California not safeguarding plants against lawsuits, Republicans say

House Republican leaders Wednesday called on California Gov. Gray Davis to explain his opposition to temporary legal protection from air pollution laws for plants running during electricity emergencies.

With California power plants under legal challenge for alleged Clean Air Act violations, Reps. Billy Tauzin, (R-La.), chairman of the House Energy and Commerce Committee, and Joe Barton (R-Tex.), chairman of the Subcommittee on Energy and Air Quality, sent a letter to Davis asking if he now favors creating in “federal law a limited, environmentally neutral safe harbor” for power plants that could be operating in violation of clean air laws.

They said subcommittee members repeatedly warned during hearings on the California crisis that these plants could be subject to legal challenge, even if ordered to operate by the state grid operator and even if written agreements permitting extended operations were in place between state air officials and the power plants.

Since that time, community groups have filed a lawsuit alleging three units at the Potrero plant violated the Clean Air Act (CAA). The city and county of San Francisco also filed formal notice it will pursue similar legal action, claiming the extended operation agreement between state air officials and the plants do not prevent the pursuit of all available remedies under state and federal law.

Subsequently, a unit of Mirant Corp., Atlanta, Ga., operator of the Potrero plant, sought clarification from the Federal Energy Regulatory Commission that it will not be required to operate the units, if ordered, because it could be subject to fines.

The pending litigation challenges the very agreements California previously claimed granted sufficient legal “flexibility” to keep these units running during times of emergency, Tauzin and Barton said.

With 31 units representing 1,430 Mw of peaking power subject to legal limits on their total hours of operation and new units being brought on line this summer without required pollution control equipment, and in “view of the fact we have moved from the word of legal theory into the world of legal fact,” it is time to reconsider the safe harbor question, they said.

Tauzin and Barton asked Davis to respond to the committee’s earlier request to identify power generation units in jeopardy of exceeding pollution limits and potentially subject to lawsuits. They also asked the governor if he will now support a safe harbor for plants subject to potential lawsuits but called upon to operate during emergencies, and, if so, asked for his support of the legislation.

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