A two-day fight for clean air

DNR board brawls over Southern Co. plants

For most of the day, Jan. 22, Allison Kelly felt like she'd get sick. As coordinator for the Georgia Environmental Enforcement Project, she'd done all her homework and was as prepared as one could get for a presentation to the Environmental Protection Committee of the Board of Natural Resources.

But with stakes this high — the potential cleanup of three of the continent's dirtiest power plants — the pressure was on.

The next two days would be an emotional roller coaster for Kelly and a half-dozen or so other activists, including Jennifer Giegerich with the Georgia Public Interest Research Group; Colleen Kiernan, clean energy advocate for the Sierra Club of Georgia; and Robert Ukeiley, an attorney with the Georgia Center for Law in the Public Interest. They're the ones who have been irritating the Southern Co. — to no avail — with one campaign or another for at least a year.

By the end of the second day, Jan. 23, Southern Co. had squirmed out of harm's way once again, the state Environmental Protection Division directly contradicted the U.S. Environmental Protection Agency in favor of Southern Co., and the DNR board ended up more divided than at any time in recent history.

On the surface, the fight was over reopening a bureaucratic process about Title V operating permits for power plants. The real fight was over the EPD's refusal to look into Clean Air Act violations at three Southern Co. power plants: Plant Bowen west of Cartersville, Plant Scherer near Macon, and Plant Kraft near Savannah.

According to federal documents, those three plants in 1999 emitted 246,280 tons of sulfur dioxide, the key ingredient of acid rain and particulate matter better known as soot.

The plants also emit more than 39 million tons of carbon dioxide, a greenhouse gas, and 92,040 tons of nitrogen dioxide, which forms ground-level ozone.

To say that amount of pollution is unhealthy is an understatement. According to the Boston-based Clean Air Task Force, power plant pollution causes 1,630 deaths in Georgia each year and 1,050 hospitalizations.

Seventeen groups and individuals sent EPD a formal petition in November asking the agency to look into whether the Southern Co. plants comply with federal Clean Air Act laws. And if the plants did not comply with the law (as the environmentalists, the federal EPA and the U.S. Justice Department argue) then EPD would be required to devise a schedule for Southern Co. to clean up the pollution.

At the DNR board meeting, Air Protection Branch Chief Ron Methier defended EPD and the Southern Co. plants, saying, "We issued the permits and continue to believe that the plants operate under compliance. We didn't discover any noncompliance in our review."

Of course, Methier's announcement and EPD's position flies in the face of one of the biggest enforcement actions the U.S. Environmental Protection Agency has ever taken against the utility.

In 1999, the U.S. Justice Department and the EPA filed lawsuits against eight power companies, including Southern Co., for violating the review program when those companies allegedly spent hundreds of millions of dollars to improve plant productivity without improving their pollution controls.

Methier told the meeting that the Justice Department lawsuit only accused Southern Co. of breaking the law. Since EPD declined to participate in the lawsuit and hasn't reviewed the EPA's findings, EPD has to wait for the Justice Department lawsuit to end before taking any action, Methier said.

Chris Hobson, vice president of environmental affairs for Georgia Power, Southern Co.'s subsidiary, then told the committee that the permits EPD issued his company couldn't be used as enforcement tools. He also said that Southern Co. operates the cleanest power plants in the country based on the amount of energy it produces — a statement that elicited murmurs and head shakes from environmentalists.

Echoing Methier, Hobson said, "Until the courts rule on this issue, there's no cause to reopen the permits."

Kelly took the podium next, saying that EPD Director Harold Reheis and Methier should hold public hearings to tell the people living near the three power plants "so that the state can explain exactly what its position is."

Next, in what board member Sally Bethea would later call the most dramatic event of the day, a parade of environmental, transit and social justice activists from across the state asked the board to hold public hearings for the communities in the shadows of the power plants.

The next hour was an intense one. Reheis refused to reopen the permitting process but consented to holding public hearings.

With no discussion, the seven-member committee voted 5-2 to squash the petition and the call for public hearings, even though Reheis supported the public meetings.

The activists and the two board members (Sally Bethea, executive director of the Upper Chattahoochee Riverkeeper, and Columbus attorney Jim Butler) who did vote for the public hearings were stunned.

Rarely has the state so blatantly sided with a company it regulates and, in the same motion, contradicted the EPA's official findings and shut the public out of an issue as contentious as Southern Co.'s dirty power plants.

Bethea immediately left the boardroom and was seen openly crying shortly after.

"When I get mad I cry, and I was extremely upset to the point of being at tears," Bethea says. "And the fact that five board members would vote against simply having public meetings to explain why the state was taking a certain position on a major polluting industry — I was just appalled, totally appalled. This is why a lot of groups such as mine ultimately have to resort to legal action because we've been unable to be taken seriously in other arenas."

Butler would tell the Macon Telegraph one of the most condemning statements he's made in the three years he has been on the DNR board: There's "nothing environmental about the (Environmental Protection Committee) except its name."

Kelly and the other activists were especially devastated. "This is unbelievable. Something has gone seriously awry when a public agency doesn't want input from the public," Kelly said. "EPD has decided that there is nothing wrong with the way that three of the dirtiest plants in the state are conducting business — despite the fact that the federal government has said they are breaking the law. And they won't even review the evidence? It just doesn't make sense."

At 6 p.m., Ukeiley, Giegerich, Kiernan, Kelly and Sierra Club lobbyist Neil Herring regrouped at the Euclid Avenue Yacht Club to commiserate and, hopefully, come up with a new strategy.

The DNR board meets two days in a row. The first day is for committee meetings. On the second day, the full board votes on all the proposals that make it out of the committees.

The enviros were searching for a way to convince the full board to reconsider. The next day, they'd learn that they wouldn't have to — somebody else beat them to it.

In a turn of events almost as shocking as the previous day, Reheis himself announced that EPD would host public meetings in all three cities. But he would not reopen the permits, thereby blocking the public input from being used in the decision-making process.

Right after Reheis' announcement, board chairman Jamie Reynolds apologized for voting against the motion to host the public hearings and said he wished he'd done things differently.

Naturally, since Reynolds reversed his decision so abruptly, there was speculation among other board members and in the environmental community that somebody with influence convinced Reynolds to change his mind. That somebody could have been Butler or Gov. Roy Barnes himself. But Reynolds says, "My decision was my decision," and he wants to hold the hearings "because those decisions affect the public."

It was Reynolds' last meeting as chairman of the Board of Natural Resources.

When asked when EPD would schedule the public hearings in Macon, Savannah and Cartersville, EPD spokesman Kevin Chambers says, "Be careful about using that word 'hearing.' These are meetings."

That distinction is important, and demonstrates just how far EPD is willing to go on this issue.

A hearing would mean that the public's input would actually mean something, that their testimony would be entered into the official record and reviewed by the EPD officials who can order Southern Co. to clean up its plants.

The meetings EPD is in the process of scheduling are merely public forums, sanctioned bitch sessions for people facing asthma attacks and hospitalization. It was a hollow victory, but a win nonetheless. Plus, the environmentalists also gave Reheis an open records request for all documents, correspondence, e-mails and phone logs relating to EPD's determination that the three coal-fired power plants were in compliance with the Clean Air Act.

"We have requested this documentation because we are concerned that EPD has made a determination that directly contradicts an official federal finding of violations at these plants," Kelly says. "EPA has compiled literally millions of pages of evidence describing these violations, and frankly, I suspect that EPD has not conducted a thorough and painstaking review."

By law, EPD has three business days to respond to the open records request.