WEST VIRGINIA AIR QUALITY BOARD
CHARLESTON,WEST VIRGINIA

OHIO VALLEY JOBS ALLIANCE,

Appellant,

V.

Appeal No. 18-01-AQB

WILLIAM F. DURHAM,DIRECTOR,DIVISION
OF AIR QUALITY,WEST VIRGINIA
DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Appellee,
and

ESC HARRISON COUNTY POWER LLC AND WEST

VIRGINIA STATE BUILDING AND CONSTRUCTION TRADES
COUNCIL,

Intervenors/Appellees.

I. Findings of Fact,Conclusions of Law and Order

A hearing of the above-captioned matter was held before the Air Quality Board on July
23, 2018 in Charleston, West Virginia, Present for the Board were Walter M. Ivey, P.E., Grant
Bishop, Robert C. Omdorff, Jr., R. Thomas Hansen, Ph.D. and J. Michael Koon. Serving as
counsel to the Board was John Gray of the West Virginia Office of the Attorney General.

Representing the appellant, Ohio Valley Jobs Alliance ("OVJA"), were Orla E. Collier, III, John
F. Stock and Joseph R. Blalock; representing the appellee, the Director of West Virginia's
Department of Environmental Protection's("DEP") Division of Air Quality (the "Director"), was
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 Charles S. Driver; representing intervenor ESC Harrison County Power LLC ("Harrison County
Power?), was David L. Yaussy; and representing intervenor West Virginia State Building and
Construction Trades Council ("Building Trades") was Vincent M. Trivelli.

A quorum being present, the hearing was called to order. As an initial matter, the Board
considered the Building Trades' motion for reconsideration of the Board's earlier denial of the
Building Trades? motion to intervene in this matter. After granting the motion for
reconsideration and allowing intervention by the Building Trades, the Board heard opening
statements and the presentation of evidence by the OVJA.

After presentation of the OVJA's case, the Director and intervenors moved for rejection
of the appeal on the grounds that the OVJA had not met its threshold burden of providing
suf?cient evidence to support a ?nding that the Director's issuance of Permit No. R14-0036
("Permit") was incorrect. The Director further moved for dismissal of the appeal on the grounds
that the OVJ A did not have standing to pursue an appeal of the Permit.

After a recess to consider the motions before it, the Board ruled 1) that there was
insuf?cient evidence presented by the OVJA to support a ?nding that the Director had acted
improperly in issuing the Permit, and 2) that the OVJA lacked representational standing to
pursue an appeal of the Permit. The Board's rulings are re?ected in the following Findings of
Fact, Conclusions of Law, and Order.

11. FINDINGS OF FACT
A. THE FACILITY SEEKING A PERMIT

1. Harrison County Power proposes to construct and operate a natural gas-powered

combined cycle electric power plant (the "Project") near Clarksburg, in Harrison County, West

Virginia. According to its permit application:

The Project site is located near the City of Clarksburg, Harrison
County, West Virginia, in the Census Designated Place of Despard.
The Project site is zoned for industrial use, and provides multiple
strategic advantages that will allow the plant to produce low cost
base load electricity. The proposed primary point of interconnection
is a direct 138 kilovolt (kV) interconnection to the First Energy?s
(Allegheny [sic] Power?s) existing Glen Falls 138 kV substation,
about 2 miles north of the project site. Plant output will be sold into
the Jersey-Maryland Interconnection LLC
(PJM) regional electric grid.

ESC Harrison County Power, LLC Air Permit Application Combined?Cycle Power Plant Project

Clarksburg, Harrison County, West Virginia, p. 1. CR at 603.1

2. The Preliminary Determination noted that emission sources at the Project will
include "[o]ne General Electric (GE) Frame 7HA.02 or equivalent advanced combined cycle
combustion turbine (CT), with one Heat Recovery Steam Generator (HRSG) equipped with
supplemental duct ?ring" burning natural gas. CR at 182, 185.

3 Harrison County Power ?led its application for a major source permit in
accordance with 45 CSR 14 on November 22, 2016. CR at 177. The Permit was issued March
27, 2018. CR at 6. The OVJA ?led its appeal ofthe Permit on April 20, 2018.

4. The Project will burn natural gas and has limits for opacity, nitrogen dioxide
and particulate matter. Tr. at 103.

B. THE APPEAL
5. On April 20, 2018, the OVJA ?led its Notice of Appeal arguing that the Director's

issuance of the Permit was ?unreasonable, arbitrary, capricious and an abuse of discretion.?

