Posts Tagged ‘Wise County’

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

August 11, 2009

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).



July 31, 2007

Photo of flyrock damage accompanies Jerry’s (no last name listed) article on mountaintop removal at Kentuckians for the Commonwealth’s Canary Project. (email)

Appalachian NightmareFor Mary Ellen Kelley (c. 2007 by the author. All rights reserved.)

The dream comes over
and over, facts off, not how
it happened, when at

seventeen, I stood
on crutches, not able to
run, not just crippled

but doomed, transfixed by
some subliminal signal
understood too late:

a half-ton boulder
hurled towards our cabin’s kitchen.
Then, otherworldly,

the flyrock stopped short,
rived by a sharp stone standing
sentry in the yard.


Each time I dream, though,
the huge boulder plunders on.
How can I feel cold

while fear smolders? The
flyrock navigates a path,
careens through some hole,

comes to rest beside
a small bed. In a flashlight’s
beam, a toddler’s dead.

This makes no sense since
it was daytime, I survived,
I was seventeen.

For months I try to
cipher hole, light, bed. Nights I
lie awake—this lacks

logic, but I think
if I can avoid sleep I’ll
somehow save the child:

if I can keep out
dreams, I’ll invalidate fate,
somehow stop the stone.

I finally drag
to my doctor for drugged rest
then referral to

a shrink who tells me
I’m not at all crazy: real
life alters in dreams.

I can’t help wonder
why details would be so wrong–
why now, after years?

I stare up behind
our homes: A&G plans mines
stolen with faked maps.

I can’t help but think
the nightmare’s not my past; it’s
other folks’ future.


Author’s note: Since participating in the West Virginia Writers Mountaintop Removal Tour, readers of this blog know I’ve been doing a lot on that issue and the related one of liquid coal (a bad idea.) Bob Henry Baber and I have been in contact, and he’s informed me that a WV lowku should have anything but 17 syllables. (He sent me a book with one of his lowkus, which is actually longer than I remembered.)

Despite this, I’m still working on meta-lowkus which I guess qualify because they have 17 squared syllables: 5-7-5 stanzas of 5-7-5 syllable lines. My concept is to do a whole manuscript which will be a meta-meta lowku: 5 on this series about Jeremy Davidson’s slaughter in Wise County, VA. This first one is about my friend’s recurring nightmare that predicted Jeremy’s death, a nightmare everyone thought reflected PTSD from her own near- miss from a flyrock, Another will be about the mining that cause the death, one about the actual death, one about the town’s reaction and one set two or possibly three years later which would be now.

If I finish this, there will be seven on deep mining, including the Pittston strike, the Battle of Blair Mountain, and disasters including Sago and Buffalo Creek. The last section is five poems on Coal River Valley in WV, including the poem I already posted, which has now been published in the Summer 2007 issue of Appalachian Voices.

Comments welcomed!


Spent today at the New Media Center learning how to upload pictures and manipulate them in Adobe Photoshop. There’s now an online bio and picture (Greg Moneyhun took of my before we tore down the NRFP office) at Campaign Trail’s wiki.

Mary Hill and I met to go over poems at lunch.

Finished the above poem and then didn’t save it correctly, so ended up at Mike’s to rewrite it from my last saved draft.