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Panel calls for rejection of TXU plant near Waco

24 August 2006

The Fort-Worth Star-Telegram

A state hearing panel dealt a major blow to TXU Corp.'s plans to build 11 new power plants, recommending Wednesday that environmental regulators reject the energy company's plans to build a large coal-fired plant southeast of Waco.

In a decision cheered by clean-air advocates, the panel of two administrative law judges rejected TXU's claims that the plant in Robertson County would use the best pollution controls commercially available to protect public health and the environment.

The plant -- one of 11 proposed by TXU to be built near Dallas-Fort Worth -- is the first to reach the administrative hearing level in the state permit process.

"This is just one step in the process and is in no way a final decision," TXU spokeswoman Kimberly Morgan said.

The case now goes back to the Texas Commission on Environmental Quality, which had granted preliminary approval to build the plant after Gov. Rick Perry issued an executive order last year mandating that the commission expedite permits for new power plants.

TXU said it plans to carry on with its plans to build the new plant, believing that the commission will overrule the judges and allow it to be built.

In a 42-page order released Wednesday, "the panel concluded that TXU failed to prove that proposed pollution controls would sufficiently limit emissions or that they could "reasonably be expected to work."

The judges also rejected computer modeling done by the company that showed that the power plants would protect public health and the environment, writing that TXU could not show that the computer analysis reflected what would actually be emitted from the plant.

The judges' recommendation appears to poke holes in the company's claims that the new plants will be among the cleanest ever built.

Paul Rolke, who lives about five miles from the proposed plant, never believed TXU.

Rolke, 52, organized area residents into the group Robertson County Our Land, Our Lives. It was his group that challenged the state permit that the judges reviewed.

"We have said all along these plants could and should be built cleaner," he said. "The position of our group has not been, 'Don't build it,' but rather, 'Build it clean.' People here are desperate for jobs. It's a rural and poor county. And I think the local politicians were swayed by the notion of jobs and tax revenue to the extent that they did not look closely into TXU's claims about how clean and environmentally conscious the plant would be."

The Oak Grove plant is part of TXU's $10 billion plan to build power plants and dramatically increase the state's energy production. The plan raised concerns among some elected leaders and clean-air advocates that pollution from the plants would harm air quality in Dallas-Fort Worth, although preliminary results of a state-sponsored study have indicated that it would not.

The company has vowed to cut emissions at all its plants by 20 percent in exchange for building the new ones.

But the decision from judges Carol Wood and Thomas Walston of the State Office of Administrative Hearings sharply dismisses the company's plan, saying the proposed pollution-control technology is not being used in similar plants and could not be expected to work effectively to protect human health and the environment.

TXU had proposed using a system used in some coal-fired plants to control ozone-forming pollutants by chemically altering the pollutants into harmless vapor.

But the judges noted that the Oak Grove plant would burn lignite coal, which produces high levels of ash. The ash likely would clog the proposed system, making it unable to control emissions of nitrogen oxide, the primary man-made component in ozone, company officials acknowledged during hearings in June.

The judges also found that the Oak Grove plant would have been allowed to emit as much as 60 percent more nitrogen oxides than two similar power plants recently permitted near Waco and San Antonio.

"The evidence at hearing revealed serious problems with controlling [nitrogen oxides] emissions from lignite," the judges wrote in their ruling.

Another key issue was the proposed pollution controls for mercury -- a toxic metal linked to birth defects and behavioral disorders.

The company proposed a combination of chemically altering emissions, bag houses to trap the emissions and filters to control mercury.

But as was the case with the ozone-forming emissions, the system has not been successfully used in another power plant.

The judges concluded that the system could not be expected to work.

Again, lignite coal was viewed as a problem.

The judges noted that the type of coal to be used contains as much as three times more mercury concentrations than other types of coal.

Wendi Hammond, a Dallas lawyer and clean-air advocate who presented the residents' case before the judges, argued that the plant needed to consider cleaner types of fuel.

"It was TXU's decision to use the dirtiest fuel possible," she said Wednesday. "It would have been a win-win deal for TXU but not for the rest of Texas."


What's next

The decision by two state administrative law judges rejecting TXU Corp.'s proposal to build a large coal-fired power plant southeast of Waco does not settle the issue.

The Texas Commission on Environmental Quality's three-member board has the ultimate decision on whether the Oak Grove plant can move forward. They will weigh the judges' recommendations against the Dallas-based company's desire to build the power plant.

TXU's lawyers have until Sept. 12 to file arguments against the judges' recommendation.

Representatives for nearby residents opposed to the plant have until Sept. 22 to file answers.

The three-member state commission will hear arguments, likely not before October, and then will issue a final order either for or against the Oak Grove plant proposal.

Appeals to the commission's final decision can be filed with state district court in Austin.

Sources: State Office of Administrative Hearings; Texas Commission on Environmental Quality

Scott Streater, 817-390-7657

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