By : Agencies Print this Story

KNOXVILLE, Tenn. (AP) - A divided federal appeals court on Friday revived an environmental lawsuit against the nation's largest public utility for failing to add pollution controls when it overhauled a coal-fired power plant in Tennessee nearly two decades ago.

By a 2-1 vote, a panel of judges on the 6th U.S. Circuit Court of Appeals in Cincinnati said the statute of limitations hadn't run out on the continuing emissions from the Tennessee Valley Authority's Bull Run fossil plant in Clinton, Tenn.

Judge Alice Batchelder said in a dissenting opinion that if there was a Clean Air Act violation it happened only once -- in 1988 when TVA made the upgrades to the plant -- and the statute of limitations would have ended five years later.

But writing for the majority, Judge Karen Nelson Moore said the alleged violation 'manifests itself each day the plant operates.'

Under the court's interpretation, TVA could be liable for damages dating to 1996, reflecting the five-year window on a 2001 lawsuit filed by the National Parks Conservation Association, the Sierra Club and Our Children's Earth Foundation.

The appeals judge ordered the case sent back to U.S. District Judge Tom Varlan in Knoxville to consider the case's merits. Varlan will have to decide if TVA's replacement of 58,000 feet of tubing in Bull Run's boiler -- about a quarter of the total -- was significant enough to trigger Clean Air Act requirements for pollution controls.

'Nobody is wanting to shut off any lights and close plants,' said Don Barger, regional director of the National Parks Conservation Association. 'What we have got to do is prevent the endless delay (in meeting environmental standards) that has happened in the past.'

Utilities operating old coal-fired power plants 'aren't going to be able to slide under the radar anymore,' vowed Ginny Cramer, a Washington spokesman for the Sierra Club. 'They are not going to be able to legally extend the life of their old plants. They can't just patch them up forever.'

TVA spokeswoman Barbara Martocci said that are gardless of the outcome of this case' the federal utility will complete a $300 million state-of-the-art scrubber to reduce haze and acid rain-causing emissions at Bull Run by 2009. Equipment to reduce smog-forming emissions was installed there in 2004.

The 870-megawatt Bull Run plant, one of TVA's closest fossil plants to the pollution-prone Great Smoky Mountains National Park, generates enough electricity to light about 500,000 homes.

The Environmental Protection Agency previously cited TVA, and other utilities, for making such 'major modifications' in their coal-fired power plants that they would be required under the Clean Air Act to install 'best available control technology' to reduce emissions.

The U.S. Supreme Court let the issue die in 2004 when it refused to consider whether government-owned TVA could disregard a demand by EPA, another government entity, to clean up its power plants.

The high court, however, has another case pending, Environmental Defense vs. Duke Energy Corp. of North Carolina, that considers a similar issue based on a citizen petition.

'That could drive a lot of different kinds of discussion around the country toward settlements and cleanup strategies,' Barger said.