OVJA Notice of Appeal, Exhibit A at 11.

 

Documents in the Certi?ed Record will be referred to as at the transcript of the July 23, 2018 hearing
will be referred to as "Tr. at "g and the Appellant's Exhibits will be referred to as "App't Ex. 

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6. The OVJA claims it has standing to bring this appeal, pursuant to W. Va. Code 
22-5-14, because it participated in the permit application process when it ?led comments and
requested a public meeting on October 10, 2017. OVJA Notice of Appeal at l. OVJA expert
witness, Mr. Pollack, reviewed and commented on the modeling protocol. See, Tr. at 48-49.

7. The OVJA is a trade association whose mission is "to be a voice for local jobs,
fair and responsible taxation, and a stronger Ohio Valley economy." Tr. at 149-150.

8. This is not the ?rst appeal of this nature ?led by the OVJA. The Board heard an
appeal by the OVJA of the Moundsville Power, LLC natural gas power plant project in Ohio
Valley Jobs Alliance v. Durham and Moundsville Power, Case No. 15-01-AQB. In its Final
Order, the Board noted that it "was somewhat concerned by the OVJA's apparent lack of
knowledge about the contents of its appeal, lack of cognizable purpose related to the
environment, and overall express intent to stop the construction of the plant solely to bene?t
another industry." Id., Final Order at 2.

9. Mr. James Thomas testi?ed on behalf of the OVJA regarding its standing to
appeal the Permit. During the appeal, Mr. Thomas testi?ed that he does not reside in Harrison
County. Tr. at 111. He also testi?ed that he does not believe that the Project will personally
affect him in any way. Tr. at 1 14. He testi?ed that he believes that four OVJA members reside
in Harrison County, Tr. at 111, but he could only identify the ?rst name of one OVJA member
who might live in Harrison County, "Steven", and further testi?ed that Steven had not
complained to him about possible adverse health effects and that Steven was not involved in the
OVJA's appeal. Tr. at 119. Mr. Thomas did not testify about the health impacts of the Project
on any OVJA member, or any other person. Mr. Thomas could not identify health effects his

members might experience as a result of the Project that would be different than those posed by

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existing emission sources. Tr. at 115. Mr. Thomas ?led his complaint because of ?just regular
air pollution? and he deferred to his expert, Mr. Pollack. Tr. at 121-124.

10. No one from Harrison County attended the hearing, submitted an af?davit, or
testi?ed about the effects of the Project on their health or the environment, or other impacts of
any kind.

11. Speci?cally, the OVJA claims that Harrison County Power?s permit application:

i. ?may not have satis?ed EPA consultation requirements that apply for the use of
Tier 3 N02 screening modeling techniques? because it used the 
option in its modeling analysis (emphasis added).

ii. was de?cient because its emission inventory for the cumulative impact analysis
of NO2 failed to include two major sources.

underestimated the cumulative impact for and PM Because the
modeling did not include the station?s cooling towers.

iv. failed to incorporate the use of maximum hourly emissions in its analysis of
potential plume visibility impacts.

v. wrongly used a stack height that exceeded good engineering practice
requirements.

vi. violated its modeling protocol by using an emergency diesel generator exit
velocity that was unusually high.

vii. failed to produce input and output modeling ?les.

OVJA Notice of Appeal, Exhibit A at 1 1-12.

A. APPENDIX REVISIONS AND THE PERMIT APPLICATION PROCESS

12. On November 22, 2016, Harrison County Power submitted its modeling protocol
to the Director; it was approved on January 27, 2017. CR at 582. Harrison County Power then
submitted its modeling report to the Director on March 28, 2017. CR at 450.

13. Air quality modeling for major source permits is done in accordance with EPA's
Guideline on Air Quality Models, found at 40 CFR Part 51, Appendix ("Appendix Tr.
at 33. "Air quality modeling is a mathematical simulation of how air pollutants disperse and
react in the atmosphere to affect ambient air quality." 
In accordance with state and
federal requirements, air emissions from the Project were modeled to determine whether they
were likely to cause a violation of ambient air quality standards.

14. Among other things, Appendix provides guidance on use of the 
Regulatory Model 
There are three tiers of acceptable nitrogen dioxide modeling. Tr. at 39; Appendix W,
The tiers allow modelers to select a model with very simple, conservative
assumptions, or one requiring much more sophisticated modeling, to more precisely define the
expected impacts of a proposed source. Tr. at 40. Each tier represents a different level of
modeling complexity. Appendix does not require a permit applicant to complete all three
levels of modeling; if a modeler so chooses, she can begin with a more complex model, such as a
Tier 3 model, which requires the most sophisticated analysis. Tr. at 89.

