The Texas Commission on Environmental Quality expects to soon consider a decision by a state court to remand to the agency air permits for the White Stallion Energy LLC (WSEC) power plant.
The commission expects to take up the issue at its June 13 meeting.
The permits cover the construction and operation of a new 1,200-MW (net) power plant in Matagorda County. Those permits, covering areas like prevention of significant deterioration and hazardous air pollutants, are often referred to in documents as one permit since the commission issued them as part of one package.
The commission will take oral argument at the meeting on the remand issues. The Environmental Defense Fund (EDF) will speak first, followed by WSEC, the Executive Director of the commission and the state Office of Public Interest Counsel.
Arguments over the project have been flying in recent months. For example, WSEC filed April 26 arguments with the commission over some contentions lodged by the Sierra Club. “First, like EDF, Sierra Club asserts that it is improper for project development to continue through other regulatory programs while an air permit is pending because Sierra Club does not like the Commission’s validly enacted rules for later altering or amending permits,” said the developer. “Sierra Club’s theory is that ‘the facility for which demonstrations must be made is the facility that will actually be built.’ Aside from ignoring the statutory and regulatory ties to proposed facilities, this interpretation of the law cannot realistically be implemented. Even Sierra Club, after asserting its interpretation, immediately backtracks by conceding that not ‘every application submitted by an applicant must be reviewed by the Commission for consistency with all other applications for the same facility,’ but it provides no meaningful line for when such review might be required, other than a protesting parties’ assertions that some particular filing suddenly makes the air permit application ‘outdated.’”
The Texas Supreme Court in December 2011 denied a request by WSEC to overrule a lower court’s decision to send the air pollution permits back to the commission. The lower court ruled in 2011 in favor of an EDF argument that significant changes in how the plant will be constructed and run made during the application process creates too much uncertainty about expected levels of toxic air pollution from the plant.
Much of the argument centers on whether some site infrastructure changes that WSEC made while pursuing a U.S. Army Corps of Engineers water permit for the project invalidate the previously-issued air permits, which had been based on original site plans. WSEC argues that such relatively minor project changes are allowable updates during a multi-year, multi-permit regulatory review process.
The TCEQ had issued the air permits in December 2010, which covered both petroleum coke and Illinois Basin coal as potential fuels for the plant. Fuel for the plant would be delivered by barge via the Colorado River and also by rail.