Attorneys general from seven states urged President George W. Bush on Friday to immediately require the Tennessee Valley Authority (TVA) to install modern pollution controls at its 11 coal-fired power plants. A federal corporation and regional development agency, the TVA is the nation's largest public power company.
The attorneys general called on the President to act because efforts to "remedy significant, on-going violations of the Clean Air Act's New Source Review requirements" have failed and the subsequent pollution is harming public health and the environment.
"TVA is one of the nation's largest air polluters and its emissions degrade air quality throughout the eastern and mid-western United States," said the attorneys general of Connecticut, Illinois, Massachusetts, New Jersey, New York, Rhode Island and Vermont. All these states are outside of the TVA's service area and do not receive electricity generated by the power plants at issue.
At issue is the Tennessee Valley Authority's compliance with the Clean Air Act's New Source Review program, which is designed to ensure the nation's dirtiest power plants do not expand operations without installing new pollution control technology. In 1999, the U.S. Environmental Protection Agency (EPA) alleged that TVA violated New Source Review when it carried out 14 projects at eight of its coal-fired plants between 1982 and 1996.
The Tennessee Valley Authority contends the projects were routine maintenance, and therefore not subject to New Source Review.
As the Tennessee Valley Authority is a federally owned power company, the EPA believed it did not have the authority to take the federal entity to court and instead issued an administrative compliance order and brought the power company in front of the EPA's Environmental Appeals Board.
The board said "TVA's view of the breadth of the exception would swallow the rule that subjects existing sources to the requirement to install modern pollution controls when physical changes that increase emissions are made to these plants."
Tne TVA refused to comply with the order to install new pollution controls and challenged the agency in federal court. In June 2003 a three-judge panel of the 11th Circuit Court of Appeals ruled that the government should not have used an administrative order to address the TVA's alleged violations of the New Source Review program - the ruling did not address the merits of the allegations.
Last month the Supreme Court declined to hear the U.S. Justice Department's appeal of the 11th Circuit ruling.
"Thus, within the Executive Branch, now only the President can order TVA to reduce its pollution," the attorneys general said in their letter to President Bush. "We urge you now to stop these violations of the law - violations that are degrading air quality, harming the health of Americans and impairing states' efforts to ensure clean air for their residents."
The attorneys general say the EPA and Department of Justice have "spent significant time and resources seeking pollution controls on the TVA plants."
They add it is "imperative that this effort not languish."
The pollution from the TVA's plants is substantial - in 2003 these plants released some 583,000 tons of sulfur dioxide, 235,000 tons of nitrogen oxides, and 4,645 pounds of mercury.
The attorneys general note that EPA models show more than 1,200 Americans die prematurely every year due to TVA's power plant pollution and thousands more suffer from respiratory ailments, including asthma.
In addition, these emissions inhibit efforts by states to meet new smog and particulate matter standards.
The Tennessee Valley Authority had no immediate comment on the letter, but officials note the public utility has spent about $3 billion on air pollution control equipment at its 11 coal-fired plants. "These investments have reduced TVA's sulfur dioxide emissions by two-thirds and lowered nitrogen oxide (NOx) emissions by one-fifth since 1976," the agency says. To further reduce emissions of nitrogen oxides, the TVA says it is installing 18 selective catalytic reduction (SCR) systems on seven of its fossil plants. "By 2005, the SCR systems, with a projected cost of between $800 and $900 million, will reduce NOx emissions during the summer ozone season by 75 percent compared with mid-1990 levels."
The TVA points out that it modified the 16 combustion turbines at Johnsonville Fossil Plant and four turbines at Gallatin Fossil Plant to burn natural gas in addition to fuel oil. This gives the agency the flexibility to purchase the lowest cost fuel and reduce NOx emissions when natural gas is being used.
"Our current plans are to spend $2.6 billion more between 2002 and 2010. This comes out to an average of about a million dollars a day," the TVA said in its March 2003 publication "Inside TVA."
There is little chance the President will heed the call of the attorneys general. Since taking office the Bush administration has finalized several major industry friendly changes to the New Source Review program.
A dozen states along with several environmental and public health organizations have challenged the revisions to New Source Review in federal court. In December 2003, the court agreed to stay the most recent rule changes until it decides the case.
Critics argue the changes roll back existing law, but the administration and industry groups say the revisions will clarify a confusing program for industry and will result in improved efficiency and increased emissions reductions.
The attorneys general also hold the option of filing their own suit against the Tennessee Valley Authority. Late last month attorneys general from Connecticut, New Jersey, New York and Pennsylvania announced they would sue Allegheny Energy for alleged New Source Review violations.
The Bush administration dropped its investigation of Allegheny late last year.
Industry representatives say the attorneys general have got the TVA situation wrong - on two levels.
The Justice Department "still has options at the district court level," said Scott Segal, executive director of the Electric Reliability Coordinating Council.
Second, there is little merit to the allegations that the TVA violated New Source Review requirements of the Clean Air Act, Segal said, adding, "these facilities are governed by air permits fully protective of human health and the environment."
The TVA's power-service area covers 80,000 square miles in the southeastern United States, and it includes almost all of Tennessee and parts of Mississippi, Kentucky, Alabama, Georgia, North Carolina, and Virginia.
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