15. The Ambient Ratio Method, version 2 is a model associated with Tier
2 N02 screening. Tr. at 38, 74. Other models are appropriate for Tier 3 N02 screening. One of
the acceptable Tier 3 screening options is the Plume Volume Method Molar Ratio Method

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 which was used by Harrison County Power. Tr. at 38, 44?45. Under Appendix W,
if a source models violations of air quality standards using a Tier 2 screening model like the
ARM2, the source can move to a Tier 3 model like the Appendix W, Tr. at
89.

16. In its November, 2016 modeling protocol, Harrison County Power explained how
it would perform its modeling. Harrison County Power proposed using the ARM2 for modeling
N02, with the used "on an as-needed basis." App?t. Ex. 1 at 2, Section 2.2. If the
ARM2 model would result in "unrealistically high concentrations of N02, then the Tier 
options will be considered." Id.

17. After Harrison County Power submitted its modeling protocol, the United States
Environmental Protection Agency announced on December 20, 2016, that it was
revising Appendix W. 82 Fed. Reg. 5182 (Jan. 17, 2017). Among other changes, there were
significant alterations to the application of AERMOD.


18. In its March 28, 2017 modeling report Harrison County Power explained why it
used the a Tier 3 modeling option, for evaluating NO2 emissions. CR at 486-488,
533-535. Harrison County Power explained that the time the submittal of the air quality
modeling protocol, the Tier HI methods were not regulatory options in AERMOD. However,
with the release of AERMOD l6216r, the Tier options are now incorporated as options in the
default application oof CR at 488. Further discussion of how Harrison County
Power complied with AERMOD and Appendix is found in Appendix of the modeling

report. CR at 533?535.

19. On May 22, 2017, the changes to Appendix W, including those that were relied
upon by Harrison County Power in modeling the Project, became effective. 82 Fed. Reg. 14324
(March 20, 2017). Therefore, at the time the Permit was issued in draft form in September of
2017, the modeling done by Harrison County Power was consistent with the version of
Appendix that was then in effect, and that had been announced in December of 2016.

20. During the Permit Application process, the Harrison County Power provided
electronic air modeling ?les to the Director. CR at 450-451.

21. EPA reviewed and commented upon the Permit the Director proposed issuing.
None of comments complained about or addressed the modeling done by Harrison
County Power and approved by the Director. There was no request for additional modeling data.

CR at 51-56.
B. MODELING ISSUES THE OVJA RAISED IN AT THE HEARING

22. One issue Appellants raised in this appeal is the modeling for N02 emissions
during a "cold start" of the gas turbines; speci?cally, the use by the Harrison County Power
modeler of 0.3 as the ratio530-532, Appendix W, The
Permit de?nes a cold start as occurring when a turbine has been shut down for a period of 72
hours or more before restarting (therefore, having no signi?cant residual heat). Tr. at 77.

23. Appendix speci?cally states that modelers may rely upon manufacturers? data
for determining the appropriate ratio, and Harrison County Power did rely on
manufacturer data. Appendix W, Mr. Pollack, the OVJA's expert witness, testi?ed
that it is not unheard of to use manufacturer data for in-stack testing. Tr. at 94. In this instance,

the prospective turbine manufacturer for the Harrison County Project said that its testing data

revealed that 0.3 is an appropriate average ratio during cold start up events. CR at 53 1-532.

24. Harrison County Power did model emissions from two major sources
(Dominion's Sardis and Equitrans' Comet Compressor Stations) that were within the model's
domain, after the public comment period ended. CR at 37; Tr. at 57. While the re-modeling
showed predicted exceedances of ambient air quality standards at those locations, those
exceedances were not related to the Project. There were no modeled violations related to the
Project. CR at 37; Tr. at 97. Even if the Project had no emissions, the modeled violations would
still exist, solely as a result of current emissions from other sources. Tr. at 97.

25. Emissions from the existing Pepper and Law Compressor Stations were not
considered in the modeling because they were located too far from the Project, and there was no
discernable concentration gradient between the Project and the compressor stations. CR at 38.
"Therefore, the Law and Pepper sources were not included in the ESC Harrison cumulative
modeling analyses, consistent with EPA guidelines." Id.

