Sevier Citizens for Clean Air and Water (SCCAW)’s position on the proposed natural gas power plant in Sevier Valley Utah.
Below is a summary of a presentation by SCCAW President Dick Cumiskey on February 21, 2013
Why are you here this evening? I know why I am here. For some time now I have been stewing over Utah’s decision to steal one of the greatest assets we have here in Sevier County Utah – our fresh air. You have a God given right to this air. You can purchase bottled water if you don’t like what pours from the faucet. What choice do you have if the air you rely on is suddenly polluted? Bottled air? Imported air? Designer air? That is exactly the dilemma we face if UDAQ is to grant Sevier Power the right to destroy our air. There is no substitute for clean air.
Forget the idea of jobs – they will be scarce. Forget tax revenue – that can’t purchase your health. Take the stand that this air belongs to you. Let no one take it away from you.
UDAQ Approves a Pollution right to Sevier Power Company despite public hearing and written comments.
April 2012 was the publication date for the draft of the Intent to Approve by UDAQ for Sevier Power Co. SCCAW immediately filed to have a public hearing on the draft which was soon scheduled for the end of May. It takes a lot of work to prepare for a hearing of this type as we have to deal with all of the legal ramifications of the order. You well know that one just can’t stand before the hearing board and say “I don’t want a power plant.” No matter how serious you are, that does not constitute a legal argument. The Board of Directors asked each of you to prepare a comment, either in writing or verbal. The BOD prepared both. Many of you either spoke before the hearing board or submitted written comments. For that we thank you.
On May 28, 2012 Sevier Citizens for Clean Air & Water filed comments on the Intent to Approve with the Utah Division of Air Quality covering nine separate challenges to the draft Approval Order. These comments were in addition to the comments made before the Public Hearing which was held the final day of May, 2012.
It was anticipated that at least some of these comments made either at the public hearing or in supplemental written format would have some impact upon the final decision of UDAQ prior to the issuance of an Approval Order. At that time we did not seek to have the Approval Order withdrawn, or even to seek “major modifications.”
Much to our surprise, the final Approval Order, when issued on October 21, 2012 was nearly “word for word” with the original draft order. We were surprised, shocked and disappointed to say the least. UDAQ effectively threw us into the gutter. The Board of Directors of SCCAW met soon thereafter and it was decided a protest would be necessary to the Approval Order.
The Board decided that we might be able to undertake this appeal with the aid of an experienced attorney.
SCCAW history on appealing to Local Government, UDAQ and Higher Courts
Going back to 2008 or maybe earlier, probably to when Cindy Roberts and Jim Kennon started to question the viability of the coal plant in 2001. With all of the expertise that was developed in those early years of protests, SCCAW gained recognition and credibility from some of the largest national environmental groups. Grass roots is always the preferred approach with national groups and they liked what they were seeing here in Sevier County. History indicates the local approach is often more effective than a high profile national campaign. SCCAW got the attention of some of the big players. Several of these groups started conversations with us, I’m sure to get a feeling of our dedication and level of expertise. Confidence in our organization encouraged a few to help our cause both with money and legal assistance.
Were we thinking about the Supreme Court at the time? No. We focused first upon District Court and challenged Sevier County over their land use designation called a Planned Unit Development to Sevier Power. It seemed like the logical place to start. Well, our hopes were dashed! After the brusque brush off we obtained in District Court, we stiffened our resolve and decided we could not drop our rightful claims and just walk away from the situation. Together we resolved that we would appeal the Air Quality permit to UDAQ’s hearing board. That turned out to be a prolonged battle encompassing numerous trips to SLC. We argued the permit together with the Sierra Club, each selecting what we believed to be our best and soundest arguments. For those of you who attended and saw the alignment of attorneys and “expert witnesses” opposing us, it was an eye opener.
After being turned down on all points by UDAQ and their board, we decided to appeal this decision to the Utah Court of Appeals. Even though we lost at UDAQ, we felt confident enough to proceed. It was at that point we began the search for experienced attorneys. You heard the results earlier. Now we were really stepping into the unknown. We would do whatever it took to gain our appeal a fair hearing. Jim commenced working 60 hour weeks, confident that we would prevail. I was developing strategy while Jim was doing most of the research to substantiate our claim.
The Utah Court of Appeals, recognizing that this was both a time sensitive situation and that any decision would be appealed, wisely moved it upstairs to the Supreme Court.
We, of course, fought that appeal to a successful completion before the Utah Supreme Court, perhaps the crowning performance for the two of us. It’s hard to describe our feeling when the final decision to remand the Approval Order to UDAQ was announced. “Finally its over. There will be no power plant”
Well, we were wrong again. Sevier Power came back with a proposal for a natural gas fired plant. By this time Jim Kennon had left this life and I became the president of SCCAW. Now what am I getting myself into was my thought of the day.
