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EPA Must Reveal Papers on Luminant Oversight

SAN FRANCISCO (CN) - The government can settle claims that it failed to hand over documents related to its oversight of coal-fired power plants owned by Luminant Corp.

U.S. District Judge Maria-Elena James on Wednesday approved the settlement agreement to the lawsuit filed by Sierra Club and Environmental Integrity Project in February 2011.

The groups had filed a Freedom of Information Act request in 2010 with the Environmental Protection Agency (EPA), asking for information "relating to the operations of coal-fired power plants owned by the Luminant corporation, or any of its related affiliates ... and the EPA's regulatory oversight and interactions with the company," according to the original complaint.

Luminant, a Texas-based energy development company and subsidiary of Energy Future Holdings, describes itself on its website as the "largest competitive power generation business in Texas." The company plugs in more than 15,400 megawatts of energy from numerous sources into Texas's power grid, including wind power, coal and nuclear power, its website states.

Specifically, the groups asked to see information about Luminant's air emissions, the type of fuel used at its facilities, its various production processes, and any permits Luminant sought at the local, state and federal levels.

The groups claimed the documents would prove that Luminant was violating the Clean Air Act at one of its Texas plants and would enable them to pursue legal action against the company.

The EPA sent some of the requested documents in April 2010, but denied the groups access to roughly 350,000 pages of material because it claimed the documents contained Luminant's confidential business information.

On appeal, the EPA allegedly maintained that it was still in the process of reviewing the requested documents. The groups say the agency never pinned down an exact date as to when it intended to issue a final determination on the issue.

They say the EPA had no right to deny them access to this information because the agency failed to prove that any of the records were subject to exemptions under the Freedom of Information Act.

By failing to give the groups access to its records on Luminant, the groups claimed, the EPA is denying the public knowledge about Luminant's alleged Clean Air Act violations.

The parties conducted good-faith negotiations and reached a settlement, which Judge James signed Wednesday.

Among other things, the settlement voids the environmentalists' original request and allows them to submit "a new, narrowed request."

"The universe of documents plaintiffs would request will be certain documents pertaining to Luminant Generation Company, LLC ('Luminant') not to extend beyond 'those documents which originated from Luminant and were included in the federal package prepared by the EPA to the Department of Justice ('DOJ') related to the July 13, 2012 Luminant Notice and Finding of Violation," the settlement states.

Should the groups decide to submit a new records request, the settlement requires the EPA to "promptly" contact Luminant to confirm whether any of the documents included in the package are confidential. Luminant then has 15 working days to respond to the confirmation request, after which the EPA must "issue a final confidentiality determination" about the documents, according to the settlement.

As for the environmentalists, the settlement requires them to dismiss with prejudice all claims against the EPA and release it from all liability that did arise or could have risen from the action.

Attorneys' fees still remain unresolved because neither party could be deemed the "prevailing party" under the Freedom of Information Act.

The groups were represented by David Bahr of Eugene, Ore., and co-counsel Elena Saxonhouse with the Sierra Club's Environmental Law Program.

U.S. Attorneys Melinda Haag and Abraham Simmons represented the EPA.

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