In the spring of 2001, Tucson Electric Power (TEP) announced that it was going to add two new 400-megawatt units to its Springerville power plant. TEP’s proposal raised three concerns for the Trust: 1) the need to reduce pollution (primarily SO2 and NOX) from the plant; 2) coal-fired power plants had caused significant environmental damage to the Colorado Plateau and the new units would be the first new coal-fired units proposed on the Colorado Plateau in almost two decades; and 3) the plant would be an enormous source of carbon dioxide. Because of these multiple concerns, the Trust launched two efforts, one focused on reducing the pollution from the existing units and ensuring that the permit for the new units included the most stringent emission limits possible, and the other questioning the need for the new units because the power was not needed by TEP for its customers, and if it was, the need could be met in other, more environmentally friendly ways. The two efforts were pursued in two different venues: Federal Court and at the Arizona Corporation Commission.

On November 9, 2001, the Trust filed a lawsuit alleging that TEP was operating the existing units at Springerville without a proper air quality (Prevention of Significant Deterioration, or “PSD”) permit. The lawsuit was based on the fact that the original permit for the Springerville station was issued in 1977, just months before federal Clean Air Act regulations came into effect requiring tighter emission limits for SO2 and NOX, among other things. The new regulations required that construction commence within 18 months and that construction be completed within a reasonable time. The reason for these requirements was to keep companies from banking a permit obtained under the old, expiring standards, and then much later building a plant – avoiding the new, more stringent limits altogether.

Springerville’s Unit 1 began producing power more than seven years after the permit was issued and Unit 2 produced no power until 1990, more than twelve years after the permit was issued. If Springerville had been required to meet the new, stricter Clean Air Act limits, the plant would have emitted thousands of tons less pollution (SO2and NOX) every year. The Trust’s lawsuit alleged that the plant should be meeting current, tighter emission limits because it did not meet the requirements of its 1977 permit, meaning that the existing Springerville units should install modern-day, state of the art pollution controls to meet current Clean Air Act standards. TEP alleged that it had commenced construction because it had drilled water wells to provide cooling water for the plant within the required time frame.

While the lawsuit in federal court moved forward, the Trust and Western Resource Advocates (formerly the Land and Water Fund of the Rockies) were involved in hearings at the Arizona Corporation Commission, which must issue a “Certificate of Environmental Compliance” (CEC) before a new power plant can be built. Arizona statutes require that the Commission balance the “need” for the power to be generated by the proposed project on the “ecology of the state.” The Trust hired several experts who testified on environmental impacts and the lack of need for the power by TEP.

The Trust’s experts testified that the electricity that the new units will provide could easily and more inexpensively be met through energy efficiency programs; that the additional 7.6 million tons of CO2 produced by the new units will contribute to global warming, which is projected to have a devastating impact on Arizona’s native plants and animals; that the new units’ SO2 and NOX emissions will contribute to acid deposition, which disrupts sensitive ecological processes; and that the new units will emit an additional 10,640 pounds of cyanide, 1,720 pounds of arsenic, and 340 pounds of mercury, all of which are highly toxic.

Unfortunately, in November 2002, the Corporation Commission rejected the Trust and WRA’s arguments and granted the CEC for building the new units. In January 2003, the Trust and the WRA–with legal counsel provided by Tim Hogan with the Arizona Center for Law in the Public Interest–appealed the decision in Maricopa Superior Court, which upheld the Commission’s decision. In December 2003, the Trust and WRA appealed the Superior Court’s decision. Arguments were heard in October 2004 and it is possible that a decision will be issued in late 2004.

Meanwhile, in federal court, District Court Judge Earl Carroll dismissed the Trust’s lawsuit in March 2003, citing “laches”, which essentially means that the judge thought the Trust took too long to bring our lawsuit and that doing so “harmed” TEP. Judge Carroll also determined that drilling the water wells “commenced construction” on Springerville, thereby denying our allegation that the plant should have been required to meet more stringent pollutions limits. We immediately filed an appeal in the 9th Circuit Court of Appeals. Soon after the laches decision, TEP filed a motion to recover attorney’s fees. Judge Carroll ruled that TEP was entitled to a fee award, but held in abeyance his determination of an appropriate amount pending our appeal in the 9th Circuit.

On September 2, 2004, the Ninth Circuit reversed the District Court dismissal of the case because of laches and remanded the decision that TEP commenced construction by the date required by the Clean Air Act. In late September 2004, TEP submitted a request for rehearing by the Ninth Circuit.

Settlement Agreement

A consent decree resolving the Springerville litigation was lodged in April in Federal District Court. The decree resolves our federal enforcement action alleging that the plant was operating without a valid air quality permit. In addition, we signed a settlement agreement that requires the Trust to withdraw our petition to EPA requesting that it object to the plant's new permit; drop our challenge of the Arizona Corporation Commission's decision to allow construction of Unit 4 at Springerville; and not to object to a three-year extension of the deadline for building Unit 4. The Department of Justice, on behalf of EPA, has 45 days to comment on the decree before the court can accept it.

In return, sulfur dioxide emissions for all four units will decline 44% compared to the emissions from the existing two units; nitrogen oxide emissions will decline 23% (making Springerville one of the lowest NOx emitters on the Colorado Plateau); the potential for pollution from the existing units will be capped; and the owners of Unit 4 will spend $1 million dollars a year for five years on renewable energy and energy efficiency programs.

Non-GCT Links
Western Resource Advocates
Arizona Center for Law in the Public Interest
Tucson Electric Power

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