26. Although Mr. Pollack complained about the DEP not having "anything that explicitly
de?ned what the concentration gradient was for those sources" [the Pepper and Law
Compressor Stations], he did not identify a standard for determining whether there was a
discernable concentration gradient of between the Project and the compressor stations, and
if so, whether the Project's modeling showed that such a concentration gradient existed. Tr. at 99.
He said that he was not convinced by Harrison County Power's modeling that there was not a
signi?cant gradient, without explaining how that determination should have been made. Id. Mr.
Pollack agreed that the determination of the signi?cance of a concentration gradient is left to the

reviewing agency. Tr. at 83. It is noteworthy that Mr. Pollack did not report that he modeled the

Law and Pepper stations, to demonstrate that there would be a signi?cant concentration gradient
of between them and the Project. Tr. at 85.

27. Although Harrison County Power did not separately model emissions from minor
sources located within 20 kilometers of the Project, Tr. at 56-57, EPA does not require modeling
of minor sources. Tr. at 101. Emissions from minor sources were represented by Harrison
County Power in the background pollution concentrations that were used in the models. Id.

28. emissions from First Energy's Harrison Station were modeled using that
facility's Title operating permit limits and acid rain permit limits. CR at 39, 94. Mr. Pollack
referred only to the limits found in the Title permit when calculating the emissions inventory
for First Energy's Harrison Station. App't Ex. 1, Sec. 2.3, p. 9. The modeling results using all
the appropriate permit limits showed no violations. CR at 39.

29. Particulate matter (PM) emissions from the Project did not show violations as
originally modeled. Additional PM emissions from First Energy's Harrison Station cooling
towers were added to the modeling inventory and subsequently modeled and the results
continued to show no modeled exceedances of PM air quality standards, con?rming the original
professional judgment to exclude these sources. CR at 39.

30. Mr. Pollack testi?ed that he performed a VISCREEN Level 1 analysis to evaluate
the potential for visible emissions from the Project that might affect public areas. CR at 146; Tr.
at 64. VISCREEN was developed primarily for determining effects on Class I areas. Workbook
for Plume Visual Screening and Analysis (USEPA, 1992) ("Workbook") p. 21, footnote. There
are no Class I areas in the area of the Project. Tr. at 101-102. Class 11 areas have different, less

rigorous modeling analysis. Tr. at 102-103.

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31. Mr. Pollack modeled visual impairment based on a worst case one hour event,
during a cold start up. CR at 145. Harrison County Power modeled worst case daily emissions,
assuming a cold start up and one hot start up. CR at 95.

32. Mr. Pollack was uncertain whether the Project would produce a visible plume, or
even if it did, he could not estimate how far from the stack it would be seen. Tr. at 104.

CONCLUSIONS OF LAW
A. STANDARD OF REVIEW

1. The Air Quality Board's standard of review is de novo (W. Va. Code 
which requires the Board to hear the appeal and be the "ultimate ?nder of fact and to act
independently on the evidence before it." Accordingly, the Board does not afford deference to
the decision of the Division of Air Quality. W. Va. Div. of Envtl Prot. v. Kingwood Coal C0.,
490 823, 834 (W. Va. 1997).

2. "The burden of proof is a shifting burden. Appellant must raise the issue with
suf?cient supporting evidence to support a ?nding that Appellee?s decision was incorrect.
Appellee must produce evidence demonstrating its reasoning in making its decision. Appellant
then has the opportunity to show that evidence produced by the Appellee is pre-textual or
otherwise de?cient. Wetzel County Solid Waste Authority v. Chief, O?ice of Waste Management,
Division of Environmental Protection, Civil Action Number: 95-AA-3 (Circuit Court of
Kanawha County, 1999)." Hughes v. Benedict and Appalachia Midstream Services LLC, Appeal

No. 10-03-AQB, Final Order at 13, Conclusions of Law 11 and 12.

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B. PERMIT REVIEW AND SUBSEQUENT PERMIT-RELATED COMMENTS SATISFY
CONSULTATION REQUIREMENT

3. "Consultation" is a term used, but not de?ned, in Appendix W. It is undisputed
that EPA reviewed and commented extensively on the Permit, and that the Director responded to
all concerns EPA expressed. CR at 51-56. This review by EPA must be assumed to have
included information in the ?le, speci?cally the use of 0.3 as the ratio for cold starts,
as explained in Appendix of the March 2017 modeling report. CR at 531 The Board
therefore concludes that DEP did consult with EPA (regardless of the modeling option chosen),
and that consultation included the emissions limits used in the Permit and the basis for
those limits. Thus, the Board ?nds, as a matter of law, the Director did not err in issuing the
permit and will not compel the Director to respond to allegations regarding insuf?cient
consultation with EPA because the OVJA failed to offer suf?cient threshold evidence in support
of this allegation.

