The Gas Plant Chapter

What happened after the win

The December 2009 ruling did not end the project. It ended the coal version of it.

Rather than start over under 2009 standards for a coal-fired plant, the developer began signaling other options. By March 2010 the company was reported to be considering relocating or converting to natural gas. Coal financing nationally was collapsing at the same time, and the economics that had made a merchant coal plant attractive in 2003 were gone.

Sevier County issued a permit for a gas plant in November 2010. SCCAW did not fight that permit. The board had concluded that working with the county on conditions was a better use of what it had left than an outright rejection, and it got a number of its recommendations written into the county permit. Many people in the valley were tired of the fight.

The number nobody expected

The application that went to the state told a different story than the county process had.

On September 8, 2011, Sevier Power filed a Notice of Intent with the Utah Division of Air Quality to build a 580-megawatt combined cycle natural gas plant near Sigurd. The company revised the filing on January 19, 2012.

Cumiskey, writing about the moment the group understood what it was looking at:

While a natural gas plant secretes approximately one half the pollution of a coal plant its equivalent size, doubling its size puts us right back where we were several years ago.

That is the whole chapter in two sentences. The fuel got cleaner. The plant got bigger. The valley came out roughly where it started.

What the permit allowed

The Division issued its Intent to Approve on April 11, 2012, DAQE-IN125290003-12, prepared by engineer John Jenks and signed by New Source Review Section manager Martin D. Gray. It is a new major source under Prevention of Significant Deterioration review.

Permitted annual emissions, tons per year

• Particulates, PM10 and PM2.5106 each
• Nitrogen oxides168.3
• Carbon monoxide577
• Sulfur dioxide25.7
• Volatile organic compounds91.6
• Combined hazardous air pollutants8.5
• Greenhouse gases2,019,226.1, expressed as carbon dioxide equivalent

The permit set the stack height at no less than 165 feet. The 2004 coal order had required at least 460.

The 2012 hearing

SCCAW asked for a public hearing on the draft as soon as it was published, and got one for the end of May.

The group filed written comments with the Division on May 28, 2012, raising nine separate challenges to the draft order. The public hearing was held on May 31, 2012 at the Sevier County Administration Building. Members spoke and submitted written comment.

The nine challenges, as the group listed them, were: that the air monitoring data for Sevier Valley was older than regulations allowed; that allocating pollution increments to the plant would leave little room for future economic development in the county; that the valley’s prevailing southerly winds would push pollution into Utah County, already in non-attainment; that the valley’s frequent and persistent winter inversions would trap pollutants in ways the application did not account for; that the area already had an above-average number of residents with heart and breathing disorders; that Rocky Mountain Power’s integrated resource plan called for no added generating capacity in Utah; that there was no demonstrated need for more capacity in central Utah; that the governor’s energy plan prioritized efficiency and conservation over new construction; and a combined claim under the Civil Rights Act of 1964, the Clean Air Act, and the Americans with Disabilities Act.

The final Approval Order was issued on October 21, 2012. In Cumiskey’s account it came back nearly word for word with the draft.

We were surprised, shocked and disappointed to say the least.

The board decided to appeal.

The 2014 challenge

This time the group lost on procedure.

SCCAW retained Marcus Taylor, a local attorney, to handle the filings, and did most of the strategic research itself. The ground had also shifted underneath the appeal. New legislation moved air permit appeals away from the Air Quality Board and to an administrative law judge, and at the time SCCAW filed, no one had been appointed to that position and the procedures did not yet exist.

The group did not file a proper petition to intervene in the permit proceeding. An administrative law judge recommended dismissal. The Utah Department of Environmental Quality adopted that recommendation.

On October 30, 2014, the Utah Court of Appeals affirmed the dismissal in Sevier Citizens for Clean Air and Water, Inc. v. Department of Environmental Quality. The court found the group had failed to demonstrate a substantial legal interest in the proceeding. Twenty-one pages of comments submitted by Cumiskey were before the agency, but the court concluded they did not tie specific harms to specific members of the organization, which is what the standing requirement demanded.

The gas permit stood.

Why this is on the site

It would be easy to end this archive on December 4, 2009 and leave it there.

The group kept working for five more years after the headline victory, and the last thing it filed did not succeed. That is a truer account of what small-town environmental organizing actually looks like than a story that stops at the win. The 2014 loss also has a specific lesson in it: the same standing doctrine that the Sierra Club won a landmark expansion of in 2006 is the doctrine that ended SCCAW’s gas plant challenge in 2014. Procedure decides cases.

The coal plant, the thing the group formed to stop, was never built.

Land use litigation, briefly

Alongside the air permit fights there was a parallel dispute over county land use. Sevier Power’s conditional-use application had been deemed complete on December 19, 2007, before Sevier County voters passed Proposition One in November 2008. On March 26, 2009, state Advisory Opinion No. 65 concluded that the company held a vested right to have that application judged under the ordinances in effect before the initiative passed.

That question was never finally resolved in court, because the air permit was overturned first and the coal project did not proceed.