On March 12, 2009, the 8th Circuit dismissed Hempstead County Hunting Club’s (HCHC) petition for injunctive relief to prevent the construction of the Southwestern Electric Power Company’s (SWEPCO) Turk Plant, a 600-megawatt pulverized coal-fired power plant, as moot in the case titled Hempstead County Hunting Club v. Southwestern Electric Power Co., No. 08-2613 (8th Cir. Mar. 12, 2009).
After getting a CECPN from the Arkansas Public Service Commission, SWEPCO began preconstruction while waiting for an Arkansas Department of Environmental Quality (ADEQ) air permit. Last May, HCHC sued in federal court to enjoin SWEPCO from performing any more construction-related activities on the ground that SWEPCO had not yet obtained a PSD permit. In November, ADEQ issued the air permit. Because the only question in the federal court was whether SWEPCO had a PSD permit, and not whether SWEPCO had a valid PSD permit, the district court dismissed the federal lawsuit. The 8th Circuit affirmed.
In December HCHC challenged the ADEQ air permit. That challenge is currently before an administrative law judge (ALJ) with the Arkansas Pollution & Ecology Commission (APC&EC). The ALJ has not yet held a hearing on the merits of the permit challenge. Also, although a challenge to the underlying PSD permit usually operates as a stay on construction, SWEPCO moved the APC&EC for relief from the stay. And that relief was granted.
In sum, because HCHC only challenged SWEPCO’s construction of the Turk Plant due to lack of any PSD permit, and not on the ground that SWEPCO lacked a valid PSD permit (which has yet to be decided), SWEPCO can begin/continue construction of the Turk Plant.
To access the 8th Circuit’s opinion, please click http://www.ca8.uscourts.gov/opndir/09/03/082613P.pdf.
Posted on
Mon, March 16, 2009
by RWCS