FARMINGTON — The state of New Mexico filed a legal request Friday to derail the mandated issuance of the U.S. Environmental Protection Agency's air permit for the Desert Rock Power Plant.

Desert Rock is planned for construction near Burnham on the Navajo Nation. The 1,500 megawatt plant would generate electricity for customers in the Southwest.

The filing in U.S. District Court for the Southern District of Texas/Houston Division came at the end of the period to comment on the consent decree. That's the federal court that ordered EPA earlier this year to issue its consent decree no later than July 31.

"I think there's every reason to deny it," said Dailan Long regarding the operating permit at stake for Desert Rock.

Long is community organizer for Diné Citizens Against Ruining the Environment, a group diametrically opposed to San Juan County's third coal-burning power plant.

The state of New Mexico's motion to intervene pleads for a longer study period before EPA issues its decision.

"New Mexico must intervene now because the existing parties to this action have made it abundantly clear ... that they will not comply with statutory requirements in the permitting process," the filing states.

The shortened time until the ruling, mandated by the consent decree, "precludes EPA from satisfying crucial requirements in the permitting process," the request continues. "It requires EPA to act — contrary to law — without fulfilling its legal obligation .


.. to complete a formal consultation with the Fish and Wildlife Service."

The filing claims if Desert Rock begins operating, its estimated "more than 10 million tons per year of carbon dioxide" will impact greenhouse gas emissions — something Gov. Bill Richardson took aim against in 2005 when he issued a proclamation in which he vowed to reduce the gasses.

New Mexico is not alone in its objections. The state of Colorado also filed comments.

"Colorado has significant concerns regarding the decree ... (it) inappropriately accelerates final action ... prior to resolution of critical environmental issues," its letter to EPA Administrator Stephen L. Johnson stated. "The key unresolved air pollution issues ... include issues relating to mercury controls and emissions, greenhouse gases, ozone and regional haze."

Mercury and ozone issues are also among concerns expressed in both Friday filings.

"New Mexico is on the brink of non-attainment for ozone in the very region in which Desert Rock is proposed," the suit states.

San Juan County's ozone readings so far this summer have reached, but not passed, the new federal ozone standard of 0.075 parts per million (ppm) set by EPA earlier this year.

Timely decision expected

Jeff Holmstead, who works for the Washington, D.C.-based law firm Bracewell and Giuliani that represents Sithe Global and the Navajo Nation, expects EPA to issue a permit at the end of July.

Holmstead headed EPA's Air Program from 2001 to 2006.

"We don't expect a denial," Holmstead said of the EPA permit decision. "I don't anticipate it will be before the 31st."

Echoed Frank Maisano, spokesman for the legal firm, "We have a date certain, and that's a good thing for the Navajo Nation who's been waiting for five years."

Holmstead said the state's legal arguments regarding the consent degree "make no sense."

But even if EPA issues the operating permit holding up Desert Rock, Holmstead said construction crews probably would not be able to start building the 1,500 megawatt plant. That's because a recent Washington, D.C. Federal Circuit Court ruling regarding mercury emissions would require Desert Rock to conduct a Maximum Achievable Control Technology study to ensure its mercury emissions are the lowest possible.

"Because of the recent court ruling, every new power plant may need a MAC ruling," Holmstead said. "In the case of Desert Rock, it's not a big deal."

Desert Rock's backers tout the plant as being the cleanest-burning possible.

The plant also needs a federal environmental impact statement before it can move forward. 

Cornelia de Bruin: