IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA PITTSBURGH DIVISION

Transcription

1 Case 2:08-cv MBC 2:05-mc Document 2721 Filed 02/27/2008 Page 11 of of IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA PITTSBURGH DIVISION SIERRA CLUB, NATIONAL PARKS ) CONSERVATION ASSOCIATION, GROUP ) AGAINST SMOG AND POLLUTION, and ) CHESAPEAKE BAY FOUNDATION, ) ) Plaintiffs, ) ) v. ) ) Civil Action No. WELLINGTON DEVELOPMENT-WVDT, ) LLC, ) ) Defendant. ) ) COMPLAINT INTRODUCTION 1. Plaintiffs bring this citizen suit under the Clean Air Act (CAA), 42 U.S.C. 7604(a)(1) and (a)(3), against Defendant Wellington Development-WVDT, LLC ( Wellington ) for its planned and/or actual construction of a 525-megawatt coal-fired power plant ( the Power Plant ) in Nemacolin, Greene County, Pennsylvania in violation of the requirements of the CAA. Plaintiffs seek declaratory and injunctive relief, the imposition of civil penalties, and costs of litigation, including attorney and expert witness fees. JURISDICTION AND VENUE 2. This Court has subject matter jurisdiction of this action pursuant to 42 U.S.C. 7604(a) and 28 U.S.C Venue is proper in this District pursuant to 42 U.S.C. 7604(c)(1) because the planned site of the Power Plant is located in this District.

2 Case 2:08-cv MBC 2:05-mc Document 2721 Filed 02/27/2008 Page 22 of of Although pre-suit notice is not required, on February 28, 2007, Plaintiffs Sierra Club, National Parks Conservation Association, and Group Against Smog and Pollution sent notice of the violations listed in this Complaint and their intent to sue to Defendant and to all appropriate state and federal agencies. 5. More than 60 days have passed since notice was given and neither the U.S. Environmental Protection Agency ( EPA ) nor the Commonwealth of Pennsylvania has commenced an action in a court of the United States or of Pennsylvania to redress the violations listed in this Complaint. PARTIES 6. Defendant Wellington Development WVDT, LLC ( Wellington ) is a limited liability company formed for the sole purpose of developing the Power Plant in Nemacolin, Pennsylvania. Wellington s principal place of business is in West Virginia. 7. Plaintiff Sierra Club sues on behalf of its members. The Sierra Club is a nonprofit public interest organization organized under the laws of the State of California. The Sierra Club has over 1.3 million members and supporters nationwide. On the state level, Sierra Club has over 26,000 members who reside in Pennsylvania, over 16,000 members who reside in Virginia, and over 1,000 members who reside in West Virginia and who are members of its state chapters in these three states. The Sierra Club is dedicated to protecting Pennsylvania s natural resources, the health of its people, and to exploring, enjoying and preserving the state s environment. The Sierra Club actively promotes the enforcement of existing federal air pollution laws, and the adoption of stricter federal air pollution standards for the purpose of protecting public health and the environment. 2

3 Case 2:08-cv MBC 2:05-mc Document 2721 Filed 02/27/2008 Page 33 of of Plaintiff National Parks Conservation Association (NPCA) sues on behalf of its members. NPCA is a non-profit membership corporation headquartered and incorporated in Washington, D.C., with over 340,000 members nationwide. NPCA has an office in Philadelphia, Pennsylvania and has over 16,000 members in Pennsylvania. NPCA has an office in Staunton, Virginia and has over 12,000 members in Virginia. NPCA works to protect and enhance America s National Park System for present and future generations. NPCA maintains a national project focused on preventing coal-fired power plant emissions from harming air quality related values in the national parks and wilderness areas. 9. Plaintiff Group Against Smog and Pollution (GASP) sues on behalf of its members. GASP is a non-profit corporation organized under the laws of Pennsylvania, with approximately 300 members in the region surrounding the Power Plant. GASP s mission is to work for a clean and sustainable environment with special emphasis placed on improving air quality in southwestern Pennsylvania. 10. Plaintiff Chesapeake Bay Foundation (CBF) sues on behalf of its members. CBF is a non-stock Maryland corporation registered to do business in the Commonwealth of Pennsylvania with offices in, among other places Harrisburg, Pennsylvania, Annapolis, Maryland, and Richmond, Virginia. CBF is the largest conservation organization dedicated to protecting the Chesapeake Bay watershed and its tributaries, including the Susquehanna River. CBF is comprised of approximately 190,000 total members. More than 12,400 of those members reside in Pennsylvania. Four members of CBF s board of trustees live in Pennsylvania. 11. CBF operates the following programs and activities that will be affected by the Power Plant: 3

