New Mexico wants to intervene
in Desert Rock decree

By Kathy Helms
Diné Bureau

WINDOW ROCK — The state of New Mexico has filed a motion to intervene in a proposed consent decree requiring U.S. Environmental Protection Agency to act on an air permit application for the Desert Rock power plant.

Desert Rock Energy Co. LLC and Diné Power Authority filed a complaint March 18 seeking injunctive relief to compel EPA to act on their pending application for a Clean Air Act Prevention of Significant Deterioration permit.

They must obtain the permit in order to construct the proposed 1,500 megawatt coal-fired Desert Rock power plant to be built on the Navajo Reservation near Farmington. Today is the deadline for comment on the consent decree. The issue will be decided by July 31.

In the motion filed Wednesday in U.S. District Court in Houston, New Mexico Attorney General Gary K. King said the July 31 deadline on the proposed consent decree precludes EPA from satisfying crucial requirements in the permitting process.

“New Mexico must intervene now because the existing parties to this action have made it abundantly clear, in a proposed consent decree lodged recently with this court, that they will not comply with statutory requirements in the permitting process.

“It requires EPA to act — contrary to law — without fulfilling its legal obligation under the Endangered Species Act to complete a formal consultation with the Fish and Wildlife Service,” King said, adding that the deadline also means EPA will act without having considered controls on emissions of carbon dioxide or fine particulate matter.

Frank Maisano, spokesperson for Sithe Global Power LLC, developer of the Desert Rock project along with DPA, said the lawsuit is only about the timing of issuing the permit.

“EPA has a Clean Air Act statutory requirement to issue a permit decision 12 months after it receives an accepted permit application. That was May of 2004. They are over three years late in issuing a decision.

“It has nothing to do with any of the items General King lists in his request for intervention. You can’t say that this permit ought to be stopped because we haven’t had a meeting about endangered species yet, because that has nothing to do with the air permit.”

Nathan Plagens, director of Project Development for Sithe, said the company feels that Desert Rock and EPA have fulfilled all their obligations and performed the necessary evaluations to issue the permit.

“We have met with the governor’s office several times. I guess we’re disappointed that the governor’s office still fails to listen to us, hear us out, believe what we tell them, and support the Navajo Nation in their economic development affairs.”

King said New Mexico has made concerted efforts to reduce statewide greenhouse gas emissions, “all of which would be undone by the more than 10 million tons per year of carbon dioxide that Desert Rock will emit.”

The proposed deadline requires EPA to overlook legal and practical considerations by taking final action without having evaluated Desert Rock’s emissions of hazardous air pollutants like mercury and ozone precursors, he said.

“Nearly every single major reservoir in New Mexico is already under a fish consumption advisory because of elevated mercury levels.”

Under the new federal ozone standard, “New Mexico is on the brink of non-attainment for ozone in the very region in which Desert Rock is proposed,” King added.

The motion states that though plaintiffs allege they submitted a completed PSD permit application on May 21, 2004, and that EPA was obligated to take action no later than May 31, 2005, he said they may not have standing to bring the suit.

The original application was filed by Steag Power LLC, and the state has not located any evidence in the administrative record showing that the plaintiffs have been substituted as the permit applicant, he said.