Opponents of Desert Rock gain time

The EPA gives 30-day extension to comment on plant’s air permit

By Ted Holteen, Durango Herald, AUGUST 22, 2008

Opponents of the proposed Desert Rock power plant in northwest New Mexico won a small victory Thursday when the Environmental Protection Agency granted a 30-day extension to allow several groups and the state of New Mexico more time to review and appeal Desert Rock's air-quality permit.

The new deadline to file an appeal is Oct. 2.

Thursday's decision also allowed Desert Rock representatives to participate in the appeals process, and it also denied a request by the opponents to stay a decision by the EPA on carbon-dioxide emissions by Desert Rock.

The EPA issued the Prevention of Significant Deterioration, or PSD, air-quality permit July 31. By law, the EPA allows 30 days from the issuance of the permit for appeals to be filed, but Mike Eisenfeld, the energy coordinator for San Juan Citizens Alliance in New Mexico, said the Desert Rock case is an exception to the regular rules.

"We said look, we've got more than a thousand comments from people all over the Four Corners. I think what this decision says is that more time is warranted for us to put together a response, and this needs to be a legitimate process," Eisenfeld said.

In its decision, the EPA's Environmental Appeals Board wrote, "additional time is needed because of the number and complexity of issues, the volume of relevant material and the unavailability of their expert witnesses, among other things."

The witnesses referred to in the decision are representatives of the petitioners who could not testify within the original 30-day appeal period.

The petitioning groups include Dineh CARE, the Environmental Defense Fund, the Grand Canyon Trust, the Natural Resources Defense Council, San Juan Citizens Alliance, Sierra Club and Wild Earth Guardians as well as the state of New Mexico.

The Environmental Appeals Board also granted attorneys from Sithe Global, the company behind Desert Rock, the opportunity to participate in the appellate process. Rich Alonso, an attorney with the Washington firm of Bracewell & Giuliani, said the decision to allow Sithe Global's participation was a formality, and he also downplayed the 30-day extension.

"We opposed the extension request, but they got 30 days instead of the 45 they requested. It's no big deal," Alonso said.

The denial of the petitioners' stay request, he said, was more significant. The Environmental Appeals Board is currently reviewing an appeal related to a power plant in Utah. In the Utah case, the board is considering whether carbon-dioxide emissions should be considered a pollutant under the federal Clean Air Act.

Opponents of Desert Rock had asked that the Appeals Board delay a similar decision about Desert Rock until the Utah case is decided, but the board denied that request. Now, the opponents must address the carbon-dioxide emissions issue as part of the Desert Rock appeal.

"If they would've granted that stay, it would've delayed our project another three to six months, and we'd have to issue a brand new briefing halfway through the process. It's important - by the board denying, it lets the appeal process proceed in a timely and orderly fashion," Alonso said.