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Lawsuit to claim Big Stone I owners 'skirted' federal law

WILLMAR -- A lawsuit to be filed by the Sierra Club of Minnesota will claim that the owners of the Big Stone I power plant "skirted'' federal law by making major improvements to the plant without upgrading pollution control equipment.

The Sierra Club is now notifying the three owners of Big Stone I -- Otter Tail Power, NorthWestern Energy and Montana-Dakota Utilities -- that it will file the lawsuit in federal court in South Dakota, Bruce Nilles, Sierra Club attorney, told Minnesota news reporters during a conference call Monday. Nilles said the lawsuit could prove to be a factor in the permitting process for the proposed Big Stone II power plant, slated to be built next to the Big Stone I plant near Big Stone City, S.D.

He said that the Environmental Protection Agency under President George W. Bush has allowed the owners of older, coal-fired plants to make maintenance improvements without triggering the requirement to install modern pollution control equipment.

The lawsuit will charge that the owners of Big Stone I used this to "skirt'' the law when they undertook three separate projects that represent what Nilles called a "major overhaul of the plant.'' The improvements required millions of dollars in investments, he said.

Cris Kling, media representative for Otter Tail Power, said the company had not yet seen the intent to file a lawsuit and could not comment on it. She said the power plant owners have not received any notice of violations from regulators, and that it is their business practice to abide by all regulations.

Kling also pointed out that the plans for Big Stone II include the installation of a wet scrubber system that will greatly reduce the emissions of regulated pollutants from both the Big Stone I and II facilities. The partners have also pledged to invest $150 million to offset some of the effects of the increased carbon dioxide emissions resulting from a new plant, she said.

Nilles charged that the modifications made to Big Stone I served to increase certain pollutants being emitted by the plant.

According to Nilles, the 1975-vintage plant underwent a major upgrade in 1995 when its source of fuel was changed from lignite coal to subbituminous Powder River Basin coal. The change in fuel resulted in an increase in the nitrous oxide emissions responsible for acid rain, as well as the fine particulate matter that is implicated in premature deaths, asthma and other respiratory ailments, he said.

The Big Stone I plant emitted more than 17,000 tons of nitrous oxides in 2004, ranking it as one of the nation's dirtiest coal plants in terms of the nitrous oxide emissions per megawatt of power produced, according to information provided by the Sierra Club.

Nilles charged that Big Stone I also underwent an upgrade in 2001 when an ethanol plant was developed at the plant site. The power plant increased its steam production -- and consequently its emissions -- to power the ethanol plant, according to Nilles.

He said the third major upgrade undertaken at the plant happened one year ago, when its owners obtained approval from the South Dakota Public Utilities Commission to improve the plant's 1974 turbine. The approval was made by the PUC prior to a federal court ruling this year. The federal court ruling went against what Nilles called the Bush administration's "loophole'' allowing power plant remodeling to occur without triggering pollution equipment upgrades.

Nilles said that the Big Stone I plant reduced its sulfur dioxide emissions by its switch to Powder River Basin coal in 1995, but it did not take the next step of adding a sulfur scrubbing system. Had it done so, it could have simultaneously reduced its sulfur and mercury emissions by 90 percent.

If Big Stone I were licensed in either Wisconsin or Illinois, it would be required to install equipment now in-use at other older, coal-fired plants that would reduce emissions of both pollutants by 90 percent.

Nilles said the difference would be striking. Together, Big Stone I and II are projected to emit 10,000 tons of nitrous oxide each year. The technology required in the other two states could reduce those emissions to 500 tons, according to Nilles.

The Sierra Club will be asking the court to order Big Stone I to install the modern pollution equipment. It is also asking that the owners be fined up to $27,500 per day for violations going back for five years.