C. HARRISON COUNTY POWER USED APPROPRIATE NO2 MODELING PROCEDURES AND
VARIABLES

4. During the hearing, the OVJA contended that Harrison County Power?s NO2
modeling was de?cient because its modeling protocol mentioned ARM2, a Tier 2 screening
model, and didn't explain why Harrison County Power used Tier 3 modeling for certain events,
such as an infrequent cold start. Tr. at 90; App't Ex. 1 at 3, Sec. 2.2.

5. The Board concludes that Harrison County Power properly explained its
modeling process, and the inputs used. See CR at 486?488. Furthermore, Mr. Pollack, the
expert, testi?ed that Appendix allows permit applicants to begin Tier 3 modeling
before completing Tier 2 modeling; and even allows permittees to begin with Tier 3 modeling if

they wish. Tr. at 93. Mr. Pollack testi?ed that ARM2 modeling was not required by Appendix

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W. Tr. at 74, 89-90. The modeler can use whatever tier he or she wants, as long as the
associated requirements are met. Tr. at 74. Appendix requirements are not violated by a lack
of ARM2 results, or even the lack of ARM2 modeling, as long as the permittee can demonstrate,
using Tier 3 modeling, that expected facility emissions will not cause a violation of ambient air
quality standards. While Harrison County Power?s modeling protocol refers to both ARM2 and
modeling, nothing in the protocol prohibits Harrison County Power from complying
with Appendix and demonstrating compliance using a more sophisticated model like the
to model NO2 emissions. For these reasons, the Board concludes that the OVJA failed
to offer suf?cient threshold evidence in support of its allegations that Harrison County Power
was required to ?nish modeling with the ARM2 before it was allowed to use the 
model.

6. During the hearing, the OVJA contended that Harrison County Power
inappropriately used manufacturer data for calculating the facility?s in-stack ratios. Tr.
at 130. In his testimony, the expert conceded that Appendix allows modelers to use
manufacturer's data for calculating ratios in a Tier 3 analysis, where justi?ed. Tr. at
91?92. Here, the relevant manufacturer con?rmed that the use of a .3 ratio was
acceptable for modeling cold starts. CR at 531. The OVJA has failed to offer suf?cient
threshold evidence in support of its allegations regarding the alleged improper use of a ratio of
0.3 for cold starts that would cause the Board to conclude that the Director erred in issuing the
Permit.

7. The Permit does not specify a turbine by manufacturer or model type; instead, it
references the design capacity and control devices. CR at 10, Table 1. The Permit also requires

Harrison County Power to install equipment (which includes a turbine) that meets those

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speci?cations and that is re?ected in the Permit application. CR at 12 and 20, Sections 2.5.1 and
4.1.1.

8. The Board concludes that Harrison County Power properly complied with
modeling guidance in Appendix that was effective when the Permit was issued in draft for
public and EPA review. For that reason, the Board also concludes that the OVJA failed to offer
suf?cient threshold evidence in support of its allegations regarding use of the current version of
Appendix that would cause the Board to conclude that the Director erred in issuing the
permit.

D. HARRISON COUNTY DECISION TO REMODEL NO2 EMISSIONS FROM Two
MAJOR SOURCES CURED ANY ALLEGED ERROR

9. In its initial submittal to the Director on March 28, 2017, Harrison County Power
did not model NO2 emissions from the Dominion Sardis or the Equitrans Comet Compressor
Stations. Tr. at 95. When the models were subsequently rerun, with both stations included, the
results did not Show any projected exceedances of air quality standards as a result of the Project's
emissions. Tr. at 97. Although the expert, Mr. Pollack, referred repeatedly to NO2
violations that were revealed when those two sources were included, he had to concede that the
modeled violations he was complaining about were neither caused by the Project nor did the
Project contribute to those Violations. Tr. at 97-98. Accordingly, the Board concludes that the
OVJA failed to offer suf?cient threshold evidence in support of its allegations regarding
emissions from the Sardis and Comet Stations to cause the Board to conclude that the Director
erred in issuing the Permit.