4 Case 2:08-cv MBC 2:05-mc Document 2721 Filed 02/27/2008 Page 44 of of a. CBF s Education Department has operated the Susquehanna Watershed Education Program for over 15 years. This program conducts numerous student field investigations (approximately trips a year) in the Susquehanna Watershed with elementary, middle, and high schools from around the state. In addition, CBF conducts a student leadership program (approximately trips per year) in the Susquehanna Watershed. Most notably, CBF conducted Expedition Susquehanna in 2006 where 11 students traveled the length of the Susquehanna from Cooperstown, New York to the Chesapeake Bay. b. CBF also conducts riparian buffer restoration projects with students in Lancaster County, Pennsylvania. c. CBF has also conducted teacher training programs with state university graduate schools. This program (CBF s Chesapeake Classrooms program) is designed to instruct teachers or those studying to become teachers about the ecology of the river and riparian ecosystems and their relation to the Chesapeake Bay. Schools CBF has worked with include King s College, Lebanon Valley College and Shippensburg University. The goal of Chesapeake Classrooms is to help teachers infuse watershed education into the core curricula of their classroom curriculum. This includes training in the natural history and ecology of the Susquehanna River Watershed and its importance to the health of the Chesapeake Bay. d. CBF has also operated the extremely successful Pennsylvania Watershed Restoration Program in the Susquehanna River Watershed. This program provides technical and administrative assistance to landowners and leverages 4

5 Case 2:08-cv MBC 2:05-mc Document 2721 Filed 02/27/2008 Page 55 of of additional outside funds to install and maintain riparian forest buffers and other best management practices to improve water quality in Pennsylvania s portion of the Bay watershed. Since 1997, the program has invested $7 million to assist in implementation of over 2000 miles of forested buffers, 5000 acres of wetlands restoration/enhancement, and 130 additional best management practices to improve water quality by leveraging credits earned through wider buffers. e. These programs will be harmed by the creation of the Power Plant either due to harm to or the destruction of natural resources in and along the river and its tributaries or by impairing the aesthetic value of the river and its tributaries. 12. Plaintiffs members boat, fish, hike, swim, study nature, work, live, grow plants, breathe the air, and otherwise recreate in and near areas affected by the Power Plant, including the Shenandoah National Park and the James River Face Wilderness Area in Virginia, the Dolly Sods and Otter Creek Wilderness areas in West Virginia, and the Susquehanna River Watershed. The air quality and air quality-related values of these areas affects the recreational, educational, environmental, aesthetic, and economic interests of Plaintiffs members. The interests of Plaintiffs members will be adversely affected by pollution from the Power Plant because the level of pollutants to be discharged from the Power Plant will degrade air quality, injuring and/or damaging wildlife, vegetation, water quality, and real estate in areas used by Plaintiffs members, and harm the aesthetic enjoyment of these areas by Plaintiffs members. Construction of the Power Plant without valid Clean Air Act permits (PSD and NSR permits discussed below) will also adversely affect the health of Plaintiffs members. An order of this Court directing Defendant to procure new PSD and NSR permits prior to constructing the Power Plant will 5

6 Case 2:08-cv MBC 2:05-mc Document 2721 Filed 02/27/2008 Page 66 of of redress the injuries to Plaintiffs members because of recent advances in pollution control technologies that may be required under a new permit and because of changes in the applicable regulations. FACTS 13. The Power Plant is designed to burn a mixture of newly mined coal and bituminous waste coal in two circulating fluidized bed boilers to generate electricity. If built, it would be the largest waste-coal-fired facility of this type in the United States. 14. The CAA is designed to protect and enhance the quality of the Nation s air resources so as to promote the public health and welfare and the productive capacity of its population. 42 U.S.C. 7401(b)(1). 15. Part C of the CAA sets forth requirements for the prevention of significant deterioration in areas where air quality is attaining national ambient air quality standards (the PSD program). 42 U.S.C The PSD program prohibits construction of a major emitting facility after August 7, 1977 in an attainment area unless the facility has a PSD permit. 42 U.S.C. 7475(a). 16. EPA has designated Greene County, Pennsylvania as an attainment area under the CAA for sulfur dioxide and nitrogen dioxide. 40 C.F.R EPA has authorized Pennsylvania to implement the PSD program for air pollution sources in the Commonwealth of Pennsylvania. 49 Fed. Reg. 33,127 (Aug. 21, 1984). 18. Pennsylvania has adopted the federal PSD regulations at 40 C.F.R. Part 52 in their entirety as the PSD program applicable in the state. 25 Pa. Code (1983). These requirements supplement the requirements in Chapter 25 of the Pennsylvania Code. Id. 6

