By Dan Klepal
The Cincinnati Enquirer

On a day that radio spots began telling listeners Cinergy Corp. is dragging its feet on finalizing a billion-dollar settlement to clean up its coal-fired power plants, a federal judge in Columbus ruled against FirstEnergy Corp.in a similar case.

The decision by the judge could have enormous impact on Cinergy's negotiations with the U.S. Department of Justice, federal Environmental Protection Agency and two environmental groups.

U.S. District Judge Edmund Sargus ruled Thursday that Akron-based FirstEnergy violated the Clean Air Act by not installing new pollution control measures when work was done to expand its capabilities between 1984 and 1998 at a plant near Steubenville.

FirstEnergy, like Cinergy, argues that the work was routine maintenance and not an expansion.

Sargus wrote that 33 years after passage of the Clean Air Act, "the plant to this day emits on an annual basis 145,000 tons of sulphur dioxide, a pollutant injurious to public health . ...Thirty-three years later, the air is still not clean, tens of thousands of jobs have been lost, and enforcement by the EPA has been highly inconsistent."

Kurt Waltzer, clean air program associate with the Ohio Environmental Council, one of the environmental groups involved in the Cinergy negotiations, said both cases involved the utilities investing huge amounts of money on plant upgrades that "go way beyond routine maintenance."

"I think the court's ruling validates our position that Cinergy needs to address these violations of the law," Waltzer said, adding that an important element of the decision is that EPA's lack of enforcement of the law isn't justification for breaking it.

Cinergy CEO Jim Rogers said the EPA's complaints against the two utilities aren't as similar as they appear.

"These cases are highly fact-orientated, so (the FirstEnergy ruling) won't necessarily be controlling with us," Rogers said. "In our case, we didn't go beyond boiler-plate capacity."

That's not what the radio spots say. The commercials say pollution from Cinergy's plants cause tens of thousands of premature deaths, chronic bronchitis and asthma attacks every year. They say Cinergy has yet to keep its promises of reducing pollution, even though it "runs some of the dirtiest power plants in the nation - right here in the Tristate."

The 30-second radio spots are produced by the Washington-based Environmental Integrity Project and the Ohio and Hoosier Environmental Councils.

They are being aired to "set the record straight," said Eric Schaeffer, former head of U.S. Environmental Protection Agency's enforcement division who now leads the Integrity Project.

He says the perception is that Cinergy settled the case in 2000 because that's when they reached a tentative agreement with the federal government that was widely publicized and hailed by many environmental groups. Since then, the parties have been negotiating.

"Cinergy has a reputation as a progressive company, so it's just curious that they (negotiations) have stalled," Schaeffer said.

Rogerssaid the negotiations have dragged out because of a change in the White House, the Sept. 11 terrorist attacks and the re-evaluation of the lawsuits. Now the biggest sticking point is the government asking for $400 million in additional pollution controls that weren't part of the original deal. Meanwhile, Rogers said, Cinergy has spent $900 million in emissions control equipment and another $200 million to convert a plant in Indiana from coal to gas.

"We have acted and taken steps in the spirit of the agreement, even though the government has not," Rogers said. "They're not looking at the cost impact to our customers. We want to add emission control equipment, but it must be done in a way to minimize impact to people on fixed incomes."

Waltzersaid the government is asking for more because many of the deadlines in the original agreement can no longer be met after more than 21/2 years of negotiations.

"Keeping the promise means staying true to the original intent of the agreement and bringing at least some meaningful relief from air pollution to Cincinnati and the Ohio River Valley," he said. "There has been no progress (on many of the points of the agreement) and that means additional years of pollution."

E-mail dklepal@enquirer.com