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The agreement approved by District Judge Barbara Crabb was first proposed between the parties in June. It was criticized in August by Midwest Environmental Advocates of Madison as settling far short of the $230 million in fines Xcel might have been exposed to and failing to compensate the local community for the environmental damage caused by the incinerators, which produce electricity by burning processed municipal solid waste, waste wood and railroad ties.
Melissa Scanlan, MEA's executive director, said the inadequacies of the agreement should be a "wake-up call to local citizens" about the Bush Administration's lack of regard for protecting the environment. Scanlan urged individuals to do what they could to see that environmental laws are fully enforced and the penalties won be assigned to the communities where the harm has been done.
U.S. Sen. Russell Feingold, D-Wis., also had asked Crabb if the EPA could give the $500,000 to communities trying to manage their municipal waste programs.
Assistant U.S. Attorney Leslie Herje, who defended the agreement, said La Crosse already is benefiting from the installation of pollution control equipment designed to reduce air pollutants. And, to settle a similar suit brought by the state of Wisconsin, Xcel contributed $300,000 last year and secured matching funding for a program to divert hazardous materials from the household waste burned at French Island.
Xcel also agreed to pay nearly $168,000 in penalties to settle the suit.
Herje defended the $500,000 civil penalty, saying it would be difficult to prove MEA's assertion that Xcel violated the Clean Air Act 8,353 times between 1999 and 2003. MEA's claim is based on assumptions that certain violations occurred on a daily basis, Herje stated, which, would have been vigorously disputed by Xcel at trial.
Hjerle also said Xcel tried to come into compliance promptly, and was willing to resolve the allegations prior to the federal government filing a complaint.
In a memorandum filed Tuesday, Crabb stated she would not second-guess whether the government should have pursued Xcel for funding an environmental
project. Also, Crabb stated that although the discrepancy between a fine of $500,000 and $230 million is great, it doesn't represent a negotiating failure. Instead, the government gave up a chance at winning a large penalty for a commitment to correct past violations and prevent new ones, she stated.
"The important point of the consent decree ... is that the
La Crosse area will be the beneficiaries of air quality improvements sooner than they would have been had this case gone to trial," Crabb wrote.
Tina Ball, an Xcel environmental analyst, said the facility meets all air quality regulations without any government exceptions. It was the EPA's reclassifying the French Island facility from a small to a large municipal waste combustor that prompted the lawsuit and the need for additional pollution control equipment, paid for by La Crosse County, she said.
"We could never burn the 250 tons (of waste) a day the EPA thinks we can ... and, practically speaking, we would be considered a small municipal waste combustor but some pressure from outside environmental groups forced them to change their determination," Ball said Thursday.
The processed waste burned at French Island since 1987 would fill four medium-sized landfills, said Brian Elwood, Xcel spokesman, who called the agreement significant.
"It allows us and the EPA to settle all these issues and to continue to provide a renewable generation source for the La Crosse area. The plant is operating more efficiently than it ever has and helps the county and the surrounding area deal with a solid waste issue," he said.
