AIR POLLUTION:

Enviro groups to sue coal plant touted by Texas as permitting success

Updated at 5:53 p.m. EDT to include comment from the Lower Colorado River Authority.

In the wake of U.S. EPA's rejection of a Texas program that permits the state's largest air pollution sources, environmental groups have challenged a coal-fired power plant that Gov. Rick Perry (R) had hailed as a symbol of the value of the state's "flexible" permitting program.

When federal regulators rejected the Texas permitting program on June 30, it raised the pitch of an already unusually noisy fight between state and federal regulators. Texas Attorney General Greg Abbott (R) sued EPA last month over the agency's rejection of one air permitting program, and with the publication of the agency's final decision on the "flexible" permitting program in today's Federal Register, the door is open for another legal challenge from the Lone Star State.

Environmentalists are trying to drive home their point, as well. Three advocacy groups -- the Environmental Integrity Project, the Texas Campaign for the Environment, and Environment Texas -- warned one of Texas' largest power plants today that they intend to file suit over about 10,000 alleged violations of federal air regulations.

The notice was sent to the Lower Colorado River Authority, a publicly owned utility that runs the 1,641-megawatt Fayette Power Project near La Grange, Texas.

"In Texas, air pollution permits are flexible alright -- flexible enough to allow coal-fired power plants like the Fayette plant to avoid tougher federal emission limits, violate the weaker substitute standards offered by the Texas regulators, and short-change Texas taxpayers by failing to pay fees that are supposed to be used to improve air quality," said Ilan Levin, a senior attorney for the Environmental Integrity Project, in a statement today.

LCRA declined to comment on the details of the potential lawsuit, responding to the allegations by saying the utility has a strong reputation for environmental protection. When the Fayette plant's flexible permit was released in 2002, it garnered praise from groups such as the Sierra Club and the Environmental Defense Fund, the utility said in a statement.

Gregg Cooke, administrator of EPA's Region 6 during the George W. Bush administration, praised the plant at the time for "enhancing air quality more quickly than current plans require," the statement said.

"We have been held up as a positive example of how to responsibly run a coal plant," said Tom Mason, the plant's general manager. "When focused on clean air instead of inexact assumptions, reasonable people will see that LCRA has a very good story to tell."

The power plant had been held up as a model for the 16-year-old flexible permitting program, which sets a single facilitywide cap on air pollution rather than limit emissions from each individual source. The Texas Commission on Environmental Quality (TCEQ) honored the facility's air quality efforts last year, making it the most decorated coal-fired plant in the Clean Texas program.

Upon the rejection of the flexible permitting program last month, Gov. Perry said EPA's actions would "undermine environmental gains" at facilities such as the Fayette plant, which is about 60 miles east of Austin.

"Blinded by its activist agenda, the EPA is even threatening a renewable-energy power plant and a manufacturer of energy efficient air conditioners," Perry said in a statement. "Texas will continue to fight this federal takeover of a successful state program, enacted under Gov. Ann Richards (D) and operated in full under President Clinton, which has cleaned Texas' air at the same time it contributed to the nation's strongest economy."

Environmentalists claim that flexible permitting violates the Clean Air Act and allows Texas plants to produce more emissions than are allowed in other states. Because the flexible program has not been approved by EPA, the plant lacks a federally approved air permit as required by the Clean Air Act, Levin said in an interview.

EPA recently unveiled a proposed program that would allow facilities with flexible permits to sidestep the dispute between state and federal regulators. The plants would undergo a third-party audit and agree to make any necessary emissions upgrades, in exchange for receiving a federal permit and a promise from EPA not to seek any civil penalties for prior violations (E&ENews PM, June 30).

"Companies that have relied on flexible permits have been operating in legal limbo at their own risk for many years, and they continue to do so," Levin said today.

The groups also intend to argue that the LCRA made a major modification to the Fayette plant without upgrading controls for emissions of particulate matter, that the plant exceeded pollution limits in its Texas-issued permit thousands of times and that the utility avoided paying $500,000 in air quality fees by underreporting its emissions in annual reports to the Texas Commission on Environmental Quality.

Industry groups have argued that Texas' program has freed them from meeting source-by-source emission limits, Levin said, "but as a matter of federal law, you can't just make those limits disappear."

Click here to read the notice of intent to sue.

Click here to read the Federal Register notice.