7 Case 2:08-cv MBC 2:05-mc Document 2721 Filed 02/27/2008 Page 77 of of Pursuant to the federal PSD regulations, no new major stationary source can begin actual construction without a permit meeting the requirements of the PSD program. 40 C.F.R (a)(2)(iii). 20. The Power Plant is a major stationary source because it has the potential to emit more than 100 tons per year of sulfur dioxide, nitrogen dioxide, particulate matter, particulate matter less than 10 microns in diameter, volatile organic compounds, hydrochloric acid and sulfur acid mist, which are regulated pollutants under the CAA. 40 C.F.R (b)(1)(i)(a), 50.4, 50.11; Plan Approval, June 21, 2005, Conditions 4 re Stack Emissions Limitations. 21. Pursuant to the federal PSD regulations, [a]ny owner or operator who constructs or operates a source or modification not in accordance with the application submitted pursuant to this section or with the terms of any approval to construct... shall be subject to appropriate enforcement action. 40 C.F.R (r)(1). In addition, [a]pproval to construct shall become invalid if construction is not commenced within 18 months after receipt of such approval, if construction is discontinued for a period of 18 months or more, or if construction is not completed within a reasonable time. Id., 52.21(r)(2). 22. Similarly, section (b) of the Pennsylvania Code provides: 25 Pa. Code (b). If the construction, modification or installation is not commenced within 18 months of the issuance of the plan approval or if there is more than an 18-month lapse in construction, modification, or installation, a new plan approval application that meets the requirement of this subchapter. shall be submitted. 23. The purpose of the 18-month deadline is to ensure that new plants are built to comply with the Best Available Control Technology (BACT) required by the CAA and on the basis of current information regarding the level of air pollution in the locality where the facility 7

8 Case 2:08-cv MBC 2:05-mc Document 2721 Filed 02/27/2008 Page 88 of of is to be located. After 18 months, technological advances and changes in air pollution conditions may make the permit s pollution control requirements outdated. 24. On June 21, 2005, the Pennsylvania Department of Environmental Protection issued a Plan Approval, which has the effect of a PSD permit under the CAA, authorizing Wellington to construct the Power Plant. 25. Condition 3(d)(1) of the Plan Approval provided that the authorization to construct expired if Wellington did not commence construction within 18 months after the date of approval, which meant that the expiration date was December 21, Pa. Code (b). 26. Under the CAA and the Plan Approval, to commence construction of a major stationary source means: that the owner or operator has all necessary preconstruction approvals or permits and either has: (i) Begun, or caused to begin, a continuous program of actual onsite construction of the source, to be completed within a reasonable time; or (ii) Entered into binding agreements or contractual obligations, which cannot be cancelled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time. 40 C.F.R (b)(9). 27. Prior to December 21, 2006, Wellington did not commence construction within the meaning of this regulation, because: a. Wellington did not enter into any binding agreement or contractual obligation within the meaning of this regulation prior to December 21, 2006; b. Wellington only constructed one small concrete foundation for Transfer Tower Number 5 prior to this date, and this activity was not part of a continuous program 8

9 Case 2:08-cv MBC 2:05-mc Document 2721 Filed 02/27/2008 Page 99 of of of actual on-site construction of the source, to be completed within a reasonable time; c. Wellington has not met any of the milestone dates in the detailed construction schedule that it filed with the Pennsylvania Department of Environmental Protection on April 24, 2006 as part of its permit application; and d. Since December 2006, Wellington has not maintained a continuous program of actual on-site construction of the Power Plant. Aerial site photographs taken in January 2007, June 2007, August 2007, and January 2008 show no additional construction and only some tree-clearing and minor site disturbance. 28. EPA has designated Greene County, Pennsylvania as a nonattainment area for ozone. 40 C.F.R (Ozone 8-hour standard). 29. New major stationary sources in nonattainment areas must comply with the New Source Review (NSR) program in Part D of the CAA (42 U.S.C ), which requires NSR permits for such sources. 42 U.S.C. 7502(c)(5), The Power Plant is a major stationary source under the NSR program because it has the potential to emit more than 100 tons per year of nitrogen oxides and more than 50 tons per year of volatile organic compounds, which contribute to the formation of ozone. 25 Pa. Code (c). 31. EPA approved Pennsylvania s regulations implementing the NSR program on December 9, Fed. Reg. 64, Pennsylvania s NSR regulations prohibit construction or modification of an air contamination facility in a nonattainment area or having an impact on a nonattainment area 9

