IN THE CIRCUIT COURT OF KANAWHA COUNTY,WEST VIRGINIA
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OHIO VALLEY JOBS ALLIANCE,

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CIVIL ACTION NO. 16-AA-67
Judge Joanna I. Tabit

WILLIAM F. DURHAM,Director,
Division of Air Quality, West Virginia
Department of Environmental Protection,

(On Appeal From West Virginia Air
Quality Board Case No. 15-01-AQB)

Petitioner,

Respondent,

MOUNDSVILLE POWER,LLC,
Intervenor.

FINDINGS OF FACT,CONCLUSIONS OF LAW,AND
FINAL ORDER
The parties came before the Court for oral argument on October 23, 2017,
upon the petition for appeal filed by the petitioner, Ohio Valley Jobs Alliance, from the Final
Order entered by the West Virginia Air Quality Board on July 18, 2016, in Ohio Valley Jobs
Alliance v. Durham, et al., West Virginia Air Quality Board Case No. 15-01-AQB. Petitioner
appeared by Kelby Thomas Gray, Esq., and Dinsmore & Shohl LLP; Respondent appeared by
Jason Wandling, Esq., West Virginia Department of Environmental Protection, Office of Legal
Services; and Intervenor appeared by David L. Yaussy, Esq. and Spilman Thomas & Battle,
PLLC.
Following oral argument, the Court requested that counsel submit revised proposed
findings of fact, conclusions of law, and final orders for the Court's consideration. Having
received the same, the Court hereby finds and concludes as follows:

 L
1.

PROCEEDINGS BELOW

Moundsville Power, LLC ("Moundsville Power"), proposed constructing a natural

gas combined cycle power plant ("Plant") near Moundsville, West Virginia. Moundsville Power
submitted its application to construct the Plant to the West Virginia Department of
Environmental Protection, Division of Air Quality ("DAQ") on October 7, 2013, and after the
appropriate notice and comment periods established in 45 CSR 13 and 45 CSR 14, Permit No.
R14-0030 ("Peirnit") was issued on November 21, 2014. 12.7.2015 Certified File (hereinafter,
"Certified File"), p. 39.

To address various proposed operational and process changes,

Moundsville Power submitted an application for the Administrative Update ("AU") on April 22,
2015. Id. at 142.
2.

On June 8, 2015, the Ohio Valley Jobs Alliance ("OVJA") commented on

Moundsville Power's AU application. Id. at 122-31.1

On June 19, 2015, the OVJA filed

supplemental comments. Certified File, pp. 114-20. The DAQ responded to both sets of
comments on August 13, 2015. Id. at 31-38. None of the OVJA's comments required additional
information from Moundsville Power or resulted in changes to the AU. On August 14, 2015, the
DAQ issued the AU (Permit No. R14-0030A) to Moundsville Power. Id. at 1.
3.

On November 18, 2015, the OVJA filed a Notice of Appeal with the West

Virginia Air Quality Board ("Board") challenging certain terms and conditions of the AU issued
by the DAQ. Moundsville Power intervened on November 29, 2015. Evidentiary hearings were
held on February 23 and 24, 2016, and multiple issues were presented to the Board. A Final
Order was issued on July 18, 2016, modifying one Permit term and rejecting all other aspects of
the OVJA's appeal.
1 The Secretary and Treasurer of the OVJA expressed little knowledge of what was in the comments filed by their
attorneys, and no knowledge of who was paying for their services. Transcript of 2.23.2016 Evidentiary Hearing
(hereinafter,"Vol. 1"), pp. 57-58, 154-55.

2

 4.

The OVJA appealed the decision of the Board to this Court on August 19, 2016.

The sole issue on appeal is whether the changes to the Permit should have been addressed
through a modification of the Permit rather than an AU.
II.
5.

RIGHT OF APPEAL AND STANDARD OF REVIEW

The OVJA brings this appeal in accordance with W. Va. Code § 22B-1-9(a),

which provides that:
Any person or a chief or the director, as the case may be, adversely affected by an
order made and entered by a board after an appeal hearing, held in accordance
with the provisions of this chapter, is entitled to judicial review thereof. All of the
provisions of section four, article five, chapter twenty-nine-a of this code apply to
and govern the review with like effect as if the provisions of said section four
were set forth in extenso in this section, with the modifications or exceptions set
forth in this chapter.
6.

