West Virginia Highlands Voice

By Cindy Rank

Like promotions for a similar coal waste burning power plant proposed for the 2,000 acre Tenmile strip mine site in Upshur County, public pronouncements about the proposed Western Greenbrier cogen plant in Rainelle, West Virginia promise benefits, but ignore the threats to water, air, communities in the county.

Eliminating acid producing gob piles is a noble goal, but the harmful impacts of the coal burning plant on the air and water are unacceptable tradeoffs. …. Furthermore, additional coal mining that may well be needed to supply better burning coal to supplement the waste coal will further harm the mountains, streams and communities in the area.

The financial viability of the over $215 million coal waste-fired power plant in Rainelle has always been questioned. Nonetheless Western Greenbrier Co-Generation, LLC received its air permit from the Division of Air Quality of the WV Department of Environmental Protection in April of 2006.

The regulations involved in such a perm it recognize the evolving nature of pollution control technology. …. What constitutes the “best available control technology” (BACT) at any given time can change rapidly. Consequently, a permittee has a limited to begin construction of a source under its existing Best Available Control Technology determination. If 18 months pass before construction commences, then the BACT determination must be reviewed.

18 months have passed since Division of Air Quality granted the permit and Western Greenbrier has not begun construction.

To ensure that the pollution control technology that a facility will use is up to date — i.e. the Best Available, the permitting agency has at least three mandatory duties under the law.

First, the agency must revoke or suspend the PSD permit for any major source for which construction has not commenced after 18 months. Second, at a minimum, the agency must request proof of the commencement of construction from the permit holder. Third, the agency must review and modify as appropriate the BACT determination for a facility for which construction has not commenced within 18 months of the issuance of the PSD permit.

Given the foregoing facts, lawyers representing the West Virginia Highlands Conservancy have issued a 30 Day Notice of Intent to seek a writ of mandamus and a declaratory judgment action against DEP Secretary Timmermeyer and DAQ Director Benedict to perform their mandatory duty under the law.

As of October 29, 2007, the Secretary and Director must (1) revoke or suspend Western Greenbrier Co-Generation’s PSD permit, (2) require Western Greenbrier Co-Generation to submit proof that is has commenced construction, and (3) review and modify as appropriate the outdated Best Available Control Technology determination for Western Greenbrier Co-Generation’s facility. (An extension of the 18 month period is not sufficient to fulfill this requirement.)