U.S. FILES MOTION TO LIFT STAY IN ALABAMA POWER LITIGATION

WASHINGTON, D.C. - The Department of Justice, on behalf of the U.S. Environmental Protection Agency, late Friday took another significant action against a utility plant for Clean Air Act violations, by filing a motion in the U.S. District Court for the Northern District of Alabama to restart litigation against the Alabama Power Company. If this motion is granted, the United States will proceed to prosecute this action, seeking installation of pollution controls and other appropriate remedies for alleged violations of the New Source Review provisions of the Clean Air Act at five coal-fired power plants in Alabama that are owned and operated by Alabama Power.

U.S. v. Alabama Power Co. was previously stayed by the Court at Alabama Power’s request, based on the U.S. Court of Appeals for the Eleventh Circuit consideration of the Tennessee Valley Authority v. Whitman case that involved similar issues concerning the interpretation of the Clean Air Act as it is applied to utility plants. That stay remained in effect until February 13, 2004, the day the United States filed a petition for a writ of certiorari in the TVA case (now named EPA v. TVA), asking for Supreme Court review. Following the Supreme Court filing, the United States moved to terminate the District Court stay, because Alabama Power’s ongoing excessive emissions of air pollutants present a significant threat to public health and the environment.

“This is the most recent action in our ongoing effort to vigorously prosecute power plants in violation of the Clean Air Act. We hope that the District Court will seriously consider our request to allow this important action to proceed, so that we can take all necessary steps to provide for the protection of public health and the environment as required by the Clean Air Act,” said Tom Sansonetti, Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division.

The United States’ complaint in the Alabama Power case alleges that Alabama Power Co. violated the Clean Air Act by undertaking new construction or “major modifications” at several of its coal-fired generating units at five power plants in Alabama in the 1980's and 1990's, without obtaining New Source Review (NSR) or Prevention of Significant Deterioration (PSD) permits or installing pollution controls required by the Clean Air Act. The plants cited in the complaint are: Barry in Mobile County; Gaston in Shelby County; Gorgas in Walker County; Greene County in Greene County; and Miller in Jefferson County.

As a result, it is further alleged that there were significant increases in the emissions of air pollutants, including sulfur dioxide, nitrogen oxides, and particulate matter, from these power plants. Sulfur oxide, NOx, and PM when emitted into the air can have adverse environmental and health impacts, locally and over long distances downwind. Most sulfate aerosols are particles that can be inhaled. In the eastern United States, sulfate aerosols make up about 25 percent of the inhalable particles and according to recent studies, higher levels of sulfate aerosols are associated with increased sickness and mortality from lung disorders, such as asthma and bronchitis. Lowering sulfate emissions from electric utility plants may significantly reduce the incidence and the severity of asthma and bronchitis and associated hospital admissions and emergency room visits.

The United States’ Complaint asks the Court to require Alabama Power to obtain the permits required by the Clean Air Act for its construction and modifications, to install the “best available control technology” to significantly reduce the amount of air pollutants emitted, and to pay a civil penalty for its past violations.

The United States’ motion, filed in the Alabama Power case, asks the District Court to allow this enforcement action to proceed as promptly as possible.

This is the fourth action in the last month concerning utility plant enforcement. The Department earlier announced a settlement with Mystic Station power plant and a new complaint filed against East Kentucky Power Cooperative (EKPC).

###

04-091