EPA official: TVA skirted the law

By ANNE PAINEStaff Writer

ASHEVILLE, N.C. - The Tennessee Valley Authority skirted environmental regulations when upgrading its coal plants, causing it to illegally emit a million tons of pollutants over the past two decades, according to a former EPA official.

The Environmental Protection Agency cracked down on other utilities that tried the same maneuvers, but in TVA's case, the EPA stopped short of suing because of a longstanding practice of not taking other federal agencies to court, said Bruce C. Buckheit, EPA air enforcement director from 1996 to 2003.

The testimony in the lawsuit by North Carolina against the federal utility appears to be an effort to blunt TVA's contention that it has been in compliance with all environmental laws. "We were stunned," said Buckheit, referring to TVA's emissions. "This is one of the most significant violations I've ever seen."

His testimony had TVA attorney Maria Gillen on her feet repeatedly to protest. "The EPA never did prove those allegations?," she said.

She challenged Buckheit as a "fact" witness, saying he was making $250 an hour. She also said more than once that he is "a lawyer."

"He also has two degrees in physics," said Michael D. Goodstein, an attorney representing the state.

U.S. District Court Judge Lacy Thornburg, after considering the matter, let the testimony proceed.

At issue is New Source Review, governing older power plants that don't have to meet stipulations of the Clean Air Act.

The 1977 EPA statute required owners of older power plants to seek new permits if they wanted to make plant modifications, expansions or other changes that would increase the amount of pollution released.

Best available technology pollution controls are required under the rule, as they are on new plants.

TVA and many other utilities continued to rework older plants but said the changes were minor and didn't fall under this statute.

EPA launched a major investigation in the 1990s, often proving otherwise, Buckheit said.

Internal TVA documents disclosed that reworking of the agency's coal-burning units in several cases increased electricity output and, also, pollution by sometimes large margins, Buckheit said.

"At least some of the emissions that North Carolina has complained about are illegal emissions," Buckheit said.

TVA each year has been "unlawfully" releasing about 300,000 tons of sulfur dioxide and about 130,000 tons of ozone-forming nitrogen oxide, he said. That's on top of legal emissions.

While some utilities were taken to court, the U.S. Department of Justice wouldn't prosecute the agency because of its federal status.

The chemicals in question are lung irritants and also can damage creeks and trees.

North Carolina's lawsuit says that TVA emissions that waft through and over the Great Smoky Mountains National Park are triggering asthma attacks, causing deaths and interfering with recreation and tourism.

It calls for the utility to install pollution controls to reduce sulfur dioxide and nitrogen oxide.

While Tennessee did not participate in the lawsuit, the advantages of the reductions would be even more widespread and beneficial to the state, where most of TVA's power plants are found, according to North Carolina documents filed with the court.

When Gillen asked during cross-examination if Duke Energy operates plants in North Carolina that are in violation of the New Source Review, Buckheit answered that it did.

North Carolina has never taken the utility to court, he acknowledged.

The utility is facing North Carolina's 2013 deadline that sets a cumulative limit on emissions from its plants in the state.

TVA provides power for a part of North Carolina, but of its 11 coal-burning plants, seven are in Tennessee, two are in Kentucky and two are in Alabama.