Court Revives Pollution Suit Against TEP

Sep 12 - Arizona Daily Star

A federal appeals court is giving an environmental group another chance to prove that a major coal-fired Arizona power plant is operating illegally.

The 9th U.S. Circuit Court of Appeals on Thursday overturned a decision rejecting the Grand Canyon Trust's request that Tucson Electric Power's Springerville generating station be declared in violation of the federal Clean Air Act.

The court said U.S. District Court Judge Earl Carroll did not have a key piece of evidence: a letter from the U.S. Environmental Protection Agency supporting the trust's position.

Judge William Fletcher, writing for the three-judge appellate panel, directed Carroll to reconsider his order "in light of any evidence properly presented by the parties."

Rick Moore, associate director of the Grand Canyon Trust, said Thursday's ruling opens the door to force Tucson Electric to reduce emissions from two existing units in northeast Arizona.

The trust says the two plants, built under rules before Congress enacted the Clean Air Act, are major air polluters in Northern Arizona.

The decision also could affect permits TEP has obtained to build two new units at the site.

The company is disappointed with the ruling, spokesman Joe Salkowski said. But the company remains convinced it will win the case when it goes back before Carroll, Salkowski said.

The fight surrounds 1978 EPA regulations that required power plants to use the most current equipment available to control pollution.

The EPA agreed to exempt power-plant permits that already had been issued. That would include Springerville, which got the go- ahead for the twin power plants a year earlier. But that exception was valid only if construction began by March 19, 1979, and other conditions were met.

The issue came to the attention of the Grand Canyon Trust after TEP sought in 2001 to build two new units. To avoid having to get a new permit, the company said it would retrofit the two older units so pollution from all four would be no greater than the original two.

But the trust said it had evidence TEP did not start construction on time, had discontinued construction for more than 18 months and had not completed the plants in a reasonable time. Those allegations, if true, would render the original 1977 permits invalid.

More to the point, they would force even greater reductions in pollution for the four-unit plant to comply with the Clean Air Act.

When Carroll threw out the case, Fletcher said, he did not know the EPA had sent a letter to the state Department of Environmental Quality in February 2002 concluding TEP had not started construction by the March 19, 1979, cutoff date.

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