Sierra Club trial against Texas power plant postponed until February

By Michelle Massey, East Texas Bureau | Oct 25, 2007

Welsh Power Plant near Plano

TEXARKANA – A federal judge in Texas has agreed to postpone what could be a lengthy trial by environmental groups against an East Texas power plant.

U.S. District Judge David Folsom of the Eastern District of Texas granted a joint motion to continue the trial date in a case against American Electric Power Company and Southwestern Electric Power Company, moving it from Oct. 29 to Feb. 11, 2008.

Public Citizen and the Sierra Club filed the original suit on March 10, 2005, in the Texarkana Division of the Eastern District of Texas, seeking injunctive relief and civil penalties against the Welsh Power Plant's alleged violations of the federal Clean Air Act.

"The Clean Air Act is designed to protect and enhance the quality of the nation's air, so as to promote the public health and welfare and the protective capacity of its population," declares court records.
The plaintiffs say they notified the Environmental Protection Agency, the Texas governor, Texas Commission on Environmental Quality and the defendants on July 13, 2004, and again on May 9, 2005, of the alleged violations and their intent to sue. According to the plaintiffs, the EPA and the TCEQ have failed to address the claims.

The Second Amended Complaint argues AEP and SWEPCO's Welsh Power Plant near Plano is violating the Clean Air Act. Plaintiffs believe the area's "aesthetic, recreational, environmental, spiritual, economic and health-related interests "are being compromised due to the defendants alleged "illegal and excessive emission of pollutants from the Welsh plant into the eastern Texas air."

Specifically, plaintiffs argue the electric companies are violating the Prevention of Significant Deterioration by exceeding the maximum heat input rate and emission rate and failed to report the violations.
The plaintiffs assert defendants failed to obtain proper permits before modifying the electric generating units or to install proper controls. The Welsh Power Plant's current prevention of significant deterioration permit is effective until 2008 and provides a maximum energy input rate of 5,156 million BTU per hour.

As evidence of their allegations, the plaintiffs' contend a letter written by AEP to the TCEQ for renewal of an operating permit acknowledges the Welsh plant is exceeding the heat inputs limit and states a plan to submit an amendment to increase the allowed heat input. In addition, plaintiffs state that a TCEQ investigation identified excessive heat input on May 25, 2004.

The Sierra Club and the Public Citizen also contend the EPA's compilations of hourly data for heat input rates at regulated power generating facilities show that the defendants regularly operated the plan in excess of 6,000 million BTU per hour. The environmental groups argue that unless restrained by a court, these violations will continue.

The suit seeks injunctive relief and civil penalties of up to $27,500 per day for each violation that occurred before March 15, 2004 and $32,500 per day for each violation that occurred thereafter. In addition, the suit seeks to permanently enjoin defendants from operating the Welsh plant unless it is in compliance with the standards of the Clean Air Act, installs regulatory equipment and remedies the environmental and public harm caused by the violations.

AEP responded to the lawsuit stating that it is a holding company and has not owned or operated the Welsh Power Plant and therefore, should not be liable under the Clean Air Act.

SWEPCO denies any violations have occurred but states the Texas Commission on Environmental Quality has started administrative proceedings to address the majority of issues that are within in the Plaintiffs' lawsuit. SWEPCO's response all denies that the Welsh plant's prevention of significant deterioration permit establishes a maximum heat input rate.

In a recent hearing before Judge Folsom, the attorneys discussed the possibility of a lengthy two-week trial and the need to reschedule at a time more convenient for all parties. Judge Folsom agreed to grant the request postponing the trial until February.

The nonprofit organizations are represented by David O. Frederick and Seth T. Cohen of the Austin law firm Lowerre and Frederick.

AEP is the largest U.S. electricity generator and owns or operates 80 power plants. Headquartered in Shreveport, La., SWEPCO serves approximately 439,000 customers in eastern Texas, Louisiana, and Arkansas.

Case No.: 5:05-cv-00039

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