Desert Rock backers take permit issue to court

By Marley Shebala
Navajo Times

WINDOW ROCK, March 20, 2008

The Diné Power Authority and developers of the Desert Rock Energy Project lost no time in making good on their earlier threat to sue the U.S. Environmental Protection Agency.

Late Tuesday they filed a lawsuit aimed at forcing the EPA to issue an air quality permit allowing them to proceed with construction of the 1,500-megawatt Desert Rock Power Plant.

The filing came one day after the deadline expired on their intent-to-sue notice, filed 60 days ago.

The suit was filed in U.S. District Court in Houston by Sithe Global Power, the Texas-based owner of Desert Rock Energy Co., and the DPA, which is helping to facilitate the project.

On Jan. 17, Bracewell & Giuliani, a Washington, D.C., law firm representing Sithe, notified the EPA that the company planned to sue on grounds that the federal agency had violated the U.S. Clean Air Act by not issuing its decision on the air quality permit application within a year.

The proposed $3 billion coal-fired power plant would be located about 20 miles south of Shiprock and would be the third major power plant in the area, giving rise to a large number of public comments challenging the permit application.

On March 12, Desert Rock vice president Nathan K. Plagens said the lack of an air quality permit has not only blocked construction of the plant, but has also stymied the sale of its power. The plant would generate enough electricity to serve more than a million homes.

Plagens said Sithe has issued several requests for proposals to purchase the electricity. The company is looking to utilities that serve the Southwest's big cities, such as Arizona Public Service, Nevada Power and the Salt River Project, as the likeliest buyers.

No local hookups

Plagens confirmed that none of power generated by Desert Rock would go to Navajo families living near the plant.

Direct transmission is not physically possible because of the enormous difference in voltage between the plant output and residential electric systems.

A separate transmission system, including substations to reduce the voltage, would have to be built to serve local homes, a prohibitively expensive undertaking, he explained.

Plagens noted that the Navajo Tribal Utility Authority is responsible for providing electric service to reservation homes, and said Sithe is open to meeting with NTUA about the possibility of contracting for some of the power generated by Desert Rock.

On Tuesday morning, Margot Perez-Sullivan, EPA spokesperson, said her agency had not been served with a lawsuit and that if one was filed, the EPA would not comment on issues in litigation.

Perez-Sullivan added that the EPA is still responding "in a meaningful manner" to more than a thousand public comments that were received during public hearings on the environmental impact of the proposed plant in 2007.

She explained that all the comments would available to the public when the EPA releases its final decision on the air permit for Desert Rock.

Perez-Sullivan declined to give an estimated date for the agency's decision.

She added that federal regulations give the EPA a year to issue an air permit and also recognizes that the "complexity" of a project may demand additional time.

"Desert Rock is very complex and has taken more time," Perez-Sullivan noted.

President Joe Shirley Jr. on Wednesday called the delay "atrocious" and said, "We've been working on trying to get at the air permit since the early months of 2004 ... Here it is 2008, we've yet to hear from the EPA.

"It's bureaucracy. It's red tape," Shirley said. "Hopefully, now that we have filed suit the U.S. EPA will be expeditious in promulgating a decision."

Richardson a critic

Groups opposing Desert Rock claim that 95 percent of the public comments criticized the project, and the critics include New Mexico Gov. Bill Richardson.

Richardson stated his position on Desert Rock on July 27: "As planned this new facility will adversely impact air quality, exacerbate existing environment problems, and negatively impact scarce surface and ground water resources."

The comments were in response to the draft environmental impact statement on Desert Rock, which concluded that it would have some - but not intolerable - negative impacts.

Shirley, in his statement on the lawsuit, emphasized the project's potential economic benefits, saying it "denotes jobs for our people, good-paying jobs, (and) $53 million for our Nation's coffers to put into direct services out there in Navajoland. This is a long time coming."

Dailan Long, a Burnham Chapter resident who lives near the planned 580-acre plant site, said Wednesday that the issues surrounding Desert Rock "cannot be ignored or overlooked for a quick economic fix."

"The EPA is in a deliberative process on a very critical issue facing us in Burnham," said Long, a community organizer for Diné Citizens Against Ruining the Environment. "From information contained in the draft EIS for Desert Rock, there remain many unanswered questions that Sithe has failed to speak to."

Referring to existing emission sources such as the Four Corners and San Juan power plants, he said, "Desert Rock is not independent of a large industrial complex in northwest New Mexico and to make a reasonable decision on an air quality permit in the context of existing conditions requires further scrutiny and adequate information."

In their lawsuit, Sithe and the DPA cited the sections of the Clean Air Act that state once a permit application is deemed complete - it includes everything required by the act - the agency has one year to issue its decision.

The complaint notes that on May 21, 2004, the EPA issued a letter saying that the Desert Rock application was complete.

"We are pleased to support President Shirley, DPA and the Navajo Nation in their effort to break this permit free of the log jam preventing this important economic development opportunity for the nation," said Frank Maisano, Sithe spokesman, on Tuesday.

"It has been nearly four years since the Navajo Nation and its partners were told it had an approved permit application," he said. "Statute requires a decision in 12 months."

The EPA has 30 days to file its response to the suit.

Navajo president promotes plant
Thursday, March 20th 2008BY STEPHANIE PAIGE OGBURN | JOURNAL STAFF WRITER

Navajo Nation president Joe Shirley wants the Desert Rock power plant to get built so much he traveled to Washington, D.C., last week to meet with Environmental Protection Agency administrator Stephen Johnson.

