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Va. Appeals Court Affirms Dominion Coal Plant Air Permit

The Virginia Court of Appeals on Tuesday unanimously approved an air emissions permit granted to Dominion Virginia Power’s 585-MW Virginia City Hybrid Energy Center, a coal-fired plant that is 63% complete.

The decision rejects a final challenge to the facility by a coalition of environmental groups, including Appalachian Voices, Chesapeake Climate Change Action Network, Sierra Club, and Southern Appalachian Mountain Stewards. The coalition had appealed a circuit court decision that upheld the state Air Pollution Control Board’s issuance of a Prevention of Significant Deterioration Program (PSD) permit to build the Wise County plant.

Citing the U.S. Supreme Court’s 2007 decision in Massachusetts v. EPA, the coalition contended that carbon dioxide was a pollutant that was “subject to regulation” by the board and under the federal clean air act. It also argued that the board erred by not completing a Best Available Control Technology (BACT) analysis to establish enforceable emission limits for CO2 in the PSD permit. 

But  in an opinion issued by Judge Jean Harrison Clements for the three-judge panel, the court said that “the term ‘subject to regulation’ is not defined in the [Clean Air Act (CAA)].”

“Indeed, the position of [Department of Environmental Quality (DEQ)] and the Board is that there is no regulatory framework for CO2 under the CAA and there are no federal or state standards by which DEQ can evaluate impacts and impose standards for CO2,” the judge wrote. “Therefore, we disagree with the Coalition that the inclusion of these provisions in the permit rendered CO2‘subject to regulation’ under the CAA.”

Judge Harrison also said that because no provision of the CAA or Virginia law controls or limits CO2 emissions, CO2 was not a pollutant “subject to regulation.” “Therefore, CO2 is not a ‘regulated NSR pollutant’ under the PSD permitting program, and the Board was not required to complete a BACT analysis to establish permit limits for CO2 emissions at the time it issued the VCHEC PSD permit,” she wrote.

The plant, which has all its permits, will be located on the Virginia City reclaimed surface coal mine site and use Virginia coal and waste coal to fuel a circulating fluidized-bed boiler. It is reportedly on track to be operational in 2012.

Last August, Richmond Circuit Judge Margaret P. Spencer partially revoked the air permit granted in June 2008 to the plant by the Air Pollution Control Board, saying said that the board should have set a stricter limit for the plant’s mercury emissions. On Sept. 2, 2009, the Virginia DEQ approved an amended air permit for the plant, including what could be the most stringent mercury emissions limits for any coal plant in the U.S.

The mercury limit was originally set at 72 pounds of mercury emissions per year, but the limit in the new permit is just 4.5 pounds per year—a 94% reduction. The new permit also removed a provision that would have allowed the mercury limit to be loosened if the plant had trouble meeting it.

In another legal challenge last year, the Virginia Supreme Court rejected a claim that a state law authorizing the power plant violates the constitution’s Commerce Clause because it favors the use of Virginia coal at the expense of out-of-state coal.

Sources: The Virginia Court of Appeals, POWERnews

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