SWEPCO seeks to intervene in suit

The company responsible for the majority ownership of the John W. Turk, Jr., Power Plant under construction near Fulton has filed a petition in federal court to intervene in a civil lawsuit by the Sierra Club and others against the U.S. Corps of Engineers and its district engineer to prevent Sierra from stopping construction of the $1.6 billion power plant.

In a filing Feb. 12, AEP/Southwestern Electric Power Co., the majority owner of the project, argued that its interests in the Turk project are at the heart of the suit, and it should be allowed to speak for those interests; that those interests may be materially damaged by litigation of the suit and judgment against the Corps; that the Corps is not the party at material interest to represent SWEPCO's rights; and, in the alternative, SWEPCO has recourse to intervene under federal civil procedure.

“The Corps permit is a legally protected and concrete interest which authorizes SWEPCO to discharge dredged or fill material into the waters of the United States in order to construct portions of several ancillary components of the Turk Plant,” the filing states. “Persons holding such permits or similar rights are routinely allowed to intervene in actins challenging a government permit or other government action on which the rights of the prospective intervenor depend...”

The company cited an affidavit by SWEPCO President/COO Paul Chodak, III, which put the point directly in context for its case to intervene.

“SWEPCO's contractors recently began construction activities authorized by the Corps permit,” Chodak states. “That work must proceed without interruption in order to complee construction of the plant by the scheduled October 2012 commercial operations date. The ancillary facilities which will be built, in part, on or across discharges of dredged or fill material authorized by the Coprs permit are essential to the opreation of the plant because, among other things, they will convey the necessary fuel and water.”

Chodak said delay or stoppage of the work would cost SWEPCO millions in additional expense and “impair SWEPCO's abilit to meet the long term baseload capacity needs of its customers.”

Sierra, the National Audubon Society, Arkansas Audbon, and two individuals sued the Corps and its district engineer, Colonel Jeffrey R. Eckstein earlier this month to enjoin further construction at the Fulton plant site pending the resolution of a complaint regarding the Corps' awarding of a permit concerning wetlands mitigation at the plant site and adjunct locations.

“The Permit authorizes the filling of approximately 8.07 acres of jurisdictional wetlands, including 2.47 acres of after-the-fact wetlands impacts, and approximately 8,150 linear feet of stream impacts, including after-the-fact temporary impacts to an additional 645 linear feet of stream,” the Sierra suit claims.

That filing accuses the Corps of not properly applying the National Environmental Policy Act, Environemental Protection Agency regulations, and the Federal Clean Water Act in order to approve the general permit for treatment of wetlands, and consider the specific instances cited as special circumstances.

“In approving the PEDD (Permit Evaluation and Decision Document) and issuance of the Permit, COE failed to comply with the procedures for gathering information, public participation, and decision-making set forth in NEPA and in the CEQ, EPA, and EPA regulations implementing NEPA's mandates, as more fully described herein,” the Sierra suit states.

Those claims specifically argue that the Corps failed to provide for sufficient and substantive public comment and notice requirements, and seeks to declare the Corp permit void, enjoin both the Corps and Eckstein from implementing or allowing SWEPCO to continue wetlands mitigation work, revoke permits for such work, require a comprehensive evaluation of the NEPA under the Clean Water Act, rewrite the environmental impact statement for the permit, and stop all construction at the Turk site pending a judgment.