Fayette, Don't Spray It

Lawsuit targets LCRA coal plant

LCRA General Manager Tom Mason
LCRA General Manager Tom Mason

Three environmental groups announced last week their "intent to sue" the Lower Colorado River Authority over alleged violations of the Clean Air Act at the coal-powered Fayette Power Project in La Grange. The LCRA's July 16 receipt of the notification letter kicked off a 60-day period after which the groups – the Environmental Integrity Proj­ect, Texas Campaign for the Environ­ment, and Environment Texas – can officially file suit in federal court. But EIP senior attorney Ilan Levin says it might not have to come to that. Instead, he hopes that LCRA will agree to implement pollution prevention measures to protect Texans – including those in Austin, situated just 60 miles northwest of the plant – from the illnesses linked with exposure to particulate matter from burning coal. "We can't afford not to clean up pollution from this plant," he says. "The health costs far outweigh the costs of cleaning up."

Among other violations, the environmental groups allege that LCRA has underreported its particulate matter emissions to the Texas Commission on Environmental Quality and has increased the plant's coal-burning capacity "without making required pollution control upgrades." Altogether, LCRA has committed "thousands of ongoing violations," according to a press release from the environmental groups. LCRA has declined to comment on the matter outside of a statement in which General Manager Tom Mason disputes the allegations, saying the claims "are based on faulty methodology and flawed conclusions." Levin disagrees: "We used the exact same methodology that LCRA used in their sworn and signed application for their flex permit. So if they've got a problem with the methodology we used, then they need to go back and read their application for their flex permit."

The Texas flexible permitting system has itself been a source of controversy, with the Environmental Protection Agency announcing its official disapproval of the program on June 30 (see "EPA Flexes Federal Muscle on Texas Air," July 9). Fayette's flex permit is among the violations detailed in the notification letter to LCRA: "Put simply, the federal Clean Air Act and the Texas SIP [State Implementation Plan] require FPP to be authorized under a valid PSD [prevention of significant deterioration] air permit, and your Flex Permit is not it," reads the letter.

Though Austin Energy jointly owns two of the coal-fired boilers at Fayette – a three-boiler, 1,641-megawatt plant that can power 1.5 million homes – Levin says the suit will not target AE: "LCRA operates the Fayette plant and calls the shots at the Fayette plant," he says, "so that's why they are named in the notice letter." It is unclear what the financial repercussions might be for AE if Fayette ultimately requires further investment in pollution prevention technologies. Already, AE has contributed $220 million toward efforts to install "SO2 scrubbers" expected to significantly curb the plant's sulfur dioxide emissions when they go online at the end of the year.

According to the notification letter, every violation under the Clean Air Act since Jan. 12, 2009, could cost the LCRA $37,500 per day (for violations before that date, the penalty is $32,500). "We're nowhere near the point of knowing what the ultimate penalty liability would be," says Levin. "Obviously that would be up to a judge." But "the plant could be on the hook for potentially hundreds of millions of dollars in fines," he says, "and we would much rather see ... LCRA put some of that money into cleaning up pollution instead of cutting a check to the U.S. Treasury."

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Clear as Smoke: LCRA May Face Lawsuit Over Fayette Emissions
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Fayette Power Project, Lower Colorado River Authority, Environmental Integrity Project, Texas Campaign for the Environment, Environment Texas, Ilan Levin, Texas Commission on Environmental Quality, Austin Energy

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