By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
By Michael Roberts
By Melanie Asmar
One store owner who'd let the Warrens leave a petition there soon called to ask that it be removed; plant workers were threatening to boycott his business. A city employee told Charles Warren, "You guys are costing us an awful lot of money." But the 900-plus signatures collected demonstrated that "you guys" consisted of more than the four or five disgruntled citizens whom plant officials claim are the only real local opposition to their project.
Civic leaders in Lamar tend to promote the plant as a source of jobs and industry that the town badly needs. The local economy has been reeling since the 2006 collapse of bus manufacturer Neoplan. But the plant provides only a few dozen jobs, and Angela Warren, Cliff's sister, contends that a gritty coal boiler looming over the retail district isn't the sort of draw that's going to fill vacant storefronts. The town recently opened a new baseball field and hosted a regional tournament, in the hopes of building tourism and the local motel business. But feedback from the visitors wasn't encouraging.
"They had nothing but bad comments about the coal plant," Angela says, "and how Lamar wasn't an attractive city."
Wind power helped to present one kind of image for Lamar, an image that Lamar Light and Power likes to cultivate; Rick Rigel's business card has a wind turbine on it, and the utility's website doesn't even mention the word "coal" in its description of the Lamar Repowering Project. But the reality is a future dependent on coal that Angela, for one, isn't willing to accept for her four children.
"It isn't something I want to have my kids around," she says. "That's our biggest issue. Just like the companies that had salmonella in their eggs, these people should be held responsible for what they put into the air."
After doing some research on the Internet, Shirley Warren decided to contact WildEarth Guardians to see if the Santa Fe-based environmental group could help the disaffected locals mount a legal challenge to the coal plant.
Jeremy Nichols says WildEarth was thrilled to get involved. Most "citizen" lawsuits under the Clean Air Act — including two cases WildEarth brought against Xcel's Comanche and Cherokee plants, both approaching resolution — are essentially initiated by public interest groups, not local residents. "A lot of times we do work with communities, but it's not the driving factor of why we engage," he notes. "The difference here is that we were approached by the community, not the other way around. It doesn't get any better than this."
The primary claim of the lawsuit is that LLP and ARPA failed to obtain what's known as a MACT determination, short for "maximum achievable control technology," before construction of the plant began. Federal law requires that fossil-fuel plants generating 25 megawatts or more, like other major sources of pollution, must demonstrate that they are using the required technology to control emissions.
The plant's lawyers have argued that the MACT requirement doesn't apply in their case because in 2005, during the general rollback of environmental protections under the Bush administration, the EPA suspended the requirement for power plants. However, a federal appeals court upheld the MACT regulations three years later, and WildEarth contends that ARPA should not have proceeded with the plant without going through the review process.
ARPA also insists that the plant isn't a "major source" of pollution under the EPA's rules. Although its construction permit application states that it will be emitting more than ten tons a year of hydrochloric acid, one of the most prevalent hazardous pollutants from coal combustion — an amount that's over the threshold for what constitutes a major source — the company now says that the figure was overstated and that stack testing shows much lower emission levels.
WildEarth's attorneys counter that the plant has been using coal with "anomalously low chlorine content" in its tests. Even if the company screwed up its application, they argue, it can't use the tests to escape being designated as a major pollution source. "The federal law requires that you obtain your MACT determination before you construct," says DU's Harris. "There's no leeway for building the thing and then deciding what you're going to do with it."
The regulatory agency with direct oversight of the plant is the Colorado Department of Public Health and Environment, which is supposed to determine on a case-by-case basis if power plants in the state must meet MACT requirements. A spokesman for the agency's air-pollution control division declined to comment on the Lamar plant's MACT status or the current "compliance advisory" discussions with plant officials, saying that the process is a confidential enforcement action.
According to Nichols, the CDPHE has a history of reaching informal resolutions with utilities over violations rather than engaging in aggressive enforcement actions. "They partner with polluters," he says. "They're making motions, but we're looking for accountability."
That's the reason for the lawsuit. "These types of citizen enforcement actions don't happen that much anymore," Harris adds. "They're not easy to do. But the state isn't doing anything about it. Cherokee, Comanche, and now Lamar — they all have violations, and there haven't been any enforcement actions.