Court Rules Against PNM In Air Pollution Case
Judge Rejects PNM Defenses in Citizen Lawsuit Alleging More than 60,000 Clean AIr Act Violations at San Jan Power Plant

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February 5, 2004

The prospects for cleaner, healthier air in New Mexico significantly improved after Public Service Company of New Mexico (PNM) lost its first trial on air pollution violations at the San Juan power plant near Farmington. In a “citizen suit” brought by the Grand Canyon Trust and Sierra Club, Federal District Court Judge Bruce Black rejected PNM’s illogical argument that the company’s own air pollution monitors could not be used to show emission violations at the aging facility.

Pollution from the San Juan power plant has been an eyesore and health threat for years, regularly obscuring sacred sites like Shiprock, drawing complaints from its neighbors, and degrading visibility at nearby national parks and wilderness areas.
“The San Juan power plant is a real stinker that needs to be cleaned up, said Verl Hopper, a member of the Grand Canyon Trust and Sierra Club in Aztec, New Mexico, a small town near the plant. “I sure hope this ruling means we will get back the healthy air and clear skies that we used to have.”

The court’s ruling after a three-day trial paves the way for a second trial where the number of air pollution violations at the San Juan power plant will be counted. Already PNM’s monitor evidence – that it unsuccessfully sought to keep out of court – shows that the plant exceeded its opacity limit more than 60,000 times. Opacity is the density of the pollution coming from the plant’s smokestacks. It measures the amount of particles and gases emitted by the plant that are closely linked to human health impacts.

PNM argued that although its state-of-the-art continuous opacity monitors were specifically designed to measure the opacity of pollution emitted by San Juan, violations could only be determined by a person “eyeballing” the plume. The court rejected this argument, noting that similar opacity monitors are used to “calibrate” the tester’s eyeballs. The court also relied on a letter from the New Mexico Environment Department that said PNM’s opacity monitors – not visual inspections of the plume – are the method for determining compliance with the state’s permit. According to the court, “Here, the NMED interpretation is not only the normal reading of the words, but is clearly consistent with the applicable federal regulations.”

The Court also rejected PNM’s argument that even if its opacity monitors could be used, they could only be used to show PNM was complying with the law, not violating it. In its ruling the court said: “PNM argues that while the COM readings can be used to demonstrate opacity compliance they may not legally be used to prove opacity violations. On its face this position presents a logical contradiction. Noncompliance is the logical converse of compliance.”

“The Bush administration has failed to enforce the Clean Air Act and hold polluters accountable for putting New Mexican’s health at risk, said Mary Wiper with the Sierra Club. She added, “Since the Bush administration won’t hold polluters accountable, citizens need to act to protect our air.”

The court also dismissed PNM’s effort to discredit the accuracy of its monitors by claiming that high readings were due to water vapor. The court found PNM’s own expert witness, Dr. Grady Nichols, was completely unable to explain the extent to which, if at all, water vapor affected the readings: “In particular, Dr. Nichols testified that in order to determine the effect of condensed, uncombined water droplets on any COM opacity reading one would need to know, at a minimum, the quantity, particle size and distribution, and chemical composition of such droplets. Dr. Nichols admitted he had no such information. Thus, Dr. Nichols was unable to demonstrate that any of the excess opacity readings were caused by water vapor.”

According to the procedures established for the case, another trial will determine the number of air pollution violations at the San Juan power plant, followed by a final trial to determine what PNM must do to stop those violations and pay an appropriate penalty to the federal government.

“This decision clears the way for determining the number of violations at the power plant and then moving on to establish what PNM must do to stop violating the Clean Air Act and what penalties it should pay for having unlawfully fouled the air of the Four Corners region. We are looking forward to the next steps in getting this plant cleaned up,” said Rick Moore, Associate Director of the Grand Canyon Trust.

For more information contact:

• Rick Moore, Associate Director
  Grand Canyon Trust
  928-774-7488
  -
• Mary Wiper, Associate Representative
  Sierra Club
  505-243-7767

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