Group claims DNREC blocked suit against NRG

In the first days of 2009, the Delaware Department of Natural Resources and Environmental Control (DNREC) sued Indian River Power Plant LLC (NRG), owner and operator of the Indian River power plant in Millsboro, over more than 5,000 emissions violations stemming from 2004 to 2008. Just a day later, the two entities reached a settlement to resolve the violations.

The suit – and the settlement – came right before the end of a 60-day period of notice filed by grassroots environmental group Citizens for Clean Power (CCP) on Nov. 6, 2008, which declared the group’s intention to sue NRG over the violations – thereby prompting the CCP to call foul when the speedy settlement was announced Jan. 7.

“We are required by law to announce our intent to sue 60 days in advance,” said Bill Zak of CCP. Zak asserts that DNREC’s eleventh-hour suit and settlement essentially blocked any action by his group and allowed for DNREC to place minimal fines on NRG for the more-than-5,000 air emission violations from 2004 through 2008, including 4,405 opacity violations and at least 771 documented violations of limits on nitrogen oxide emissions.

According to DNREC, the settlement include a monetary fine of $5,000 total – $1 per violation – as well as enhanced procedures and parameters for optimized equipment performance, an operator incentive program wherein operators are rewarded for keeping opacity levels lower than legally required and the purchase of a ultra-fine particulate monitoring system at an approximate cost of $60,000.

“If it had gone to federal court, they could have been fined more than $30,000 for each violation,” emphasized Zak. (The exact figure is as much as $32,500 per day of violation, according to the CCP notice.)

Ali Mirzakhalili, administrator of Air Quality Management at DNREC, explained that “opacity violations” are visible smokestack violations. In past years, it would have been considered normal to see black or brown smoke coming out of the smoke stacks at coal-fired electricity generating plants. Nowadays, there are regulations about how opaque smoke can be and for how long.

“It used to be an aesthetic violation,” noted Mirzakhalili of visible smoke. “But we know now that it is an indication of particulate emission, although we don’t know how much. The smoke cannot block more than 20 percent of visible light for more than three minutes per hour.”

He said there are trained inspectors that visually keep track of the opacity, as well as instrumentation that measures opaqueness and other emissions. He also emphasized that the violations represent a small percentage of the power plant’s operating time.

Mirzakhalili said Citizens for Clean Power’s notice of their intent to sue merely acted a fire under DNREC that bumped the issue to the forefront, and DNREC’s action in filing suit and settling was nothing more than due diligence.

“[CCP] filed a notice through their lawyer that they intended to file a lawsuit stating the state has failed to enforce violations. And the only way citizens can sue is if the state fails to do so, so obviously that moved it up on my priority list,” explained Mirzakhalili. He also added that DNREC asked the group what they sought to get out of their action but said DNREC never heard back.

Zak views things differently.

“We felt this action was a blatant effort to protect NRG from serious penalty,” he said. “Their suit ate every aspect of our suit, so we couldn’t sue. They filed the suit and settled the next day with no public input. The fine is so small it’s ludicrous to be seen as a penalty.”

DNREC’s response to that assertion is that a heavy penalty, which could result in an incentive to fight in court, only drags the process out, without any real improvement to air quality.

“The deterrent is there is no benefit to violate the opacity standards,” said Mirzakhalili. “Improving the operation of the equipment helps to ensure operators that the units are not getting close to the [opacity] limit. It gives them the best chance of not exceeding the limits, as opposed to heavy penalties.”

Zak maintains that the $5,000 monetary penalty and the fact that NRG has to purchase monitoring equipment will do little to solve the problem with air quality.

“A $1-per-violation fine of $5,000 and a piece of equipment will not result in violations stopping,” he said. “We are looking to challenge what has been done.”

Citizens for Clean Power has also joined in the Center for Inland Bays’ resolution to recommend that the state require NRG to retrofit Indian River Power Plant’s Unit 3 with a cooling tower – which is thought to have less environmental impact and less impact on aquatic life than the current cooling provided by direct intake of bay water – no later than May of 2011.

Also, this March, CCP will be formally appealing to the Environmental Appeals Board DNREC’s October decision to permit a second Phase II landfill for coal fly-ash adjacent to the existing Phase I landfill that will reach its capacity within a year. The Phase I landfill was created in the mid-1970s and thus operates under lesser regulations than are now required.

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