The Obama administration sued a major Kansas utility yesterday for air pollution violations, a move that observers are calling a tactical shift from the Bush administration's controversial handling of cases under the Clean Air Act's New Source Review provisions.

The Justice Department filed a complaint against Westar Energy Inc. for allegedly increasing pollution levels without installing the best available control technology, as required under the NSR provisions.

The Westar complaint is one of many that critics say the Bush administration allowed to languish as U.S. EPA attempted to overhaul the NSR program by implementing new rules that would give industry wiggle room before requiring the installation of modern pollution controls.

In 2006, former EPA enforcement chief Grant Nakayama told Congress he would pursue investigations of coal-fired power plants only if they appeared to fall out of step with the administration's series of proposed and final changes to the NSR program (Greenwire, Sept. 29, 2006). But those rules were the subject of intense debate, and some were overturned in federal appeals court.

And a month before leaving office, President George W. Bush's EPA announced it had abandoned its controversial proposal to change emission-testing requirements for coal-fired power plants, which industry said would allow them to upgrade plants without daunting and expensive regulatory obstacles. But environmentalists blasted the proposal, which they argued would allow massive increases in pollution at hundreds of power plants (E&ENews PM, Dec. 12, 2008).

Westar was issued a notice of violation in January 2004 by EPA's regional office in Kansas City, Kan., which claimed the company failed to follow proper preconstruction permitting requirements when it upgraded its Jeffrey Energy Center power plant in St. Marys, Kan., between 1992 and 1999.

In a statement, the company said it has known for six years that the Justice Department might file a lawsuit, but the final action was not taken until yesterday.

The case signals a major change in NSR enforcement under President Barack Obama, said Eric Schaeffer, director of the nonprofit Environmental Integrity Project, who resigned as EPA's Office of Compliance and Enforcement in 2002 in protest of the administration's enforcement.

In a statement announcing the lawsuit, the Justice Department called the complaint "part of a national initiative to stop illegal pollution from coal-fired power plants." The statement added that "coal-fired power plants collectively produce more pollution than any other industry in the United States," and listed detrimental effects to human health and the environment caused by power plant pollution.

"I think you never would have seen that statement in the Bush administration," Schaeffer said.

Utilities expected shift

Utility representatives said the Obama administration's efforts to ramp up NSR enforcement came as no surprise.

"We have long suspected that the new administration would stress environmental enforcement activities at a faster clip than the last administration, and I think we're seeing that," said Scott Segal, director of the Electric Reliability Coordinating Council, which represents utilities.

Schaeffer said yesterday's action signals the new administration could soon take similar action on other pending cases.

"There's a batch of cases that were referred to the Justice Department toward the end of 2003 and those referrals have been there more than five years now," he said

Schaeffer said he expects the administration to take up pending litigation against major utilities Southern Co. and Cinergy Corp., cases filed by the Clinton administration in a wave of NSR lawsuits filed between 1999 and 2001.

"What this means for the future is that for companies that were subject to a referral, an information request and even finished settlement agreements, those companies would do well to evaluate the strengths of their legal positions," Segal said.

Future NSR enforcement actions also could depend largely on who is picked to head EPA's Office of Compliance and Enforcement, Segal added.

"Some of the names have tracked toward activist types that could press even more toward enforcement activities," Segal said.

Click here to read the lawsuit.