The standard of review that is applied is found in W. Va. Code § 29A-5-4(g),

which states that:
The court may affirm the order or decision of the agency or remand the case for
further proceedings. It shall reverse, vacate or modify the order or decision of the
agency if the substantial rights of the petitioner or petitioners have been
prejudiced because the administrative findings, inferences, conclusions, decision
or order are: (1)In violation of constitutional or statutory provisions; or (2) In
excess of the statutory authority or jurisdiction of the agency; or (3) Made upon
unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong
in view of the reliable, probative and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
7.

While the OVJA has a statutory right of appeal to this Court, to prevail it must

first demonstrate that it has a substantial right at stake which has been prejudiced by one of the
six errors enumerated in W Va. Code § 29A-5-4(g).
III.
8.

FINDINGS OF FACT

The appellant, OVJA, is a group of individuals attempting to save coal mining

jobs. Vol. 1, pp. 137, 141, 148-51. The OVJA is actively opposing the Plant because its

3

 members believe it will reduce coal mining employment. Id. at 148-54. It did not officially
incorporate until May 2015, and it has held only one meeting. Id. at 142, 156. Mr. Thomas, who
testified for the OVJA, could not identify any human health or environmental concerns about
emissions from the Plant. Id. at 151. It is reasonable to conclude that the OVJA is being funded
by someone with ties to the coal industry, as Mr. Thomas, Secretary and Treasurer of the OVJA,
is unsure who hired or pays for the attorneys who represented the OVJA at the hearing (Id. at
154-55), and the OVJA members did not participate in preparation of the draft Permit comments
that were offered on the group's behalf. Id. at 157-58.
9.

The respondent, DAQ,issues air pollution control permits to stationary sources of

air pollution in West Virginia, and issued the AU to Moundsville Power that is the subject of the
appeal.
10.

The intervenor, Moundsville Power, is a limited liability company licensed to do

business in West Virginia and has proposed construction of the Plant that was issued the Peinit
and the AU.
11.

The changes proposed by Moundsville Power in its AU would increase potential

emissions of greenhouse gases("GHGs")by over 75,000 tons per year ("tpy").
12.

At the request of the DAQ, and as a condition of the AU, Moundsville Power re-

evaluated Best Available Control Technology("BACT"), reviewed and updated its air modeling,
and confirmed that after issuance of the AU, the Plant would be in compliance with West
Virginia's air pollution control regulations.
13.

New Source Performance Standard ("NSPS") 40 CSR 60, Subpart TTTT

("Subpart TTTT") became effective October 23, 2015, several months after the issuance of the
AU. It will require Moundsville Power to meet an emission standard of 1,000 lbs/MWh of

4

 carbon dioxide (`CO2"). Transcript of 2.24.2016 Evidentiary Hearing (hereinafter, "Vol. 2"),
p. 124. The Plant's emissions of CO2 will be far below that, approximately 792 lbs/MWh. Id.
at 65.
IV.

CONCLUSIONS OF LAW

A.

The OVJA Has Not Demonstrated That Its Appeal Is Intended to Protect a
Substantial Right.

14.

The OVJA has not demonstrated that it is defending a substantial right in this

appeal. Air pollution control permits are required of stationary sources in order to protect the
environment and human health. The OVJA has, through its officers, admitted that it has taken
this appeal solely to try to protect the coal industry, not to protect human health or the
environment. Vol. 1, pp. 148-51, 160. The OVJA was formed and operates for the sole purpose
of advancing the interests of the coal industry. Supporting the coal industry may be a legitimate
endeavor, but the right to mine coal or to construct, own, or operate coal burning power plants is
not a substantial right in the context of this proceeding.
15.

Even if protection of the coal industry and mining employment were a substantial

right, the OVJA has not demonstrated how that right is prejudiced by issuance of the AU.
Issuance of the AU does not preclude coal mining or use of coal as a fuel for electric generation.
The AU, and the underlying Permit, ensure that the Plant will be built in accordance with state
and federal laws for the protection of human health and the environment. Issuance of the AU is
irrelevant to economic or public policy decisions regarding the types of fuels used for generating
electricity.
16.

