Appeal of Longview Air Quality Permit
Today, March 23, 2007, a Complaint was filed in the U.S. District Court in Clarksburg laying out the fact that the Air Quality Permit R14-0024 actually expired on September 2, 2004 and that the actions of Longview attempting to renew this permit since that time have not been valid or legal. This Appeal No. 1:07 cv 41 is shown below and is attached as a Microsoft Word document. This Appeal will be the subject of a Hearing before Judge Irene Keeley in Clarksburg within a few weeks.
The attached Appeal was submitted by Jarrett F. Jamison III, the Fort Martin Community Association, and the Forks of Cheat Forest Property Owners Association. These same Plaintiffs filed an Appeal with regard to this same Air Quality Permit in 2004, viz. Appeal No. 04-02-AQB, before the WV Air Quality Board. That Appeal contested the procedures used to prepare the Permit as issued on March 2, 2004, especially with regard to the lost transcript of a Public Hearing held in Morgantown. That Appeal was subsequently turned down by the Air Quality Board, by the Kanawha County Circuit Court, and by the WV Supreme Court of Appeals.
Mr. Jarrett F. Jamison III is a resident of the Fort Martin Community and a professional electrician with experience in power plant construction. The Fort Martin Community Association includes families of the area within which the proposed Longview power plant is to be constructed, where already the noise and adverse safety conditions from truck traffic is severe, and where the levels of pollutants from the existing Ft. Martin power plant are the greatest. The Forks of Cheat Forest became an Intervenor in these proceedings because (a) an obligation exists to preserve and protect the Nature Preserve that surrounds the properties, and (b) the Forks of Cheat Forest is directly downwind of the Ft. Martin power plant as well as the proposed Longview power plant, given the direction of the prevailing winds, and subject to the air pollutant effects on the health of our residents including children and senior citizens. The aesthetic effects of steam plumes from the evaporation of approximately 4,000 gallons per minute of water in up to 20 cooling towers of the Longview plant has also been of concern, given its location on the ridge overlooking the Monongahela River valley. It has also been pointed out to the WV Division of Air Quality that the 14,000 tons per day of carbon dioxide that will issue from the Longview plant will contribute greatly to the greenhouse gas inventory of our atmosphere.
Note-- A similar Complaint was filed earlier this year and was the subject of a Hearing before Judge Keeley on February 23rd. This earlier Complaint was subsequently modified, at the suggestion of the Judge, and then it was withdrawn so that it could be rewritten in order to frame the legal argument more accurately. The legal work is being done by the lawyer Phillip D. Gaujot, with advice and consultation provided by a legal entity that specializes in the U. S. Clean Air Act. These legal services are being provided pro bono (at no charge), in the public interest. A filing fee of $350 is being shared among the Plaintiffs. If any questions arise, please send an email to duane330@aol.com.
Note -- Longview has proposed to increase the power plant capacity from 600 to 695 MW and increase the water usage to 5,600 gallons per minute via a "waiver" from the WV Public Service Commission, without presenting full information as to the increased environmental impacts to the PSC or the public. This "waiver" has been appealed to the WV Supreme Court of Appeals by Barbara Born, et.al., a group that includes a number of residents of Monongalia County plus three non-profit organizations (the Cheat Lake Environment And Recreation Association [CLEAR], the Citizens for Alternatives to Longview [CALP], and the Citizens for Responsible Development). The initial Hearing on this waiver appeal is set for April 18th in Charleston.
Note -- The NPDES ("storm water and waste water") permit for the Longview plant was granted by the WV Department of Environmental Quality on October 16, 2006. This Permit WV0116238 was appealed by the Fort Martin Community Association on November 14, 2006, as Appeal No. 06-31-EQB before the WV Environmental Quality Board (EQB). Two days of Hearings have been held in Charleston. Initial Briefs are due from the parties to this Appeal on or near April 30th, and then Rebuttal Briefs will be filed on or near May 15th. The EQB will then render a decision. It is claimed that Longview did not provide accurate and complete information in the permit application and that the WV-DEP did not follow systematic or proper procedures in granting the permit; and, that the permit violates the public interest and needs to be voided.
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IN THE UNITED STATES DISTRICT
COURT
FOR THE NORTHERN DISTRICT OF WEST
VIRGINIA
(CLARKSBURG)
Jarrett F. Jamison
III,
)
Fort Martin Community
Association and
)
Forks of Cheat Forest
Property
)
Owners Association,
)
)
Plaintiffs,
)
)
)
)
Civil Action No. 1:07 cv
41
vs.