10. Similarly, during the hearing, the OVJA contended that Harrison County Power

failed to properly model the N02 emissions from the Pepper and Law Compressor Stations to

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demonstrate that there was no signi?cant NO2 gradient modeled between the Project and those
stations, located approximately 18 kilometers away. CR at 94. According to the expert,
the existing modeling fails to provide a meaningful determination of concentration gradients in
the area of the Project. Tr. at 99. Nonetheless, Mr. Pollack chose not to run a model to
demonstrate a predicted violation or a signi?cant concentration gradient is present, or identify an
objective standard that should be applied in order to measure a signi?cant concentration
gradient. Tr. at 84-85 and 98-99. Therefore, the OVJA could not present any evidence of a
signi?cant gradient. The Board ?nds nothing in the record that would suggest that the Pepper or
Law Compressor Stations would have affected the N02 modeling. Accordingly, the Board
concludes that the OVJA failed to present suf?cient evidence in support of its allegations
regarding a concentration gradient between the Project and the Pepper and Law Compressor
Stations to cause the Board to conclude that the Director erred in issuing the Permit.

11. Likewise, during the hearing, the OVJA contended that Harrison County Power
did not separately model minor sources of NO2 despite Mr. Pollack?s testimony that such
modeling is not required by EPA or the Director. Tr. at 101. Furthermore, Harrison County
Power?s NO2 modeling includes a background NO2 level that would conservatively include all
existing NO2 sources, minor or major. 1d. Accordingly, the Board concludes that the OVJA
failed to offer suf?cient threshold evidence in support of its allegations that emissions from
minor sources must be modeled that would cause the Board to conclude that the Director erred in

issuing the Permit.

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E. HARRISON COUNTY DECISION TO REMODEL PARTICULATE EMISSIONS
FROM Two COOLING TOWERS CURED ANY ALLEGED ERROR

12. The OVJA alleges that particulate emissions from two cooling towers at First
Energy's Harrison Station were not modeled properly. Tr. at 60-61. The expert, Mr.
Pollack, acknowledged that the emissions were subsequently modeled with emissions from the
First Energy cooling towers added but he claims that the additional input parameters were not
what he would have selected. Id. Mr. Pollack did not model emissions using alternative inputs
of the type he suggested should have been used and presented no evidence that, if used, would
have showed violations. Accordingly, the Board concludes that the OVJA failed to offer
suf?cient threshold evidence in support of its allegations regarding particulate matter emissions
from First Energy's Harrison Station?s cooling towers that would cause the Board to conclude
that the Director erred in issuing the Permit.

F. VISUAL PLUME IMPACTS WERE PROPERLY MODELED

13. An evaluation of the Project's impact on visibility is required as part of an
additional impacts analysis. 45 CSR But, there is no Speci?ed method for evaluating
visibility, nor is there a particular standard to be achieved. Referring to EPA guidance in the
form of a Workbook, expert claimed that Harrison County Power improperly evaluated
this issue because it did not model the Project?s maximum hourly emissions in its analysis. Tr. at
65.

14. The Board concludes that EPA workbooks and guidance are not binding on this or
any Project. Furthermore, for this particular case, the VISCREEN modeling using a one-hour
standard in which a cold startup was occurring which Mr. Pollack claims should have been used,

Tr. at 62, was designed primarily for assessing plume visual impacts in Class I areas, although it

16

can be applied in Class 11 areas. Workbook, p. 21, footnote. The Board also concludes that in
this case, where there are no Class I areas affected, a one-hour standard is not mandated by EPA
or by the Director. The Board concludes that there is no regulatory obligation to engage in the
one hour averaging and that Harrison County Power?s model using a one day average emission
adequately evaluates the likelihood of visual impacts during realistic worst case daily operations.
During his testimony, Mr. Pollack could not state af?rmatively that, given restriction on N02,
particulate matter and opacity that there would be visible plume, or how far it would extend from
the stack. Tr. at 103-104. Accordingly, the Board concludes that the OVJA failed to offer
suf?cient threshold evidence in support of its allegations regarding Visual impairment that would
cause the Board to conclude that the Director erred in issuing the Permit.
G. GOOD ENGINEERING PRACTICE FOR STACK HEIGHT
15. The OVJA contended in its Notice of Appeal that the Project's cumulative impact
modeling included the use of a stack height at the First Energy Harrison Power Station that
exceeded Good Engineering Practice stack height, in contravention of Section 123 of the Clean
Air Act. Notice of Appeal, Facts Relevant to Appeal and Speci?c Objections, Paragraph 20(e).
At the hearing, no testimony was offered on this issue, and Mr. Pollack con?rmed that the issue

was withdrawn. Tr. at 105.