The OVJA has not identified any substantial right to pursue an appeal. Without

demonstrating that the OVJA has a substantial right that was prejudiced by the AU, the OVJA

5

 cannot prevail in this appeal, regardless of whether there were errors committed by the Board or
the DAQ in issuing or affirming the AU.
B.

The Increase of GHGs Proposed in the AU Did Not Trigger Minor Source
Permit Modification.

17.

Even if the OVJA has a substantial right to bring this appeal, it has failed to

demonstrate that there were any errors committed by the DAQ in issuing the AU or by the Board
in upholding the AU.
18.

While the Permit was issued in accordance with 45 CSR 14, subsequent changes

to the Permit are approved through the procedures of 45 CSR 13. 45 CSR 13-4; 45 CSR 13-5. If
the changes result in a major modification, the requirements of45 CSR 14 must also be met.
19.

Permits must be modified in accordance with 45 CSR 13 if emissions of a

regulated air pollutant will exceed threshold levels. See, e.g., 45 CSR 13-2.20 and 2.17. The
OVJA contends that the AU should have been processed as a 45 CSR 13 modification because
GHGs were regulated pollutants that exceed these threshold limits of 6 pounds per hour
("lbs/hr"), 10 tpy, or more than 144 pounds per calendar day ("lbs/day"). Vol. 1, p. 122.
20.

In order for the emission threshold limits in 45 CSR 13 to apply, they must be

emissions of a regulated pollutant, as defined in 45 CSR 13-2.20. All of the regulated pollutants
in Moundsville Power's air AU were below the 45 CSR 13 modification thresholds.
21.

GHGs were not a regulated air pollutant at the time the AU was approved. In

Moundsville Power's case, the only potential basis for regulating GHGs as a "regulated air
pollutant" is if they are subject to an NSPS, as provided in 45 CSR 13-2.20.e: "Any air pollutant
subject to a new source performance standard (NSPS) promulgated under section 111 of the
Clean Air Act [including section 111(d)], which requires new and modified sources to satisfy
emissions standards, work practice standards and other requirements."

6

 22.

The OVJA has not been able to identify any NSPS that regulated GHGs prior to

October 23, 2015. On that date, GHGs became "regulated air pollutants" under 45 CSR 13 for
the first time with the promulgation of Subpart TTTT. Subpart TTTT is the first NSPS to
establish emission standards for GHGs, and it was not promulgated, nor did it become effective,
until October 23, 2015. Vol. 1, pp. 5-6, 178-79. On that date, GHGs could have become
"regulated air pollutants" by operation of45 CSR 13-2.20.e.
23.

The Federal Register notice made it completely clear when Subpart TTTT became

effective:
DATES: This final rule is effective on October 23, 2015. The incorporation by
reference of publications listed in the rule is approved by the Director of the
Federal Register as of October 23, 2015.
80 Fed. Reg. 6410(Oct. 23. 2015).
24.

A source is a covered source under Subpart TTTT if it is constructed after January

8, 2014. That is not the effective date of the NSPS. Vol. 1, pp. 178-79; Vol. 2, pp. 11-12.
25.

While Subpart TTTT applies to sources constructed before issuance of the Permit

or the AU, it was not effective, and, therefore, GHGs could not have been a "regulated air
pollutant" as contemplated by 45 CSR 13-2.20.e, until October 23, 2015, after the AU was
issued. Consequently, at the time the AU was issued, GHGs were not "regulated air pollutants"
as defined in 45 CSR 13-2.20, and an increase in GHGs of any amount could not be grounds for
a modification under 45 CSR 13.
26.

The DAQ and the Board properly refused to consider GHGs as a regulated air

pollutant for purposes of applying modification thresholds under 45 CSR 13. It would be
unlawful to treat an NSPS as effective, and, therefore, triggering GHG regulation as a regulated
pollutant, before the NSPS effective date.

7

 27.

In the alternative, and regardless of whether GHGs were a regulated air pollutant,

because of the adoption of Subpart TTTT, GHGs could not be regulated at the 6 lbs/hr, 10 tpy or
144 lbs/day level because it would result in a program more stringent than the federal Clean Air
Act("CAA")program, which is prohibited in West Virginia:
[N]o legislative rule or program of the director hereafter adopted shall be any more
stringent than any federal rule or program except to the limited extent that the director
first makes a specific written finding for any such departure that there exists scientifically
supportable evidence for such rule or program reflecting factors unique to West Virginia
or some area thereof... .
W Va. Code §22-5-4(a)(4).
28.

