LITTLE ROCK — Southwestern Electric Power Co. can continue construction on its $2.1 billion coal-fired power plant in Hempstead County, the Arkansas Pollution Control and Ecology Commission said Friday.
By a vote of 10-2, the commission denied a petition by the Sierra Club and the Audubon Society, which asked thecommission to either deny SWEPCO's permit to build the plant or reinstate a stay on its construction.
Before the vote, commissioner John Shannon asked Michael O'Malley, the administrative hearing officer for the panel, about the validity of the environmental groups' arguments. O'Malley essentially agreed with SWEPCO attorney Kelly McQueen's contention that the primaryissue before the commission was whether the environmental groups met the burden of proof of why SWEPCO should be ordered to stop building the plant.
The two commissioners who voted to support the Sierra Club and Audubon Society petition were John Chamberlain and Scott Henderson. The 10 commissioners who voted to deny the petition were Lawrence Bengal, Darwin Hendrix, Charles McGrew, Dana Samples, Shannon, Lynn Sickel, William Thompson, Ephrain Valdez, Bekki White and Randy Young.
The two environmental groups filed the petition last month seeking a halt to construction because of a decision by the U.S. Environmental Protection Agency in Kentucky and because the Arkansas Court of Appeals inJune overruled the Arkansas Public Service Commission's decision allowing the plant to be built.
The Public Service Commission approved in 2007 SWEPCO's right to build the plant. The Kentucky ruling concerned the allowable level of pollutants to be emitted by a coal plant.
Venita McCellon-Allen, executive vice president ofAmerican Electric Power, SWEPCO's parent, said after the hearing that the company appreciated the Pollution Control and Ecology Commission's decision.
"We're going to continue to do good things in southwest Arkansas," McCellon-Allen said.
If construction continues on the 600-megawatt plant, it should be operational by early 2013, McCellon-Allen said. About 965 workers are building the plant. That total will increase to more than 1,400 at the peak of construction but will drop to about 110 employees when the plant begins operation.
The proposed John W. Turk Jr. plant is the centerpiece of SWEPCO's push to meet growing demand from its 113,500 customers in Arkansas, plus 358,000 more in parts of Louisiana and Texas. SWEPCO already operates a coal plant in Gentry, about five miles north of Siloam Springs.
Construction on the Turk plant began last year. State regulators voted in December to allow construction to continue during another appeal process, ending a brief stay.
McQueen, SWEPCO's attorney, argued that Arkansas law requires that someone filing a petition requesting a stay has the burden of proving why the stay should be granted. The environmental groups did not meet that burden of proof, McQueen said.
"The standard is not, as they allege, that SWEPCO must continue to come in and justify why relief from the stay should be continued," McQueen said.
McQueen also said that the Court of Appeals' overturning a decision by the Public Service Commission did not pertain to matters before the Pollution Control and Ecology Commission.
Richard Mays, attorney for the Sierra Club and the Audubon Society, said conditions have changed since the decision in December that allowed SWEPCO to continue construction. The changes, Mays said, are the EPA's ruling in the Kentucky case plus the Court of Appeals ruling,both of which "put into doubt the future of that plant."
"These changes make us understand and appreciate the reasons why, as expressed by the federal court, that you shouldn't allow construction to begin in the first place," Mays said.
"That's history and that's been done here. But the question is - under the circumstances that exist here today - whether construction should be permitted to continue."
McQueen said the panel made "the proper decision under the law."
"I think this issue about the stay [of construction of the plant] is now put to rest, barring some other attempt by them to get it stopped," McQueen said.
After the vote, Mays said he was not surprised the petition was denied.
But he said SWEPCO may never be able to operate the plant because of the possibility that the EPA won't allow a Clean Air permit to be issued if pollutant standards such as those in the Kentucky case aren't met.
"And, of course, if the [Arkansas] Supreme Court refuses to accept [SWEPCO's appeal of the Court of Appeals decision], that may well put a halt to the plant, too," Mays said.
Both Mays and McQueen said the Supreme Court could decide whether to hear SWEPCO's appeal of the Court of Appeals ruling within the next few weeks.
About 10 supporters and two opponents told the commission their opinions about the plant. Among the supporters were mayors from Hope and surrounding communities, the Mineral Springs school superintendent, state Sen. Barbara Horn, D-Foreman, and several workers at the plant.
Business, Pages 33, 38 on 09/26/2009