Legalectric

Horse’s Ass Award to DNREC’s John Hughes and (not-soon-enough) outgoing Gov. Minner (can’t have Delmarva Power’s Todd Goodman thinking he’s the only one!):

Let’s think a bit here… why this settlement?  What would make it worth their while?

NRG has been belching pollution forever, violating federal rules, violating the Clean Air Act.  For years this has been an issue, Green Delaware at the head of the charge.  There’s been building attention and recently, Citizens for Clean Power filed Notice of Intent to Sue (below).  And now, at the last minute of the Minner administration, DNREC does a deal with NRG that is so slimy, rolling over in a way that is less than a slap on the wrist to NRG and which could be just barely enough to prevent a suit by Citizens for Clean Power.  And what if this had been filed at the END of November to put Markell on notice that he was expected to act, taking away that power to do an end run from Minner’s administration?

Here’s the 60 day notice filed on behalf of Citizens for Clean Power:

IRGS 60 day Letter November 6 2008

Here are some Green Delaware Alerts about NRG’s Indian River Power Plant:

Alert 631 – Delaware needs to stop burning coal

And from the Archives:

Green Delaware Alert 238 – Minner administration proposes reduced reporting of SO2 releases

Green Delaware Alert 302 – Where does Delaware’s mercury come from?

Green Delaware Alert 499 – What problems are fundamental?  Will our legislators tackle them?

Green Delaware Alert 506 – A decision time for power plant pollution in Delaware

For more from Green Delaware on NRG, go to www.greendel.org and search for NRG

From the News Journal yesterday and today:

DNREC settles with NRG over Millsboro plant

Millsboro pollution settlement stirs anger

This came over the wire today from Pat Gearity, Citizens for Clean Power, who have been leaning hard on NRG, that’s their mission:

Dear supporters of clean air:

Two months ago, CCP filed a 60-day Notice of Intent to Sue NRG’s Indian River Power Plant for over 5,000 violations of federal law from 2004-2008, including exceedances of nitrous oxide emissions and the opacity standard (a measure of particulate density discharged from the stacks).  By law, DNREC and Governor Minner were also notified.  Yesterday, DNREC announced its own lawsuit against NRG for the very violations CCP has alleged and that the agency has done nothing about since 2004.  Why did DNREC take this action exactly 60 days before CCP could file its lawsuit?  BY ENTERING INTO A TOKEN SETTLEMENT WITH NRG, DNREC AND JOHN HUGHES ALSO ATTEMPT TO BAR THE FILING OF CCP’S LAWSUIT.

On what basis did NRG Indian River solicit DNREC’s legal action to stop CCP’s impending citizen suit?  Under the Clean Air Act, “diligent prosecution” in a court by a state agency precludes a private citizen suit if the agency files before the citizen suit can be filed.

On his way out the door, John Hughes took care of NRG again.  Under a citizen lawsuit, IRPP could have been fined as much as $32,500 per violation and could have been ordered to pay additional funds to mitigate the environmental damage.  Instead, the Secretary and the Agency stepped in to try to stop us for $1.00 per violation and a few token changes, with no environmental mitigation penalties.

NRG’s profits from IRPP make it a mega-million $ “cash cow” for the company.  DNREC’s attempted interference with citizen’s rights is disgraceful.  Change is desperately needed at DNREC.  Please write Governor-elect Jack Markell at:  Jack Markell <campaign@markell.org> or call him at 302 672-6700. Ask him to appoint a Secretary who will put public health, safety and corporate accountability above industry profit.

Please forward this email to interested persons.  CCP’s 60-day Notice Letter to NRG is attached FYI.

Pat Gearity, Citizens for Clean Power

CITIZENS DECRY DNREC ATTEMPT TO PREVENT PRIVATE LAWSUIT AGAINST INDIAN RIVER POWER PLANT

LEWES, DELAWARE, January 7, 2009 – Citizens for Clean Power charged today that the Delaware Department of Natural Resources and Environmental Control (DNREC) is attempting to bar the filing of a private citizen lawsuit against the NRG-owned Indian River Generating Station (IRGS) for over 5,000 violations of the federal Clean Air Act since 2004, by filing its own lawsuit and pursuing only nominal penalties from the company.

On November 6, 2008, the Mid-Atlantic Environmental Law Center, representing Citizens for Clean Power (CCP), provided notice of intent to sue NRG affiliate Indian River Power, LLC, the operator of the power plant (IRGS) in Millsboro, Delaware. On January 5, 2009, one week before CCP could file its case by law, DNREC filed its own lawsuit against Indian River Power. DNREC’s suit mirrors the charges made by CCP.  CCP’s notice letter charged that IRGS has violated provisions of the Clean Air Act, its Title V Operating Permit, and the emission limitations in various federal and state rules
and permits. The letter identified violations of state and federal opacity standards and nitrogen oxide standards from all four operating units at the plant. In its notice, CCP alleged that IRGS committed more than 4400 opacity violations and 771 violations of nitrogen oxide standards dating to 2004, and indicated the suit would seek financial penalties and injunctive relief to ensure future compliance.

“We have complained to DNREC about the pollution from this plant for years, but until our lawsuit approached, DNREC consistently declined to enforce the law,” William Zak, co-founder of Citizens for Clean Power, said. “Despite Indian River Power Plant being the biggest polluter in the state, DNREC has now essentially acted on the plant’s behalf to halt the meaningful deterrence and compliance-inducing injunctive relief we would seek through our suit,” Zak continued.

Each time that Indian River violated its permit and the underlying regulations a separate violation of the Clean Air Act occurred. Under a private citizen lawsuit, each violation can result in maximum civil penalties of up to $32,500.  Proceeding under state law, DNREC’s suit indicates it is authorized to seek financial penalties against the plant between $1,000 and $10,000 per violation. But the reality is
far, far lower. The filed Consent Order from DNREC, agreed to by Indian River Power, features a $5,000 penalty, along with other minor requirements.

“The pattern of opacity non-compliance at Indian River is so extensive that only significant penalties designed to deter future violations and an upgrade in particulate matter pollution controls will resolve the situation,” said Michael Fiorentino of Mid-Atlantic Environmental Law Center, Counsel to CCP. “At less than a dollar per incident, violating the Clean Air Act has never been this cheap.”

Zak was outraged by word of DNREC’s settlement. “It’s a major slap in the face to the public and particularly to the citizens of eastern Sussex County, who have been breathing toxic pollution from the Indian River plant for more than fifty years, with little or no advocacy by the one state agency charged with protecting them,” Zak said.

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As Pat Gearity reports, they’re not done with this yet… stay tuned for the rest of the story!

Another coal gasification bites the dust — yes, it took a coon’s age to get this posted, what can I say, the CapX hearings are taking up a lot of time… This was the best news in ages, continuing the theme that IGCC is a bad idea, too risky, too costly. This plant was one that seemed to have a lot of backing, which to me means that IGCC is done. When I’d posted about it, it garnered some wild NRG employee comments on this blog, ones that I hope that those employees’ bosses are aware of! I know NRG is watching, but I think some of their employees need to have their typing fingers taped together and/or not operate a computer while soused!

Here are a few articles with some choice comments:

From the Buffalo News:

Power Authority stops $1.6 billion plans for advanced coal plant at Tonawanda’s Huntley Station

Power Authority officials estimate that it would take an additional $175 million to $200 million per year in subsidies – on top of the significant aid already promised for the project – to bring the price of the electricity produced at the advanced coal plant down to the point where it could compete with other conventional sources of generation.

From newsday.com:

NYPA halts plans for clean-coal plant in Tonawanda

After pursuing various state grants and tax incentives, NYPA determined it is not possible to fully close the gap between what NYPA would have to pay for electricity and competitive market rates.

And from the Post Journal:

NYPA withdraws support for North Tonawanda clean coal project

”The economic, technological and regulatory obstacles are too great to warrant any further efforts at this time,” said Christine Pritchard, a NYPA spokeswoman.

… and…

NYPA officials were also uneasy about the technology. According to the company, there are only two IGCC plants operating nationwide, and 11 IGCC plants were either delayed or cancelled in 2007. In addition, the largest sequestration operation in the world is burying only 1 million tons of carbon dioxide underground annually, a third of what the NRG plant would be required to sequester – and carbon capture and storage technology has never been demonstrated off a clean coal power plant.

… and…

”It is also clear that an explicit and rigorous regulatory process with public support is a prerequisite for sequestration on a large scale. And while some amount of risk is necessary to prove new technology, the financial and environmental risk associated with this large-scale commercial power plant is simply too great,” the report concludes.

… and…

”Simply, at this time, the price gap is too large to overcome” said Pritchard of NYPA.

Tell us something we didn’t already know!!!