By Dan Klepal
The Cincinnati Enquirer

A U.S. Environmental Protection Agency decision to not pursue litigation against power plants for violating a federal clean-air law will not change ongoing settlement talks between Cinergy Corp. and groups suing the power giant over similar allegations.

Lawyers with the EPA said Wednesday that investigations would be dropped into 50 utility plants that expanded without upgrading pollution controls as required by the so-called New Source Review rule in the Clean Air Act.

The EPA, which two months ago loosened that rule to allow power plants to perform major renovations without installing new pollution controls, said it will proceed with pending lawsuits.

Kurt Waltzer, clean air program associate with the Ohio Environmental Council, said his group doesn't need government involvement. He said that it has been told that the U.S. Justice Department will move the Cinergy case forward.

The Ohio and Hoosier environmental councils are both parties to the lawsuit, which are in billion-dollar settlement discussions.

"We have every indication from DOJ that they will continue with cases already filed," Waltzer said. "So we expect the Cinergy case to move forward. But if they back off, the Midwestern environmental groups and the state attorney generals are ready to proceed on our own.

"The case is very far along, and we feel comfortable that we can proceed with or without the DOJ."

Cinergy spokesman Steve Brash had no comment when asked if it is unfair that Cinergy remains in a lawsuit about issues the government will now ignore at other power plants.

"We have not seen anything from EPA that indicates what their policy is," Brash said. "At this point, we do not have any information on which we can react."

Not everyone thinks the government will make an effort to try to settle the Cinergy lawsuit.

David Bookbinder, a senior attorney with the Sierra Club in Washington, D.C., said the EPA gave assurances that it would pursue those cases it is now dropping at the time it announced the rule change. It has gone back on that promise, he said. The Sierra Club, along with several states and other environmental groups, is suing the EPA to reverse the rule change.

"The DOJ will either roll over on these cases, or they'll settle them for a penny on the dollar," Bookbinder said. "There is no political will to enforce the law, and on top of that they've severely undercut their own position."

But Ohio Environmental Council attorney Ann Johnston said the Cinergy case is moving along. The sides are exchanging information - a process known as discovery - and sworn statements are scheduled to be taken over the next weeks. Trial is scheduled for June 2005.

"We're going forward, full speed ahead," Johnston said.

E-mail dklepal@enquirer.com