FARMINGTON — Confidence, tempered by expectations of litigation, describe the sentiment at Bracewell and Giuliani, the Washington, D.C., law firm representing Sithe Global as it awaits permission to build Desert Rock Power Plant.
"The only assumption we can make is that the Environmental Protection Agency will make a decision on the operating permit," Jeff Holmstead said.
EPA is mandated by consent decree to issue its decision on the air permit by July 31. Sources at the federal agency remain unanimously mum on progress toward a decision.
"There is no reason to deny the permit," Holmstead said. "We live in a society based on the rule of law. If we meet the standards, legally we are entitled to get it."
At the same time Holmstead and others at the large law firm watch the clock tick toward the mandated deadline, they equally expect a lawsuit to follow on the heels of the EPA's action.
"It will be litigated," Holmstead said. "The Sierra Club has raised a lot of money to challenge this, but it has very little to do with Desert Rock — it has everything to do with not allowing anything to be built."
The cost of fighting such a lawsuit is "frustrating," he said.
Desert Rock, which is years in the planning stages, would be located near Burnham on the Navajo Nation. It would be San Juan County's third coal-fired power plant.
More steps lie ahead
Having the operating permit does not guarantee construction crews can start work soon.
Sithe Global must undertake a Maximum Achievable Control Technology study to ensure Desert Rock's Mercury emissions will be at the lowest possible level.
Mercury emissions were among several concerns detailed in a request filed by the state of New Mexico on the last day of an EPA consent decree-related comment period earlier this month.
The filing stated if Desert Rock begins operating, its estimated "more than 10 million tons per year of carbon dioxide" would impact greenhouse gas emissions.
"Because of our (Sithe's) desire to locate on tribal lands there are hoops to jump through ... then we need to get an environmental impact statement and a lease from BIA," Holmstead said. "It's highly unlikely the MACT determination will change anything."
Diné Power Authority wants funds
To further complicate the picture, the Navajo Nation Council's summer session has a spending measure that could send $1 million to Diné Power Authority for work on the controversial plant and a transmission line.
"It's a standalong piece of legislation," said Steven C. Begay, DPA's general manager. "It would be used for DPA staff, board consultants and operating expenses."
Diné Citizens Against Ruining Our Environment and Doodá Desert Rock spoke about the funding possibility the day after it became public.
"The Tribal Council is wondering what's being done with the funds," said Dailan Long, Diné CARE community organizer. "They could be invested elsewhere than Desert Rock."
Diné Power Authority, the entity that would operate Desert Rock, asked for the $1 million supplemental appropriation. The tribe's Office of Management and Budget already has said Diné Power Authority should have submitted its request for the fiscal year 2008 budget, according to Elouise Brown, Doodá Desert Rock Committee President.
A sticking point for Doodá Desert Rock is DPA's lack of reporting on its funding to the Tribal Council.
"Diné Power Authority did not report where it got the money to operate thus far this fiscal year, and OMB said it should have done so," Brown stated in a press release dated July 21.
Responded Begay, "In fiscal year 2008 we didn't get any appropriation, we carried over funds from '07. This is our first '08 request and it's to help us get through the EIS (environmental impact statement) and air permit process. Also, we anticipate being sued by Doodá if we get the permit."
Cornelia de Bruin: