Environmental coalition exposes illegal mercury limits in DEQ permit for Wise County coal plant

A preliminary mercury pollution permit proposed for Dominion Power's coal-fired power plant in Wise County contains a built-in “out clause,” drafted by the company, that would allow it to routinely exceed limits on emissions of the heavy metal – a neurotoxin linked to developmental damage in fetuses, children and adults. The draft permit is therefore illegal, according to the Southern Environmental Law Center in papers filed with the state Department of Environmental Quality.

In a one-two legal punch to Dominion on Friday, the nonprofit law center also filed an appeal to the Supreme Court of Virginia, challenging the constitutionality of the law upon which the State Corporation Commission based its decision in March giving Dominion permission to build the $1.8 billion plant.

Documents obtained by SELC under the Freedom of Information Act show that DEQ officials were pressured to hastily issue Dominion's draft mercury permit within a few weeks after a federal court ruled that power plants must comply with the strongest controls under the Clean Air Act for mercury emissions. By comparison, an earlier draft air permit for the plant took a year and a half to complete.

“The federal courts clearly said it's time to get serious about cutting this extremely toxic pollutant, yet Dominion is trying to push through this project without regard for science or the law,” said Cale Jaffe, SELC Staff Attorney. This is the first mercury-specific permit being considered nationwide following the February 8 ruling (in a separate case) from the U.S. Court of Appeals for the D.C. Circuit that struck down the Bush Administration's mercury rule as illegal.

DEQ previously issued a draft air permit for the Wise County plant for all regulated pollutants allowing annual emissions of 72 pounds of mercury a year, which was designed to comply with the now-voided Bush rule. At that rate, the Wise County plant would emit more mercury than the Mirant Potomac River Generating Station, built 60 years ago. After the court ruling, DEQ drafted a permit that appeared to drop the limit to 49.5 pounds a year. But because of language that DEQ officials internally referred to as the “out clause,” Dominion would be allowed to exceed the limit if the company determines for itself that the limit is technically unachievable.

Analysis by the environmental groups further shows that even at 49.5 pounds of mercury per year, the Wise County plant would still put more mercury in the air than almost all new coal-fired power plants. For example, the 585-megawatt plant would emit four times more mercury than Dominion's own 850-megawatt Clover plant, built in the mid-1990s, and nearly 50 times more than a similarly designed Pennsylvania plant that came online in 2004 and burns waste coal.

Documents obtained by SELC show that Dominion, after submitting its application, admitted to DEQ by email that “the system [for controlling mercury emissions] has not yet been designed.” But DEQ staff were not given the time to get further information. After reviewing the application, DEQ staff looked at a 2005 analysis of mercury emissions by the U.S. Environmental Protection Agency, criticized it, but then commented, “no worse than how we came up with our [49.5 pound] number  :- )”.

“The law requires that this plant be state-of-the-art, but the limits set in the permit barely meet the standards of the Eisenhower era-and Dominion won't even give guarantees about that,” said Sarah Rispin, SELC Staff Attorney.

Rispin and Jaffe submitted a 58-page critique of the draft mercury permit on behalf of six environmental groups to the DEQ late Friday, the close of the agency's public comment period. The state Air Pollution Control Board is scheduled to meet in late June in St. Paul, Wise County, to consider both draft air pollution permits for the coal plant.

Also on Friday, SELC filed a Notice of Appeal with the Supreme Court of Virginia, challenging the SCC's ruling in March that grants Dominion a certificate of need to build the plant. In the appeal, SELC plans to argue that the statute upon which the SCC relied violates the Commerce Clause of the U.S. Constitution. Accordingly, the SCC ruling is void and should be overturned. SELC is representing Appalachian Voices, Southern Appalachian Mountain Stewards, Sierra Club and the Chesapeake Climate Action Network.