TVA, EPA mediation on air pollution fails

TVA, EPA mediation on air pollution fails

By ANDY SHER
WASHINGTON BUREAU

WASHINGTON — Settlement talks have failed to resolve a landmark air pollution case involving TVA and the Environmental Protection Agency, forcing the issue back before the 11th U.S. Circuit Court of Appeals, officials said.

"The mediation has ended," Tennessee Valley Authority spokesman John Moulton said. "Once again, TVA's been unable to resolve its dispute with EPA."

Justice Department spokeswoman Dana Perino, whose agency represents EPA, said "despite the good faith efforts by the United States, the other parties and the court's media-tion office, we were not able to reach a settlement."

A three-judge panel had referred the case to mediation for 60 days on June 25.

TVA filed a lawsuit against EPA in May 2000, challenging the regulatory agency's enforce-ment of Clean Air Act provisions concerning aging coal-fired power plants.

EPA charged in 1999 that TVA and other utilities violated clean air rules by making major retrofits to coal-fired power plants without installing costly new pollution control equipment.

TVA and other utilities said they weren't required to install the new equipment under so-called New Source Review provisions that permit them to make "routine maintenance" repairs.

"Our position is that that EPA allowed utilities to routinely maintain and replace power plant equipment and these maintenance practices were common throughout the entire utility industry," Mr. Moulton said.

He said TVA's argument is that EPA "reinterpreted" the rules in the 1990s and then contended violations occurred.

Ms. Perino said Justice and EPA officials "continue to believe the position of the United States in this case is fully supported in law and should prevail before the 11th Circuit."

The officials said court rules prohibit them from discussing specific areas of agreement or disagreement that occurred during the mediation process.

In a filing Wednesday, Lowell L. Garrett, the 11th Circuit's chief mediator, said he conducted an all-day, initial mediation in Atlanta on Aug. 7 with several follow-up telephone conferences afterwards.

"Despite the extensive efforts of the parties, they were unable to settle their differences and resolve the appeals," the filing stated.

The Electric Reliability Coordinating Council, a group of utilities backing TVA, said it is looking forward to a "timely resolution" of the case now that it has been referred back to the court.

"The case remains the first real opportunity to address the problems created by the misuse of 1999 enforcement initiative," said Scott Segal, an attorney for the group.

Mr. Moulton said agency attorneys think judges may issue a ruling in as early as two months. Justice officials gave no estimates.

Failure to reach agreement through mediation is "disappointing," said Stephen Smith, executive director of the Southern Alliance for Clean Energy, an environmental group.

Mr. Smith said pollution from TVA and other utilities' coal-fired plants have real impacts.

"The real losers again are children with asthma, public health and the Great Smoky Mountains National Park," Mr. Smith said.