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H. EMERGENCY DIESEL GENERATOR EMISSIONS
16. The OVJA contended in its Notice of Appeal that the exit velocity used in the
modeling for the emergency diesel generator was unusually high and exceeds what was listed in
the modeling protocol. Notice of Appeal, Facts Relevant to Appeal and Speci?c Objections,
Paragraph 20(f). At the hearing, no testimony was offered on this issue, and Mr. Pollack
con?rmed that the issue was withdrawn. Tr. at 106.
I. MODELING INPUT AND OUTPUT FILES
17. The OVJA alleged that Harrison County Power failed to produce input and output
modeling ?les. Notice of Appeal, Facts Relevant to Appeal and Speci?c Objections, Paragraph
21. A review of the comments ?led by the OVJA in response to the Permit application shows
that Mr. Pollack commented extensively on all aspects of the models, criticizing such things as
the manner in which they were run, the sources that were modeled, and the data that were used.
CR at 137?147. Mr. Pollack also reran models where he deemed appropriate. See, CR at
140. Subsequent to the ?ling of the notice of appeal, counsel for OVJA asked for speci?c
modeling information, which was provided by the Director. Accordingly, the Board concludes
that the OVJA failed to offer suf?cient threshold evidence in support of its allegations
regarding the availability of input and output modeling that would cause the Board to conclude
that the Director erred in issuing the Permit.
H. OVJ A STANDING - LEGISLATIVE AND REPRESENTATIONAL
18. In order to bring this appeal, the law requires the OVJA to have an interest that
could be affected by the issuance of the Permit.
Any person whose interest may be affected, including, but not necessarily limited

to, the applicant and any person who participated in the public comment process,
by a permit issued, modi?ed or denied by the secretary, or construction

18

authorization pursuant to section eleven-a of this article, may appeal such action
of the secretary to the air quality board pursuant to article one, chapter twenty-
two-b of this code.
W. Va. Code ?22-5-14. The OVJA claims this law Speci?cally gives ?any person who
participated in the public comment process? legislative standing, even when the OVJA would
fail to otherwise have judicial standing. The Board recognizes that the language of W. Va. Code
?22-5-14 appears to modify the word ?affected? as speci?cally including (among others) ?any
person who participated in the public comment process.? However, the Board also concludes
that West Virginia case law requires associations, such as the OVJA, to have representational
standing to appear before the judiciary ?to have the court decide the merits of the dispute or of
particular issues.? Warth v. Seldin, 422 US. 490, 498 (1975). is founded in concern about
the proper and properly limited role of the courts in a democratic society.? 1d..
19. In West Virginia, representational standing was recognized and de?ned in Snyder
v. Callaghan, 168 W. Va. 265, 284 241 (1981), and was modi?ed in A?iliated Const.
Trades Foundation v. West Virginia Dept. of Transportation, 227 W. Va. 653, 713 809
(2011):
Accordingly, we hold that the point of law announced in Syllabus
Point 2 of our decision in Snyder is modi?ed. In its place we hold
that an organization has representative standing to sue on behalf of
its members when the organization proves that: (1) at least one of
its members would have standing to sue in their own right; (2) the
interests it seeks to protect are germane to the organization?s
purpose; and (3) neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.
227 W. Va. 659, 713 815. The representational standing must be evaluated
under the Court's three?way test. All three prongs of the test must be satis?ed for the OVJA to

advance this appeal.

19

20. The Board concludes that the OVJA has failed to establish representational
standing. The purpose of the West Virginia Air Pollution Control Act2 in general, and the Permit
in particular, is to protect against emissions of air pollutants that would adversely affect human
health or the environment. The OVJA, as an organization, has no demonstrated interest in
protecting the health of the citizenry or the environment of Harrison County.

21. Mr. Thomas has failed to adequately identify any OVJA member who resides in
Harrison County. No member of the OVJA from Harrison County was present at the hearing.
The Board concludes that Mr. Thomas? reference to a member named "Steven" is not sufficient
to identify an affected member. Furthermore, the OVJA is not aware of any health effects that
its members will suffer as a result of the Project. Tr. at 115, 120?121. Consequently, the Board
concludes that no OVJA member will be personally affected by operation of the proposed plant,
and none would have individual standing to bring this appeal.

