Clear as Smoke: LCRA May Face Lawsuit Over Fayette Emissions

If you are a customer of Austin Energy, you get about 30% of your electricity from coal incinerated at the Fayette Power Proj­ect, located 60 miles southeast of Austin. Burning coal emits all sorts of unsavory toxins, hence the nickname "dirty coal" – but Fayette hasn't seemed quite so dirty since AE and the Lower Colorado River Authority spent $400 million on new "scrubbers" intended to remove sulfur dioxide (associated with acid rain and respiratory illness) from the plant's emissions. Those scrubbers went online in 2011, and according to a June 15 press release from the LCRA – the plant's primary owner and operator – they "now remove more than 95% of SO2." This good news was not the actual reason for the press release, however.

Instead, the release served as a preemptive public rebuttal to a letter the LCRA received on June 8 from the Environmental Integrity Project, alleging Clean Air Act violations at the plant and announcing EIP's "intent to sue" on behalf of Texas Campaign for the Environment. EIP typically "follows a notice of intent with a news release," says LCRA General Manager Becky Motal in the press statement. "I want LCRA's customers and the public to know now that we believe these allegations are baseless."

EIP's notification triggers a 60-day period for the parties to attempt resolving the issue without litigation; if they cannot reach an agreement, says EIP attorney Ilan Levin, a lawsuit will follow. If this story sounds familiar, it should. EIP filed a lawsuit against the LCRA in March 2011 alleging essentially the same thing: air quality violations at Fayette. Specifically, EIP, TCE, and Environment Texas claimed that in 20 different "rolling" 12-month periods during a five-year span, Fayette's particulate matter emissions exceeded the cap of 5,155 tons per year, an annual limit established in the LCRA's flexible permit with the Texas Commission on Environmental Quality. EIP expects that case to go to trial in February, says Levin.

In the meantime, he says, EIP has discovered yet more violations. According to the new claims, Fayette has exceeded particulate-matter emissions limits in terms of both pounds-per-hour (capped at 1,441 pounds) and "opacity" (limited to 20%). "Opacity is a measure of how dark the smoke is coming out of the smokestack," says Levin. "The darker or more opaque the smoke is, the more soot is in it." He says the opacity problem apparently stems, in part, from the fact that the LCRA does not typically use its pollution controls – which include the much-celebrated scrubbers as well as equipment known as "electrostatic precipitators" – during plant startups.

Citing the pending litigation, the LCRA would not respond to questions about this issue. Levin acknowledged that there may be legitimate safety reasons for not using certain controls during those times (which follow periodic shutdowns for maintenance or repair). Nonetheless, he said, "there are a number of things [LCRA] could do to address the problem." And the bottom line is that the emissions flowing out of Fayette's smokestacks during these windows of time – which can last several hours or even days – are allegedly hitting opacity levels of 80% or even 90%, way beyond the 20% limit.

"Our case is really about particulate mat­ter," says Levin. "We've always been focused on that issue." Composed of tiny bits of organic chemicals, metals, acids, and even seemingly harmless dust, particulate matter derives its power from its size: the smaller the particle, the more havoc it can inflict on the body when inhaled. "Particulate matter is deadly," says Levin. "Those pollutants have gone unaddressed. [LCRA] just have chosen not to deal with particulate matter."

In its press release, the LCRA insists that Fayette "keeps emissions well below levels allowed by law" and is one of the state's "cleanest coal-burning power plants." Fur­ther­more, says Motal, "the ongoing repetition of similar claims against FPP is expensive and eventually will be passed on to ratepayers." It's unclear what effect such costs would have on customers of AE, which shares ownership of two of Fayette's three units. Though EIP's original lawsuit targeted only the LCRA (as the plant's operator), AE has chosen to join the lawsuit as a defendant. Levin said the new allegations also target the LCRA alone; AE has declined to comment on the matter.

Meanwhile, AE Chief Operating Officer Cheryl Mele reports that exploration of options to "get out of Fayette before 2020" are well under way as part of the utility's incremental resource planning. That vague, oft-repeated phrasing – "get out of" – reflects the uncertainty regarding just how AE would divest its ownership. AE's 2020 generation plan, established in 2010, directs the utility to reduce its dependence on coal, but the means to that end have fueled much speculation. Last fall, Mayor Lee Leffingwell threw his support behind selling AE's share, but in practice, that may be difficult given the LCRA's "right of first refusal" to such a proposal. Furthermore, handing over control of the plant to someone else could defeat the larger purpose of reducing emissions overall (see "AE's Coal Conundrum," Nov. 20, 2009).

The public will have to wait before it gets to explore such finer points. The various "cost scenarios" under consideration are not ready for prime time, says Mele*; however, AE does plan to roll out information for public discussion prior to its late-September appointment to discuss the matter with City Council.

---

Posted here (without technical attachments) is the Environmental Integrity Letter to the Lower Colorado River Authority, notifying of "intent to sue" for Clean Air Violations at the Fayette Power Plant.

*Corrected: this indirect quotation was originally misattributed to the LCRA's Becky Motal.