Judge rules state board violated federal law in Wise County coal-fired plant case

In a momentous victory for clean energy advocates in Virginia, a Richmond Circuit Court judge ruled today that the State Air Pollution Control Board violated federal environmental law in permitting Dominion Power’s coal-fired power plant in Wise County in the southwest corner of the state.

Judge Margaret P. Spencer agreed with a coalition of environmental groups that the “escape hatch” in Dominion’s Maximum Achievable Control Technology (MACT) permit rendered that permit unlawful.

The Clean Air Act’s MACT program regulates emissions of hazardous air toxics, such as mercury, which can cause severe neurological deficits in infants, fetuses and young children. Judge Spencer ruled that the “mercury emission limit … must be set ‘irrespective of cost or achievability,’” and that the “escape hatch” was “violative of the laws addressing pre-construction mandates.” When Congress passed the Clean Air Act, it required that such permits be obtained before construction begins on a power plant, to ensure that it is designed and built in a way to protect the public health and welfare.

Dominion, which started construction a week after the Virginia air board approved the permits in June 2008, has said the plant is about 20 percent complete.

The judge’s ruling granted the coalition’s requested relief, which was to invalidate the MACT permit. In addition to the challenge on the mercury permit, the coalition also sued the air board in July 2008 for issuing a permit that failed to adequately limit emissions from the coal plant of approximately 5.4 million tons a year of carbon dioxide, small particles of soot, and other so-called “conventional” pollutants.

The court affirmed the “Prevention of Significant Deterioration” (“PSD”) permit, regulating conventional pollutants.

The Wise Energy for Virginia Coalition has raised a host of concerns about the Wise County coal plant over the last several years, including air pollution and the health of the local community, water quality, mountaintop removal coal mining, and the impacts of the plant’s carbon emissions on global warming. Some 42,500 Virginians from across the state signed petitions and sent letters and comments to state and company officials opposing the project.