“We met face to face,” Shirley said. “I apprised him exactly of what we’re dealing with and why we wanted Desert Rock in spite of the naysayers, in spite of the critics. And hopefully he’s heard my story.”

Those naysayers Shirley referred to include citizens of the Navajo Nation, represented by two groups: Diné Citizens Against Ruining our Environment and Dooda Desert Rock. (Dooda means “no” in Navajo.) The proposed coal-fired power plant would be constructed 30 miles southwest of Farmington, N.M., and has raised concerns about potential impacts to air quality in Cortez.

Shirley claimed the majority of people in the Navajo Nation favor the proposed power plant, since it was a key part of his 2006 campaign platform when he was re-elected.

About 66,000 Navajos voted in the 2006 presidential election, which Shirley won with 53.5 percent of the vote.

Members of Diné CARE say Navajos will be displaced by expanded coal mining operations to fuel the proposed plant. They also oppose the emissions of nitrogen oxides, which react to form ozone, sulfur dioxide, which contributes to smog, particulate matter, and mercury, a toxin that can enter the food chain through deposition in water.

Nationally, concerns about carbon dioxide emissions have stalled the development of new coal-fired power plants. To date, there is no technology on the market that can capture carbon dioxide emissions on a scale large enough for installation in a coal-fired power plant.

Navajos against the power plant mention a concern about carbon dioxide emissions as well as other emissions, and point to alternative energy projects as other ways to move the nation toward economic development.

“The Navajo Nation is geo graphically positioned to be a leader in renewable energy technology,” said Dailan Long, a Navajo who works for Diné CARE and opposes the Desert Rock project.

“We have drawn the line in the sand,” Long said, speaking of his group’s opposition to the power plant. “We wanted to make it known to him (Shirley) that we are not stepping down.”

Long’s chapter house, the Burnham Chapter of the Navajo Nation, passed a resolution opposing the proposed Desert Rock power plant.


The nearby Nenahnezad Chapter House, whose jurisdiction covers the land on which Desert Rock would be built, passed a resolution favoring the plant, but the resolution was passed at a meeting of only 50 members, said Lucinda Bennalley, the chapter president.

“(We) are trying to develop jobs for our people,” said Bennalley, who favors the plant.

In a recent meeting, Shirley intimated that Navajos opposed to the power plant are being paid by non-native environmentalists for their opposition.

“These are not even Navajo people (that) come in and say no, no, no, we’re environmentalists. And they’re giving monies to some of our Navajo people to say no,” Shirley said. “My own people in the majority says let’s have it.”

Shirley said he hoped to get an approval on the air permit from the EPA within the next week.

“Hopefully we’ll get some action, some positive action,” he said.

The Navajo Nation Dine Power Authority and Sithe Global Power, partners in the project, are awaiting the air permit from the EPA for the proposed coal-fired power plant.

The plant cannot go forward without getting the air permit and a completed environmental impact statement from the U.S. Bureau of Indian Affairs, said Nathan Plagens, vice president of the Desert Rock Energy Company LLC, a division of Sithe Global Power.

Reach Stephanie Paige Ogburn at stephanieo@cortez journal.com.

"Sithe, DPA pushing flawed plan"

This letter is in regards to the Navajo Nation and Diné Power Authority lawsuit against the U.S. Environmental Protection Agency filed on March 18.

Mr. Steven Begay told the AP that "Sithe is spending money, and we're spending money. The longer we wait, the more money we spend..."

Associated Press further states: "The EPA has received more than 1,000 comments on the air permit, each of which the agency has to respond to, said Margot Perez-Sullivan, a spokeswoman for the EPA in San Francisco.

"Typically it doesn't take that long, but there is really no normal time frame," she said, "it really depends on the complexity of the project, and in this case, it is a complex process."

Sithe and DPA are the real reason the tribe is losing millions of dollars. They continue to try pushing through a project with serious flaws that threaten the public health and the region's air, water and land. EPA and other federal and state agencies have documented all the flaws - lots of them - on everything from mercury pollution to water use to violating clean air standards.

EPA and the other agencies are simply being responsible in pointing out why, and every day that Sithe and DPA waste in pushing forward this horrible idea is more money out of the Navajo Tribe's pockets.

The huge flaws that EPA and other federal and New Mexico agencies have documented with Desert Rock should have been addressed at the beginning of the project. If Sithe and DPA had done their homework properly, they would have recognized what a bad idea it is and the Navajo Nation would not be wasting millions of dollars on a project that has no chance of ever being built.

George Hardeen, President Joe Shirley Jr.'s spokesman, has said that waiting is "costing not just the Navajo Nation but the investors who are helping us with this project."

This scam project is just a drop in the bucket for the owners (Blackstone Group) and Sithe Global's investors. A newspaper article dated March 12, 2008 titled, "Blackstone's Execs Reap Total $38 Mln Bonuses," says, "Blackstone Group also paid out $648 million in case distribution to its senior executives, according to filing with U.S. Securities and Exchange Commission.

"Blackstone's high-profile co-founder and chief executive, Stephen Schwarzman, 61, wasn't paid a bonus, after reaping $684 million through selling a stake in the IPO. But, along with the company's other senior executives, he receives an annual salary of $350,000."

Why do DPA and Sithe Global think they should be given preferential treatment by forcing EPA to make a ruling - just because they have the money to sue EPA? DPA and Sithe Global crying about allegedly slow EPA action on a permit has nothing to complain about.

Cecilia Barber
Sanostee, N.M.