Clean Air Suit Against Xcel's Comanche 3 Coal-fired Boiler Gets Green Light

Federal Judge Refuses to Throw out WildEarth Guardians' Challenge of Xcel's Failure to Keep Toxic Pollution in Check

Denver-Ruling that Xcel violated the Clean Air Act, a federal judge yesterday agreed that a lawsuit challenging the utility’s failure to limit toxic air pollution, including mercury, from the Comanche 3 coal-fired boiler should proceed.

“This is a victory for public health,” said Jeremy Nichols, Climate and Energy Program Director for WildEarth Guardians. “Xcel is not above the law and this ruling ensures that the company will be held accountable for flouting our clean air safeguards.”

The ruling comes in response to a motion by Xcel Energy to dismiss a lawsuit filed by WildEarth Guardians in July of 2009 challenging the failure of the company to ensure Comanche 3 would meet “maximum achievable” limits on toxic air pollution in accordance with the Clean Air Act. Under section 112(g) of the Clean Air Act, Xcel was not allowed to even begin construction of Comanche 3 until ensuring that the coal-fired boiler would be constructed to achieve stringent reductions in toxic air pollutants, such as mercury, hydrochloric acid, and lead. Despite this, it was only in late February, after construction of Comanche 3 was completed, that Xcel formally obtained “maximum achievable” limits from the State of Colorado.

In rejecting Xcel’s motion to dismiss, Judge Walker Miller of the U.S. District Court for the District of Colorado held that “Xcel’s continuing construction [of Comanche 3] was then a violation of Section 112(g) [of the Clean Air Act] because a MACT [maximum achievable control technology] had not been determined.”

The ruling now opens the door for the court to assess civil penalties against Xcel Energy over the violations. Under the Clean Air Act, civil penalties can be assessed at a maximum rate of $37,500 per violation per day. Although the exact date on which Xcel’s violations began will be settled later, Judge Miller was clear that violations began at least in March of 2009, meaning Xcel faces more than $11 million potential penalties.

“We’re pleased that Xcel is now in compliance with the law, but that doesn’t let the company off the hook for a year, possibly more, of violating the Clean Air Act,” said Nichols. “We plan to seek the maximum in civil penalties-which will ultimately be paid by Xcel’s shareholders, not ratepayers-to ensure full accountability.”

WildEarth Guardians is being represented by the University of Denver Sturm College of Law Environmental Law Clinic, including Clinic Director Mike Harris and law students Chris Brown and Sarah Coleman.

View the Xcel Motion to Dismiss (PDF)


 

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