)
)
)
)
Longview Power, LLC,
)
Defendant.
)
)
)
)
)
)
COMPLAINT
________________________________________________________________________
Plaintiffs, Jarrett F. Jamison III, Fort Martin Community Association and Forks of
Cheat Forest Property Owners Association, allege as follows:
INTRODUCTION
1. Plaintiffs, Jarrett F. Jamison III, Fort Martin Community Association and Forks of Cheat Forest Property Owners Association, bring this citizen suit against Defendant Longview Power, LLC, a Delaware limited liability company; for declaratory and injunctive relief and the imposition of civil penalties under the Federal Clean Air Act (“the Act”), 42 U.S.C. §§7401-7671(q). This action seeks an order enjoining Defendant from constructing or proposing to construct a merchant power plant (“the Power Plant”) near Maidsville, in Cass District, Monongalia County, West Virginia without a valid Prevention of Significant Deterioration (“PSD”) permit.
JURISDICTION AND VENUE
2. This citizen suit is brought pursuant to 42 U.S.C. §7604(a)(3). As such, this Court has subject matter jurisdiction of this action pursuant to 42 U.S.C. §7604(a) and 28 U.S.C. §§ 1331 and 1355.
3. Venue is proper in this District pursuant to 42 U.S.C. §7904(c)(1) because the Power Plant is located in this District.
PARTIES
4. Plaintiff Jarrett F. Jamison III, is a resident of Cass District, Monongalia County, West Virginia. Fort Martin Community Association (hereinafter FMCA) and Forks of Cheat Forest Property Owners Association (hereinafter FOCF) are non-profit organizations consisting of residents of Monongalia County, West Virginia who live in close proximity to the proposed Power Plant. The associations were formed, in part, to preserve, protect, and enhance the natural environment. Plaintiff Jamison and the members of Plaintiff associations, own real estate, work, recreate, grow crops and study in and near areas affected by the proposed Power Plant. The air quality of these areas affects the recreational, aesthetic, and economic interests of Plaintiffs. The interests of Plaintiffs will be adversely affected by pollution from the Power Plant because the level of pollutants to be discharged from the proposed Power Plant will degrade air quality, injuring and/or damaging wildlife, vegetation, and real estate in areas used by Plaintiffs, and harm the aesthetic enjoyment of these areas by Plaintiffs. Construction of the proposed Power Plant without a valid PSD permit will also adversely affect the health of Plaintiffs. An order of this Court directing Defendant to procure a valid PSD permit prior to constructing the Power Plant will redress the injuries to Plaintiffs because of the recent significant advances in pollution control technologies that will be required under a new permit.
5. Defendant Longview Power, LLC is a Delaware for-profit limited liability company with its principal place of business located at 1040 Great Plains Avenue, Needham, Massachusetts. Longview was incorporated and became qualified to perform business in West Virginia on May 24, 2001.
CLAIM FOR
RELIEF
DEFENDANT DOES NOT CURRENTLY HAVE A
REQUIRED
CONSTRUCTION PERMIT UNDER THE CLEAN AIR
ACT
6. Plaintiffs, re-allege paragraphs 1 through 5 above as if fully alleged herein.
7.
The Clean Air Act (“CAA” or “the Act”) is designed to protect and enhance
the quality of the nation’s air. 42
U.S.C. § 7401(b)(1). One of the
programs that the CAA established to achieve that goal is the Prevention of
Significant Deterioration (“PSD”) Program.
See 42 U.S.C. § 7401, et
al.
8. In general, the PSD program imposes limitations on the ambient air quality impact of new major stationary sources and requires such facilities to install the “best available control technology” (“BACT”) for each pollutant subject to regulation under the Act that is emitted from, or that results from, such facilities. 42 U.S.C. § 7475(a)(4).
9. Under the PSD program, “no major emitting facility on which construction is commenced after August 7, 1977, may be constructed in any area to which [the PSD program] applies unless a permit has been issued for such proposed facility in accordance with this part setting forth emission limitations for such facility which conform to the requirements of this part [.]” 42 U.S.C. § 7475(a).
10. The U.S. EPA has delegated authority to the State of West Virginia to carry out the PSD program in that state. The West Virginia Department of Environmental Protection (DEP) is the agency responsible for administering the PSD program in West Virginia. DEP’s PSD regulations, which have been approved by the EPA and which are in effect as federal law in West Virginia’s State Implementation Plan under 42 U.S.C. § 7410, are contained in 47 CSR Part 14.
11. Under 47 CSR 14-7.1., no person may construct a major stationary source without a permit issued by DEP under that section. Under 47 CSR 14-8.2., the permitted source must install BACT to control regulated pollutants from the source.
12. The Power Plant is a major stationary source as defined in 47 CSR 14-2.43.
13. The Director of DAQ issued a PSD construction permit to Defendant Longview Power, LLC to Construct an Electric Power Generation Facility on March 2, 2004.
14. On August 4, 2004, Defendant Longview Power, LLC entered into a settlement agreement with certain parties who had appealed the granting of the permit to the West Virginia Air Quality Board. On the same day the settlement agreement was incorporated into a Consent Order of the Air Quality Board signed by the Chairman of the Board. The Consent Order added restrictions to the original permit. The Consent Order did not change the effective date of the permit entered on March 2, 2004.
15. Subsequently, the terms of the settlement agreement between Longview Power, LLC and the certain parties who had appealed the original granting of the permit, where incorporated into a revised permit, however, the “effective date” was never changed from March 2, 2004.
16. By letter dated September 2, 2005, to counsel for the Defendant Longview Power, LLC, the Director of DAQ opined that the effective date of the “revised permit is August 4, 2004” but took no action to amend the permit.
17. Under 47 CSR 14-8.4., DEP’s BACT determination for a PSD permit must occur no later than eighteen months prior to construction of the project. Thus, 18 months after the permit is issued, the BACT determination expires, and the permit is no longer valid. In addition, 45 CSR 14-19.2., provides as follows:
The Secretary shall suspend or revoke a permit if, after eighteen (18) months from the date of issuance the holder of the permit cannot provide the Secretary, at the Secretary’s request, with written proof of a good faith effort that such construction, modification, or relocation has commenced and remains ongoing. Such proof shall be provided not later than thirty (30) days after the Secretary’s request.
18. By letter dated January 5, 2006, Mr. Robert Place of Longview Power, LLC requested “…an extension of the Permit to allow time for the issuance of the remaining pre-construction permits needed for the Project.”
19. By letter dated February 1, 2006, to Mr. Place, the Director of DAQ summarily granted a “…twelve-month extension of the deadline to commence construction authorized in the permit…” The letter did not give a specific time frame for the extension and did not cite any authority to support such an extension.
20. West Virginia’s PSD regulations in 47 CSR Part 14, do not authorize DEP to extend the 18-month commencement period.
21. Defendant Longview Power, LLC, has entered into agreements with other companies for equipment and/or construction services for the proposed Power Plant, the details of which are unknown to the Plaintiffs.
22. The Director of DAQ refuses to suspend or revoke the permit granted to Longview Power, LLC granted on March 2, 2004.
23. Defendant Longview Power currently does not have a valid PSD construction permit for the Power Plant under the Clean Air Act, the West Virginia State Implementation Plan, and 47 CSR Part 14.
24.
Any actions by Defendant to construct the Power Plant without a valid PSD
construction permit violate the Clean Air Act and are subject to an injunction
and the imposition of civil penalties under 42 U.S.C. §§ 7604(a) and
7413(b).
25. The violations herein are subject to enforcement by citizens. 42 U.S.C. § 7604(a),(f).
WHEREFORE, Plaintiffs pray for the following relief:
A. A temporary and permanent injunction requiring Defendant to stop actual construction activities of the Power Plant until Defendant has a valid PSD permit;
B. A declaration that Defendant’s construction activities regarding the Power Plant after September 2, 2005 are illegal;
C. An order requiring Defendant to pay a fine for each day that Defendant constructs or propose to construct the Power Plant without a valid PSD permit. See 42 U.S.C. §7604(a) and § 7413(b);
D. An order requiring Defendant to pay the costs of litigation, including reasonable attorneys’ fees and expert witness fees; and
E. All other relief the Court deems just and proper.
Jarrett F. Jamison III
Fort Martin Community Association
Forks of Cheat Forest Property Owners Association
/ s / Phillip D. Gaujot
__________________________________________
Phillip D. Gaujot (SB#1355)
Counsel for Plaintiffs
445 Lakeview Drive
Morgantown, WV 26508
(304) 594-3904
.