Navajos intend to sue over proposed coal-fired power plant
By SUSANMONTOYA BRYAN Associated Press Writer
Article Launched: 01/23/2008 04:11:28 PM MST

ALBUQUERQUE, N.M.—The U.S. Environmental Protection Agency has been notified by one of the nation's largest American Indian tribes that it intends to sue over the agency's lack of action on an air permit application for a proposed coal-fired power plant.

The Navajo Nation's Dine Power Authority and Houston-based Sithe Global Power have partnered to build the $3 billion Desert Rock plant, which would be capable of producing electricity for more than 1 million homes in cities across the Southwest.

Navajo Deputy Attorney General Harrison Tsosie told The Associated Press on Wednesday that the tribe and Sithe applied for an air permit in May 2004 but that the EPA has yet to make a ruling.

"Under federal law, the agency has a year to make a determination and issue a decision," Tsosie said. "It has been the practice that they take longer than a year, which is to be expected, but in the case of this particular application ... it has been almost four years."

Wendy Chavez, a spokeswoman with the EPA's regional office in San Francisco, said the agency has received the tribe's notice of intent to sue.

"There just hasn't been sufficient time to review it and comment on it," she said.

The 1,500-megawatt plant would be built on tribal land near the Navajo community of Burnham, southwest of Farmington. The area already is home to two other coal-fired plants.

Some Navajos and environmentalists argue that Desert Rock would harm the environment and residents' health. But DPA and Sithe have touted it as one of the cleanest coal-burning plants in the country and a much-needed source of jobs and revenue for the Navajo Nation.

Tribal officials have said that a delay in construction means a delay in the economic benefits the tribe expects to see from Desert Rock—including millions of dollars in lease payments, taxes and coal royalties.

Tsosie said the notice of intent to sue was the tribe's only option.

"Hopefully, what this does is give them some incentive to consult with the proponents and to see what the glaring issues are for the hold up," he said.

The air permit would set limits for emissions covered under the federal Clean Air Act, such as sulfur dioxide, nitrogen oxides, carbon monoxide, particulates and lead emissions. Both federal officials and Desert Rock developers have said the draft permit contains some of the strictest controls ever set for a coal-fired power plant in the United States.

The New Mexico Environment Department and others have criticized the draft permit for not including enforceable conditions to address adverse visibility and for not analyzing mercury or carbon dioxide emissions.

Others have complained that a better understanding of existing air quality conditions in the Four Corners region is needed before acceptable standards can be set for Desert Rock.

The draft permit is currently being reviewed by EPA officials in Washington, D.C., said Colleen McKaughan, associate director of the EPA's air division in San Francisco.

"There are complicated issues, a lot of technical issues and there were a lot of comments so it takes longer to review," she said.

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Sithe Global’s law firm, Bracewell & Giuliani, has filed a letter with the EPA saying it intends to sue the agency for not yet issuing it an air quality permit — one of many needed by Sithe to build its proposed Desert Rock coal-fired power plant in northwestern New Mexico. Sithe is threatening to take legal action if the EPA doesn’t issue the permit within 60 days.

Sithe claims there are no adverse impacts associated with its proposed 1,500 megawatt conventional power plant and that the plant will be the cleanest ever built, but that is far from the case. Already, state and federal agencies have filed comment letters highlighting serious flaws with the facility and its effects on everything from air quality and mercury contamination to haze problems at nearby national parks and harm to endangered species. The U.S. Fish and Wildlife Service, the EPA and the New Mexico Department of Environmental Protection have documented how Desert Rock would have significant impact on public health and the environment in the Four Corners.

Please see the attach file submitted by Jeffrey R. Holmstead of Bracwell & Giuliani.