Since the proposal for a new gas plant was first made through Sevier County, I felt that our best chances of obtaining a facility that we could live with would be to work with the county in processing the permit. Collectively, the SCCAW Board of directors was not in the mood for an out-and-out rejection of the plant, nor did we believe the local citizens would be that opposed to one. Many were tired of the fight.
The first step would be the Planning Commission. It was apparent from the outset that they were determined to approve the project as submitted and just send their recommendations upstairs to the County Commission. Other than Evelyn Nielson asking what color Sevier Power intended to paint the picnic tables, no recommendations for change were made to the application.
Fortunately the County Commissioners were more amenable to suggestions and SCCAW made quite a few to them. Many of these recommendations were subsequently incorporated into a Sevier County permit, issued in November, 2010. We were at least mollified.
Next up would be the application and Notice of Intent to UDAQ for an air quality permit. It was then, and only then, that we began to realize the application for the natural gas fired power plant would be for double the electrical output of the original coal – fired plant. Why we hadn’t focused on this before is anyone’s guess but that presented a new realization. Now what should we do?
While a natural gas plant secretes approximately one half the pollution of a coal plant its equivalent size, doubling its size puts us right back where we were several years ago. The county would not rescind its permit so we had to go after the air quality permit.
I initially offered to work with UDAQ to frame out a permit that might be acceptable to the citizens of Sevier Valley but it did not take long to realize that my input was neither welcome nor would be considered. Foiled again!
Now to return to where I started. In meeting with Marcus Taylor, a well respected local attorney, he agreed to do the legal paperwork to mount a legal challenge and I agreed that SCCAW would undertake most of the strategic research. The formal request for adjudication was filed and I began to develop strategy. Now I am deep in research. My estimate is that 30 hours of my time per week is going into this appeal.
Current UDAQ situation, State of Appeals
Since that date of filing, three things have happened – all of them at UDAQ.
- First, our filing was superseded by a slightly earlier filing by Utah Physicians for a Healthy Environment over the issuance of a permit to expand the oil refineries in Woods Cross, UT.
- Second, UDAQ has been unable to complete its required work under an EPA mandate to implement PM 2.5 regulations. These were due in mid-December and are unlikely to be completed before early summer.
- Third, the worst winter inversions in decades have befouled the Wasatch front air making it the dirtiest in the nation. You can well imagine how UDAQ is being besieged.
Add to that a new process at UDAQ for hearing appeals. No longer will the Air Quality Board directly hear an appeal. Under new legislation, the appeal will be heard by an administrative law judge. To date, no one has been named to this position. Even after someone is named, all the rules and procedures will have to be ironed out. Only after the appeal has been heard and ruled upon by this administrative law judge can the appeal be taken to the court system.
How long will this take? Your guess is as good as mine. My current thinking is that the initial appeal of UPHE will be heard sometime during the summer at the earliest. SCCAW’s appeal could be heard after that.
SCCAW’s Appeal to UDAQ and beyond
There are nine separate items in the appeal.
- Air monitoring data for Sevier Valley is older than the one year called for in regulations.
- After allotment of pollution increments to SPC, there will be little left for future economic development.
- The prevailing and dominant, southerly winds in Sevier Valley will impact Utah County disproportionately. Utah County is already “non-attainment.”
- Frequent, and persistent, inversion conditions in Sevier Valley will cause entrapment of air borne pollutants. Not accounted for in the Notice of Intent.
- There are already an above average number of residents with heart and breathing disorders and a large number of people on oxygen. It will only get worse.
- Rocky Mountain Power’s Integrated Resource plan does not call for any added generating capacity to be built in Utah.
- There is no demonstrated need for additional generating capacity in central Utah.
- The Governor’s Energy plan stresses efficiency, conservation and demand response over new construction.
- A unique challenge invoking the Civil Rights Act of 1964, the Clean Air Act and the Americans with Disabilities Act.
How is all of this going to play out? We don’t know at this moment. What we do know is that we want someone in the State to take the citizens of Sevier County seriously and listen to our reasoning. We believe we are right and will continue to believe so until proven otherwise.
So what does all of this mean to you? The air you breathe is public property. The purpose of the Clean Air Act was to both protect the air and to prevent further pollution of it. That is the very purpose of SCCAW’s challenge to the Approval Order for Sevier Power. Should two people from Bountiful be allowed to change our lifestyle forever (Sevier Power Company)? When 20,000 of us will have to breathe the consequences? If you value clean, healthy air as much as some of us do, you will get involved with new vigor. Many of us either moved to Sevier Valley or remained here because of its pristine air, water and healthy environment. This is our air!