Judge fails to dismiss lawsuit over Big Brown coal plant emissions

A federal court in Texas has refused to dismiss a May 2012 lawsuit filed by the Sierra Club against Energy Future Holdings and its Luminant Generation Co. LLC subsidiary over emissions from the coal-fired Big Brown power plant.

The lawsuit, filed at the U.S. District Court for the Western District of Texas, involves accusations that the plant puts out excessive levels of particulate matter, and that the plant is violating opacity limits under the Texas State Implementation Plan and its Title V air permit. The Sierra Club lawsuit is based on data and information that the utility company filed with state regulators.

In his order, Judge Walter Smith Jr. found all of the company’s arguments about the Sierra Club failing to state a claim upon which relief could be granted and that the Sierra Club failed to provide enough pre-lawsuit notice to the company to be without merit.

Ilan Levin, associate director for the nonprofit Environmental Integrity Project, which is representing the Sierra Club in the lawsuit, said about the Feb. 6 decision: “The Court’s ruling allows our lawsuit to move forward and proceed to trial. We look forward to proving our case and to bringing this power plant into compliance with basic air pollution standards.”

Bruce Nilles, Director of Sierra Club’s Beyond Coal Campaign said: “Energy Future Holding’s data shows that the Big Brown coal plant has repeatedly violated fundamental clean air safeguards. It is time for the company to comply with the law. At a time when wind energy is producing record amounts of power, tax revenue, and jobs in West Texas, we don’t need 40-year old power plants that can’t play by the rules.”

Luminant operates Big Brown, a 1,150 MW power plant in Freestone County. The plant’s two units generate electricity with a blend of coal, including locally-mined Texas lignite. The electricity generated is supplied to 23 million Texas customers via the electric grid operated by the Electric Reliability Council of Texas (ERCOT).

Luminant says this suit part of broader anti-coal campaign

The Sierra Club seeks to enjoin the operation of Big Brown and purportedly extract hundreds of millions of dollars in penalties from defendants based on claims that the plant violated the 30% opacity limit in Texas regulations on 6,520 occasions between July 2007 and December 2010 and violated the applicable particulate matter limit on at least 370 occasions between January 2008 and July 2011, said Luminant in its failed motion to dismiss this case.

“But in seeking this drastic relief, Sierra Club’s complaint artfully dodges the critical fact that the air emissions over which it is suing took place during periods of maintenance, startup, and shutdown (‘MSS’) at the plant—emissions that the U.S. Environmental Protection Agency (‘EPA’) and the Texas Commission on Environmental Quality (‘TCEQ’) have always authorized or excused by regulatory exemption, permit condition, or affirmative defense,” said the Luminant motion to dismiss. “These emissions are accepted by the regulatory agencies because it has been known, from the time the plant was originally constructed, that the equipment that controls opacity and particulate matter at facilities like Big Brown does not operate safely and effectively during MSS periods, and it would be unfair to impose penalties for unavoidable emissions.”

The company added: “Sierra Club’s complaint, then, is in reality a direct attack on these existing regulatory provisions that address MSS emissions, including those in Big Brown’s current air permits. Indeed, Sierra Club has mounted a national campaign challenging MSS provisions across the country. And, with respect to Texas, Sierra Club is presently pursuing court challenges to EPA’s approval of Texas’s affirmative defense for unplanned MSS and to TCEQ’s amendment of Big Brown’s air permit to authorize planned MSS emissions. The present ‘citizen suit’ by Sierra Club (and a similar suit it filed in the Eastern District of Texas involving another Luminant plant) is simply an extension of its national policy agenda against currently-authorized MSS emissions.”

The judge in his Feb. 6 ruling said that the company can raise these kinds of issues about what are allowed emissions at Big Brown during the summary judgment phase or at trial.

The October 2012 Form 10-Q filing of Energy Future Holdings said about the two related lawsuits in play here: “In September 2010, the Sierra Club filed a lawsuit in the US District Court for the Eastern District of Texas (Texarkana Division) against EFH Corp. and Luminant Generation Company LLC (a wholly-owned subsidiary of TCEH) for alleged violations of the Clean Air Act (CAA) at Luminant’s Martin Lake generation facility. In May 2012, the Sierra Club filed a lawsuit in the US District Court for the Western District of Texas (Waco Division) against EFH Corp. and Luminant Generation Company LLC for alleged violations of the CAA at Luminant’s Big Brown generation facility. The courts have scheduled these cases for trial in the summer of 2013. While we are unable to estimate any possible loss or predict the outcome, we believe that the Sierra Club’s claims are without merit, and we intend to vigorously defend these lawsuits.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.