State Files Major Lawsuit Against Western Ny Power Plants

New York Attorney General Spitzer and state Department of Environmental Conservation Commissioner Erin M. Crotty today announced a federal lawsuit against Niagara Mohawk and NRG Energy, Inc. for violations of the federal Clean Air Act at the Dunkirk and C. R. Huntley coal-burning power plants, located in Chautauqua and Erie counties.

The two power plants account for more than 20 percent of the nitrogen oxide emissions and 38 percent of the sulfur dioxide emissions - the principal causes of acid rain and smog - released by all power plants in New York.

"The public rightfully expects that the Clean Air Act will be vigorously enforced," said Attorney General Spitzer, "Clean air is a basic right for every New Yorker and essential if we are to reverse the ravages of smog and acid rain. We will make sure that power companies fully comply with the law and compensate the state for the harm caused by acid rain and smog."

DEC Commissioner Crotty said: "New York State is recognized as a national leader in efforts to curb air pollution and provide cleaner air for our citizens to breathe. We will continue to do everything in our power to protect the public and our natural resources by ensuring that power plants adhere to our strict pollution control standards."

Clean air advocacy and environmental groups praised the lawsuit.

"The American Lung Association of New York State wholeheartedly supports Attorney General Spitzer's and the DEC's lawsuit," said Elizabeth C. Miller, CEO of the American Lung Association of NYS. "We believe these legal actions are vital in helping protect New Yorkers from the deadly emissions of power plants which not only take lives and cause debilitating lung diseases, but also cost us all incalculable health care expenses."

John Stouffer, Legislative Director of the Sierra Club- Atlantic Chapter, said: "New York's coal-fired power plants are dirty relics of a bygone era and the Huntley and Dunkirk plants are the worst of this bad lot. The pollution from these plants has clogged the lungs of our children and fouled our lakes for too long. Sierra Club applauds Attorney General Spitzer and DEC Commissioner Crotty for moving to clean up the Huntley and Dunkirk plants. We hope that this is the first of many actions to clean up all of our dirty old power plants."

Katherine Kennedy, senior attorney at the Natural Resources Defense Council, said: "By enforcing the Clean Air Act against these two dirty power plants, Attorney General Spitzer and DEC commissioner Crotty are taking a major step towards cleaner air, better health and an improved environment for all New Yorkers. Existing laws can achieve great air quality gains if government officials have the courage to enforce them."

Neil Woodworth, counsel to the Adirondack Mountain Club and the New York-New Jersey Trail conference, said: "These timely lawsuits send an important message to Washington and the rest of the nation. New York will do whatever is necessary under the federal Clean Air Act to ensure healthy, clean air for its citizens, to restore life to countless lakes in the Adirondacks and to preserve our forests and agricultural soils."

Located directly upwind of the Adirondacks, these power plants are a major source of acid rain and smog in the region. The plants also emit large quantities of fine particulate matter which causes and exacerbates respiratory diseases, such as asthma. Western New York has some of the highest levels of fine particulate matter attributed to power plant pollution in New York State.

The state charged that the companies violated the law by making multi-million dollar improvements at the power plants without upgrading air pollution controls on the smokestacks, as required by law. The lawsuit alleges that there have been more than fifty violations of the Clean Air Act over a seventeen-year span from 1982 to 1999.

The lawsuit utilizes a legal strategy similar to the one Attorney General Spitzer has pursued against other coal burning power plants located in Midwest and Mid-Atlantic states. Spitzer and Crotty pledged to pursue in- state power plants that are violating the law with the same determination as out-of-state plants.

In addition, Governor Pataki in October 1999, announced an important new state initiative to further reduce emissions of nitrogen oxide and sulfur dioxide at electric generating facilities in New York. This initiative will contribute significantly to the state's ongoing battle against acid rain and has set an example for the rest of the nation to follow. Under the Governor's initiative, electric generators would be required to reduce their sulfur dioxide emissions an additional 50 percent below federal Clean Air Act requirements and to implement recently adopted summer-time nitrogen oxide controls on a year round basis. The state expects to release proposed regulations for public review shortly.

Niagara Mohawk undertook major modifications at the power plants, including the complete replacement of a multi-million dollar turbine and boiler upgrades. The major modifications led to significant increases in air pollution and therefore triggered New Source Review under federal and state law.

Niagara Mohawk owned and operated the plants until 1999, when it sold them to NRG Energy, Inc. NRG was recently ranked the third-largest competitive power company in the world. On July 13, 2001, Niagara Mohawk filed suit against NRG, claiming that NRG is responsible for the cost of bringing the plants into compliance with the Clean Air Act. The DEC and the Attorney General maintain that both companies are liable to ensure that the power plants comply with the law.

The state filed litigation today only after repeated attempts to reach a settlement that would have significantly reduced pollution from the power plants proved unsuccessful.

The lawsuit was filed today in federal district court in Buffalo.

The case is being handled by Assistant Attorneys General Jared Snyder and Michael Myers of the Environmental Protection Bureau and DEC attorneys Michelle Crew and Joseph Kowalczyk.

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