Judge to Dominion: You Can't Make Up Your Own Mercury Standards

Photo of Cale Jaffe (email, bio) who won a decision today over Dominion Resources, Inc.

Today, as even miners were protesting in WV about the sham that is the Department of Environmental Protection, activists against coal-fired electric plants learned of a victory in Virginia reversing a permit issued by the Virginia Air Board. After the Board's decision, Dominion officially broke ground near St. Paul, although a route of appeal existed which led to a lock down last June outside Dominion Resources offices in Richmond.

Judge Spencer issues her order overruling exception to mercury standards

In an order issued August 10 and released August 11, Richmond Circuit Court Judge Margaret Poles Spencer (bio) invalidated an "escape hatch" which would have permitted Dominion Resources to release mercury at its proposed coal-fired plant in Wise County at levels which violated Federal law.

The State Air Pollution Control Board MACT permit (Maximum Achievable Control Technology) set a mercury limit but added a condition 33 that if Dominion
reasonably demonstrates using operational and other related information collected for a period not shorter than the first 12 months of operation of all the equipment used to control mercury ... that the [set limits] are not achievable on a consistent basis under reasonably foreseeable conditions, then testing and evaluation shall be conducted to determine an appropriate adjusted maximum achievable annual emission limit ...

What the plaintiff's argued

Today's decision reflects the pleadings July 31, where Southern Environmental Law Center attorneys, argued on behalf of a coalition of environmental groups (petition filed August 22, 2008) that the exception meant that the permit authorized emission limitations to be set after completion of construction, and a relaxation of emission limitations "beyond what has been achieved in practice by the best controlled similar source."

Judge Spencer was pretty succinct:
The Court agrees.
She explained,
The Clean Air Act requires the MACT determination prior to construction of VCEC. 42 U.S.C. §74 12(g)(2)(B), CAA § I 12(g)(2)(B). The law does not allow "an after-the-fact analysis" of the emission limitation. See United States v. Ohio Edison Co ., 276 f.. Supp.2d 829, 864-865 (S.D. Ohio 2003). The establishment of a flexible "limitation" with an ongoing analysis, in Condition 33, is not a limitation determination prior to construction of a facility, as required by law. The Clean Air Act also requires that the mercury emission limit "not be less stringent than the emission control that is achieved in practice by the best controlled similar source." 42 U.S.C. §7412(d)(3), CAA §112(d)(3). This "best controlled similar source" mandate would be negated if Dominion demonstrates it could not achieve the mercury emission limit in the permit. This result, authorized by Condition 33, therefore violates the CAA. See Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855. 86l-62 (D.C. Cir. 2001) and Northeast Maryland Waste Disposal Authority v. EPA, 358 F.3d 936, 955 (D.C. Cir. 2004). Moreover. Condition 33 states that determination of an "appropriate adjusted maximum achievable annual emission limit" will be based, at least in part, on what is "achievable on a consistent basis under reasonable foreseeable conditions" by Dominion. The law requires the mercury emission limit "not be less stringent than the emission control that is achieved in practice by the best controlled similar source" regardless of the permittee's ability to achieve the set limit. Indeed, the limit must be set "irrespective of cost or achievability." Cement Kiln Recycling Coalition, 255 f .3d at 857-58 ; See Nc.Md. Waste Disposal Auth. v. EPA, 358 F.3d l936, 955 (D.C. Cir. 2004).

What Dominion claimed

Dominion tried to argue that Condition 33 stated a procedure, available under state law, for requesting an amendment of the MACT permit.

Judge Spencer wasn't buying that argument:
to the extent it states an existing post-construction procedure, it is at best, unnecessary. and at worst, violative of the Jaws addressing pre-construction mandates.
She also found that Condition 33 violated precedent in two other cases. It

has '"direct and appreciable legal consequences ." Golden and Zimmerman. L.LC v. Domenech 599 F. Supp. 2d 702, 71 0 (E.D. Va. 2009). It negates the requirement of all absolute MACT limit prior to construction. As noted above. Condition 33 allows a flexible "limitation" during the first 12 months of operation in that the permittee (Dominion) is allowed to demonstrate it cannot achieve the set limit. See Sierra Club v. EPA, 479 F.3d 875, 880 (D.C. Cir. 2007).