10 Case 2:08-cv MBC 2:05-mc Document 2721 Filed 02/27/2008 Page of of unless the facility meets the requirements of the NSR program. 25 Pa. Code (a). This regulation is incorporated into Pennsylvania s State Implementation Plan (SIP) under the CAA at 40 C.F.R (c). 33. On June 21, 2005, the Pennsylvania Department of Environmental Protection issued a Plan Approval, which has the effect of a NSR permit under the CAA, authorizing Wellington to construct the Power Plant. 34. Once a plan approval has been issued, a determination that the facility satisfies the NSR program expires if construction does not commence within 18 months of the date specified in the plan approval. 25 Pa. Code (2)(i) as incorporated into the Pennsylvania SIP at 40 C.F.R (c). 35. Wellington s Plan Approval expired on December 21, 2006, because Wellington did not commence construction within 18 months as required by the NSR program. 36. In a letter sent to Plaintiffs counsel in May 2007, and in a motion filed in December 2007 with the Supreme Court of Pennsylvania, Wellington stated its intention to construct the Power Plant. CLAIMS COUNT ONE (PSD Violation) 37. Plaintiffs reallege and incorporate by reference paragraphs 1 through 36 above. 38. The CAA authorizes citizens to bring suit against any person who proposes to construct or constructs any new or modified major emitting facility without a permit required under part C of subchapter I (relating to significant deterioration of air quality)... or who is alleged... to be in violation of any condition of such permit. 42 U.S.C. 7604(a)(3). 10

11 Case 2:08-cv MBC 2:05-mc Document 2721 Filed 02/27/2008 Page of of Wellington did not commence construction of the Power Plant within 18 months of receiving its Plan Approval and its PSD permit became invalid on December 21, Wellington s plan to construct, or actual construction of, the Power Plant violates the PSD provisions of the CAA, because Wellington does not have a valid PSD permit for such construction. COUNT TWO (NSR Violation) 41. Plaintiffs reallege and incorporate by reference paragraphs 1 through 36 above. 42. The CAA authorizes citizens to bring suit against any person who proposes to construct or constructs any new or modified major emitting facility without a permit required under... part D of subchapter I (relating to nonattainment) or who is alleged... to be in violation of any condition of such permit. 42 U.S.C. 7604(a)(3). 43. Wellington did not commence construction of the Power Plant within 18 months of receiving its Plan Approval and its NSR permit became invalid on December 21, Wellington s plan to construct, or actual construction of, the Power Plant violates the NSR provisions of the CAA, because Wellington does not have a valid NSR permit for such construction. COUNT THREE (Permit and SIP Violation) 45. Plaintiffs reallege and incorporate by reference paragraphs 1 through 36 above. 46. The CAA authorizes citizens to bring suit for violation of any emission standard or limitation which is in effect under the CAA, including any condition or requirement of a permit under part C of subchapter I (relating to significant deterioration of air quality) or part D of subchapter I (relating to nonattainment)..., and any other standard, limitation, or schedule 11

12 Case 2:08-cv MBC 2:05-mc Document 2721 Filed 02/27/2008 Page of of established under... any applicable State implementation plan approved by the Administrator,... and any requirement to obtain a permit as a condition of operations which is in effect under this Act... or under an applicable implementation plan. 42 U.S.C. 7604(a)(1), (f)(3), (f)(4). 47. Wellington s plan to construct, or actual construction of, the Power Plant violates Condition 3(d)(1) of its Plan Approval and the PSD and NSR provisions of the Pennsylvania SIP because Wellington has not (a) commenced a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or (b) met any of the milestone dates in the detailed construction schedule that it filed with the Pennsylvania Department of Environmental Protection on April 24, 2006 as mandated by Condition 3(d) of the Plan Approval. RELIEF Wherefore, Plaintiffs request that the Court grant the following relief: 1. A preliminary and permanent injunction enjoining Wellington from constructing the Power Plant until it obtains valid PSD and NSR permits; 2. A declaratory judgment that Wellington s proposal to construct, or actual construction of the Power Plant, after December 21, 2006 is illegal under Condition 3(d)(1) of its Plan Approval and the PSD and NSR provisions of the CAA; 3. The imposition of appropriate civil penalties for each day that Wellington constructed the Power Plant without a valid PSD or NSR permit and in violation of Condition 3(d)(1) of its Plan Approval; 4. An order requiring Wellington to pay Plaintiffs costs of litigation, including attorney and expert witness fees; and 12

13 Case 2:08-cv MBC 2:05-mc Document 2721 Filed 02/27/2008 Page of of All other relief that the Court deems just and proper. Respectfully submitted, s/ Robert L. Jennings, Jr. Robert L. Jennings, Jr., Esq. (PA34900) Robert L. Jennings, Jr., P.C Fifth Avenue, 6 th Floor Pittsburgh, PA Phone: (412) Telefax: (412) rjennings@gpwlaw.com Counsel for Plaintiffs OF COUNSEL: James M. Hecker, Esq. Public Justice 1825 K Street, N.W. Suite 200 Washington, DC (202) JHECKER@publicjustice.net 13