There was no "specific written finding" offered by either party to suggest that

there exists any reason for 45 CSR 13 to be more stringent than the federal CAA program.
29.

The U.S. Environment Protection Agency ("EPA"), in its "Tailoring Rule,"

decided to regulate GHGs at much higher levels than the 6 lbs/hr, 10 tpy, or 144 lbs/day that
trigger permitting under 45 CSR 13. The EPA rejected even applying the 100 tpy threshold for
Prevention of Significant Deterioration ("PSD") major source permitting on the grounds that
doing so "would mean that the PSD and Title V programs would apply to an extraordinarily
large number of small sources, the sources would incur unduly high compliance costs, and
permitting authorities would face overwhelming administrative burdens." 75 Fed. Reg. 31541
(June 3, 2010). Regulating GHGs using a 6 lbs/hr, 10 tpy, or 144 lbs/day threshold would be
more stringent than any federal program. Vol. 2, p. 61-62.
30.

40 CFR Part 98 is not an NSPS, nor does it establish emission standards. Id. at 6-

7. It is not the basis for considering GHGs as a regulated air pollutant for purposes of applying
modification thresholds under 45 CSR 13. Id.

8

 31.

The OVJA has failed to present sufficient evidence that the AU should have been

processed as a modification because GHGs were a regulated air pollutant pursuant to 45 CSR 13.
C.

The Increase of GHGs in the AU Did Not Trigger Major Source Permit
Modification.

32.

The proposed Moundsville Power natural gas combined cycle plant is a stationary

source as that tem.' is defined in 45 CSR 13-2.24, and is a major stationary source as defined in
45 CSR 14-2.43. It has undergone PSD review as a condition of the Permit.
33.

The OVJA alleged that the AU should have been a major modification due to the

increase in projected GHG emissions. Notice of Appeal to the Air Quality Board, p. 3, ¶ 1;
Appellant's Response to Moundsville Power LLC's First Set of Discovery Requests, No. 1.
34.

A "major modification" requires an increase in a regulated new source review

("NSR") pollutant of an amount specified in 45 CSR 14-2.40. A "regulated air pollutant" or
"regulated NSR pollutant" includes "any pollutant that is otherwise subject to regulation under
the CAA as defined in subsection 2.80." 45 CSR 14-2.66.d. GHGs are "subject to regulation"
after July 1, 2011, pursuant to the provisions of 45 CSR 14-2.80.d.2, which requires a
modification threshold of 75,000 tpy increase in GHGs.
35.

In Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014)("UARG"), the

United States Supreme Court ruled that increases in GHGs alone could not trigger major source
modification.
To sum up: We hold that EPA exceeded its statutory authority when it interpreted
the Clean Air Act to require PSD and Title V permitting for stationary sources
based on their greenhouse-gas emissions. Specifically, the Agency may not treat
greenhouse gases as a pollutant for purposes of defining a "major emitting
facility" (or a modification thereof) in the PSD context or a "major source in the
Title V context. To the extent its regulations purport to do so, they are invalid.
EPA may, however, continue to treat greenhouse gases as a "pollutant subject to
regulation under this chapter" for purposes of requiring BACT for "anyway"
sources.

9

 Id. at 2449. The OVJA has identified only GHGs as the basis for a major modification under 45
CSR 14. With issuance of the Board's Final Order, there was no other change in the AU that
would have triggered a major modification.
36.

Moundsville Power is not an "anyway" source for purposes of its AU application.

"Anyway" sources are those that would be subject to major source permitting under state PSD
programs like 45 CSR 14, because they are a new major source or create a significant increase at
a major source as a result of emissions other than GHGs. Only GHGs are increased above major
modification levels in the AU, as modified by the Board. There is no "anyway" increase in
emissions.
37.

Even if Moundsville Power had been an "anyway" source, the only requirement

that the United States Supreme Court imposed on such sources was BACT. The Permit had
BACT limits, and those limits were re-evaluated for purposes of the AU, even though that was
not required by law.
38.