22. The interest in defeating natural gas powered generating units is not a
substantial right that can be protected by an appeal of an air permit. The Board agrees and
concurs with Judge Tabit?s ruling in the Moundsville Power case, Ohio Valley Jobs Alliance v.
Durham, Civ. Act. No. 16-AA-67 (Cir. Ct. Kan. County), that the OVJA was not protecting a
substantial right in its appeal of the major source air permit issued to Moundsville Power, and
therefore it could not prevail on its appeal, regardless of the errors it alleged. Judge Tabit
determined that:

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 of?cers, admitted
that it has taken this appeal solely to try to protect the coal industry,

 

2 W. Va. Code ?22~5~1 et. seq.

20

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 [Administrative Update of
the major source permit issued to Moundsville Power]. 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 identi?ed any substantial right to pursue an
appeal. Without demonstrating that the OVJA has a substantial
right that was prejudiced by the AU, the OVJA cannot prevail in
this appeal, regardless of whether there were errors committed by
the Board or the DAQ in issuing or af?rming the AU.

Ohio Valley Jobs Alliance v. Durham, Civ. Act. No. at 5-6 (Cir. Ct. Kanawha County

2017)

23. Here, the Board concludes that the OVJA, as an association, failed to establish
representational standing because it neither alleges that it has any members who would be
affected by the Project, nor identi?es a substantive interest that it is trying to protect.

24. The Board also recognizes that, under West Virginia law, prudential standing,
such as representational standing, can be abrogated by legislative action granting an express
right of action to a person who would otherwise lack prudential standing. Because of its concern
that the legislature may have abrogated prudential standing through its enactment of W. Va.
Code ?22-5-14, and to preserve judicial resources, the Board allowed the OVJA to make its case

on the merits; which it also failed to do.

21

IV. CONCLUSION AND ORDER

The OVJA has failed to present threshold evidence in support of its arguments on the
merits of its appeal that would be suf?cient to shift the burden of presenting evidence to the
Director, in accordance with Wetzel County Solid Waste Authority v. Chief Office of Waste
Management, Division of Environmental Protection, Civil Action Number: 95-AA-3 (Circuit
Court of Kanawha County, 1999). Accordingly, the Board rejects the appeal and approves the
terms and conditions of the Permit issued by the Director.

The OVJA has also failed to demonstrate that it has a substantial interest to protect in

bringing this appeal, and it therefore has no standing to prosecute this appeal.

04 ?in dual: Idiom gnu

Date JUMichadl Koon, Chairman
Air Quality Board

Notice of Appeal Rights:

This action by the Air Quality Board is an order approving a permit issued by the Director of the
Division of Air Quality. As such, any "petition for review shall be ?led in the Supreme Court of
Appeals within 30 days of the board?s order: Provided, That, if all parties consent to it, the
proceedings may continue in the Circuit Court of Kanawha County . . W. Va. Code 228-2-



22

AIR QUALITY BOARD

OHIO VALLEY JOBS ALLIANCE,

Appellant,
v. Appeal No. 18-01-AQB

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

Appellee,
and

ESC HARRISON COUNTY POWER, LLC,

Intervenor/Appellee,
and

WV BUILDING AND CONSTRUCTION TRADES COUNCIL, AF 

Intervenor/Appellee.

CERTIFICATE OF SERVICE

This is to certify that 1, Jackie D. Shultz, Clerk for the Air Quality Board, on September 24, 2018, served a true
copy of the foregoing Final Order to all parties in Appeal No. 18-01-AQB, by personal service and by depositing a true
copy thereof in the United States mail, postage prepaid, in envelopes addressed to the following:

via certi?ed?rst?class mail:

Joseph R. Blalock, Esquire Certi?ed Mail: 91 7199 9991 7038 4152 7179
Dinsmore Shohl, LLP

2100 Market Street

Wheeling, WV 26003

Orla E. Collier, Esquire Certified Mail: 91 7199 9991 7038 4152 7186
John F. Stock, Esquire

Benesch, Friedlander, Coplan Aranoff LLP

41 South High Street, Suite 2600

Columbus, OH 43215-6164

David L. Yaussy, Esquire Certified Mail: 9] 7199 9991 7038 4152 7193
Spilman Thomas Battle PLLC

300 Kanawha Blvd., East

Charleston WV 25301

Vincent Trivelli, Esquire Certified Mail: 9] 7199 999] 7038 4152 7209
Law Office of Vincent Trivelli

178 Chancery Row

Morgantown, WV 26505

via personal service:

William Durham, Esquire

Division of Air Quality

WV Department of Environmental Protection
601 57"1 Street, SE.

Charleston, WV 25304

Charles S. Driver, Esquire

Of?ce of Legal Services

WV Department of Environmental Protection
601 57?h Street, SE.

Charleston WV 25304

 
 

Jackie D. Shultz, Cle
Air Quality Board