Reid Gardner Appeal — Water Pollution Control Groundwater Permit NEV91022

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Reid Gardner Station is a 4 unit, 550 net MW coal fired power plant located on 480 acres in Moapa Valley, Nevada. The Muddy River crosses the site, as does Union Pacific Railroad's Las Vegas - Salt Lake City line. The plant is surrounded by BLM land to the north and south, Paiute agricultural land and residences on the west, and an inactive dairy farm on the east.

The first generating unit was placed in service in 1965 and the fourth unit came online in 1983. Coal is brought in by rail. The water supply is taken from the Muddy River, and from a well field near its’ headwaters, with 8300 acre feet per year used for steam generation, cooling, emission control scrubbers, bottom ash transport, and dust control.

A three-member panel of the State Environmental Commission (SEC) held an appeal hearing on the above referenced permit on November 4, 2010 at 9:30 a.m. in Reno, at the Nevada Department of Wildlife, Conference Room “A”, 1100 Valley Road. The November 4th hearing date was selected after consultation with the parties, and the parties were informed of the dates on September 22, 2010.

In brief, the SEC held the above referenced permit in place as valid when it denied the Sierra Club's appeal at the November 4th appeal hearing. Here is the written decision [4 Page PDF] as to the outcome of the appeal.

In addition, a written transcript of the hearing is posted here in the following formats [PDF] and or [txt]

The verbatim audio file is also available here

About the Appeal: On June 24, 2010 the Nevada Division of Environmental Protection (NDEP) issued groundwater permit NEV91022 to NV Energy for the Reid Gardner station. The Reid Gardner station is a coal fired power plant located in Moapa, Clark County, Nevada. The renewal modification permit authorized discharge of process and other wastewater to eight existing on-site double-lined evaporation ponds and eventually to nine yet-to-be constructed double-lined evaporation ponds in the “Mesa” area of the Reid Gardner station. The permit was subsequently appealed by Sierra Club on July 2, 2010.

  1. First, NDEP failed to provide Sierra Club with adequate notice of its right to appeal the final permit, even though its representatives provided significant comments during public participation.
  2. Second, the “no discharge” permit is insufficient to ensure against pollutant discharge because, for example, industry standards for HDPE dual-lined ponds allow for a certain amount of leakage as part of their design but there is no process or system required by the permit to prevent, detect, or remediate such leakage beyond the second liner.
  3. Third, the permit purports to shift responsibility for soil and groundwater contamination to the Bureau of Corrective Action in contravention of NRS 445A.465.
  4. Fourth, the permit does not protect water quality in the event of accelerated climate change. Although the Bureau of Water Pollution Control states that it lacks regulatory authority regarding climate change, state agencies retain inherent authority and responsibility to maintain the quality of state waters.
  5. Fifth, given the facility’s ongoing violations of previous permits and failure to remediate previous contamination, the permit renewal must be denied, or in the alternative, modified to require rigorous groundwater monitoring under and around the existing and proposed evaporation ponds, as well as to require a sufficient plan to remediate the inevitable contamination.

Procedural History: On July 12, 2010, permittee NV Energy petitioned the SEC for leave to intervene in the appeal, which the SEC granted on September 21, 2010. Upon receipt of NDEP’s request, the SEC ordered briefs and set forth a briefing schedule on September 22, 2010. On October 6, 2010, the Sierra Club filed a motion requesting subpoenas for certain documents, a continuance of the November 4 and 5 hearing, and a preliminary injunction to suspend the effectiveness of the permit and halt construction of new wastewater ponds. The SEC held a preliminary hearing on October 21, 2010, at which it denied the request for preliminary injunction and continuance of the November 4 and 5 hearing.

[ Read the hearing transcript - October 21st preliminary hearing: PDF] and or [txt],

Although the SEC did not issue subpoenas, it ordered that NDEP produce certain documents to Sierra Club before the November 4 and 5 hearing. The SEC also suspended the briefing schedule. As noted above, the appeal hearing was conducted on November 4th 2010 and the SEC ruled to uphold the Water Pollution Control Groundwater Permit NEV91022.

Update: Subsequently to the SEC's ruling, on January 3, 2011 the appellants filed for Judicial Review of the SEC's decision. After reviewing the SEC's administrative record on judicial review and after considering all court filings by the parties to the appeal, the First Judicial District Court of the State of Nevada (In and For Carson City) issued its decision on November 22, 2011. In brief the Court affirmed the SEC'S Decision upholding the above referenced permit.

Read/Download the Court's decision [24 Pages PDF - 3.2 MB]

Appeal Documents

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   John B. Walker