The change in the manner in which increases in GHGs are regulated as major

modifications has been acknowledged by the OVJA (Vol. 1, p. 98) and the EPA. 80 Fed. Reg.
64510, 64629 (Oct. 23, 2015). In the preamble discussion to Subpart TTTT, the EPA stated that
the UARG decision "eliminates the possibility that the promulgation of GHG standards under
section 111 could result in additional sources becoming subject to PSD based solely on GHGs . .
.." 80 Fed. Reg. 64510, 64629, col. 3.
39.

The DAQ could not have insisted on a major modification due to the increase in

GHGs because it would have made the state air permitting system more stringent than the federal
system.
[N]o legislative rule or program of the director hereafter adopted shall be any more
stringent than any federal rule or program except to the limited extent that the director

10

 first makes a specific written finding for any such departure that there exists scientifically
supportable evidence for such rule or program reflecting factors unique to West Virginia
or some area thereof. . . .
W Va. Code §22-5-4(a)(4).
40.

There was no "specific written finding" offered by either party to suggest that

there exists any reason for 45 CSR 14 to be more stringent than the federal CAA program.
41.

Requiring Moundsville Power to undergo a major modification due to GHG

emission increases is contrary to the decision of the United States Supreme Court in UARG, is
inconsistent with the EPA position on permitting increases in GHGs that exceed 75,000 tpy, and
would make 45 CSR 14 more stringent than the federal CAA program.
42.

The DAQ did not err in refusing to process the Moundsville Power AU as a major

modification, even though the increase of GHG emissions allowed by the AU exceed 75,000 tpy.
By statute, the DAQ cannot apply a provision such as 45 CSR 14-2.80.e that is more stringent
than the federal CAA program, regardless of whether notice has been provided in accordance
with 45 CSR 14-2.80.g. Vol. 2, pp. 61-62.
COURT'S ORDERS
43.

The Court, having considered the matters appealed; the evidence presented to the

Board, including the testimony of witnesses and the documents submitted; and the arguments
adduced by the parties, hereby finds that the Class II Administrative Update issued by the DAQ
to Moundsville Power and modified by the Board was proper in all respects, and that the OVJA
has not demonstrated that the Board erred in affirming issuance of the Class II Administrative
Update. The Court further finds that the OVJA does not have a substantial right that is
prejudiced by issuance of the AU. Consequently, the Court hereby ORDERS AND AFFIRMS
the Class II Administrative Update issued to Moundsville Power, LLC, as modified by the

11

 Board, and ORDERS that the OVJA's appeal be dismissed. The objections and exceptions of
all parties aggrieved by this Order are noted and preserved.
It is FURTHER ORDERED that a certified copy of this Final Order be sent to all
parties or counsel ofrecord as follows:
(1) Kelby Thomas Gray, Esq., Dinsmore & Shohl LLP, 707 Virginia Street East, Suite
1300, Charleston, WV 25301;
(2) John F. Stock, Esq., Orla E. Collier, III, Esq., Benesch Friedlander Coplan &
Aronoff, LLP,41 S. High Street, Suite 2600, Columbus, OH 43215;
(3) David L. Yaussy, Esq., Spilman Thomas & Battle, PLLC, 300 Kanawha Boulevard,
East, Charleston, WV 25301;
(4) James D. Elliott, Esq., Spilman Thomas & Battle, PLLC, 1100 Bent Creek
Boulevard, Suite 101, Mechanicsburg,PA 17050;
(5) Jason Wandling, Esq., West Virginia Department of Environmental Protection, Office
of Legal Services, 601 57th Street, S.E., Charleston, WV 25304;
(6) West Virginia Air Quality Board, Attn: Jackie Shultz, Clerk, 601 57th Street, S.E.,
Charleston, WV 25304.
ENTER this

15'4"

,2017.

day of

NORABLE JOANNA I. TABIT
Order submitted by:
Jason Wandling
Senior Counsel
West Virginia Department of Environmental Protection
601 57th Street
Charleston, WV 25304
(Entered as Modified by the Court)

12

STATE OF WEST VIRGINIA
COUNTY OF KANAWHA,SS
I, CATHY S. GATSON, CLERK OF CIRCUIT COURT OF SAID COUNTY
AND IN SAID STATE, DO HEREBY CERTIFY THAT THE FOR
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