Judge overturns law rushing EPA permit appeals

A Franklin County judge recently gave both industrialists and environmentalists something to cheer about by overturning state legislation that put strict deadlines and time limits on state appeals of decisions made the Ohio Environmental Protection Agency (OEPA), including appeals filed by activist groups against two permits for a proposed coal-burning power plant in Meigs County.

An addition to the 2009 state budget bill required the Environmental Review Appeals Commission (ERAC) to limit hearings to one hour and resolve more than 300 cases by Dec. 15.

Energy giants American Electric Power, Duke Energy Ohio and 11 other industrial companies with pending ERAC hearings filed a lawsuit in September to challenge the new rules. Leading environmental and citizens groups from across the state, many of which are challenging big energy projects, soon joined the effort as intervening plaintiffs.

On Oct. 9, Franklin County Common Pleas Judge Pat Sheeran ruled in favor of the plaintiffs and struck down the new deadlines and time limits.

The decision could push back decisions on appeals against an air permit-to-install and waste permit for the 1,000-megawatt power plant proposed in Letart Falls by American Municipal Power (AMP), but the non-profit utility company has pledged to "continue development" of the facility during the appeals process.

AMP communications director Kent Carson was not available for comment Friday, but AMP officials have said in the past that construction of the $3 billion power plant could begin in late 2009 or early 2010.

Shannon Fisk, a staff attorney for the National Resource Defense Council (NRDC), said his organization is happy that ERAC must now comply with basic due process.

The NRDC and two other environmental groups earlier this year appealed two OEPA permits for the AMP plant, including the air-pollution permit that recently was re-issued after a federal court ruling required the OEPA to modify the permit to include new pollution limits and require AMP to install a carbon-injection system to further limit emissions of hazardous pollutants.

Fisk confirmed that state law gives AMP the right to break ground while the appeals are being heard, but he said the NRDC hopes AMP won't start building a facility that "doesn't comply with the Clean Air Act."

The NRDC and its allies claim the permit must set limits on emissions of the greenhouse gas, carbon dioxide.

The final permit does not set a specific limit on carbon dioxide, but it does set lower limits on mercury and other pollutants than earlier versions.

A hearing on the appeal against the EPA permits for the proposed plant is set for Dec. 1, but could be rescheduled along with hundreds of other pending ERAC appeals.