By Luanne McGovern, West Virginia Highlands Conservancy
The West Virginia Highlands Conservancy, Tucker United and the Sierra Club filed an appeal for the air permit issued to Fundamental Data for a large natural gas power plant in Tucker County on Sept. 12, 2025. The appeal challenges the company’s claims that the plant qualifies as a “synthetic minor source” of pollution, and states that critical information has been hidden from public view through extensive redactions.
The first hearing of our appeal before the West Virginia Air Quality Board was held on Nov. 5 at the Department of Environmental Protection (DEP) office in Charleston. Before the hearing, more than 30 concerned citizens came out to rally and protest the permit, calling for justice for Tucker County.
The Air Quality Board is an independent board whose mission is to “adjudicate air quality appeals in a fair, efficient and equitable manner.” Board members are appointed by the governor and represent the public at large, industry and the government. We, the appellants, were ably represented by Mike Becher from Appalachian Mountain Advocates; the DEP, the appellee, was represented by Scott Driver; and Fundamental Data, the intervenor, was represented by Dave Yaussey and James Walls from Spilman, Thomas and Battle. The Board agreed to only hear two motions during this hearing, leaving the larger appeal to the hearing on Dec. 3.
The first motion was for additional data from the permit application to be released to the appellants to better prepare for our permit appeal. The Board members spent over an hour asking pointed and relevant questions about the need for the extensive redactions. After deliberation, the Board instructed the three parties’ lawyers to meet and develop an “agreeable protective order” that would allow our lawyer and expert witness to see the redacted information and to use that information in our appeal. The Board set a deadline of Nov. 12 for the agreement; otherwise, the Board would develop its own agreement. This is a significant positive outcome for the appellants.
The second motion, filed by the DEP, sought to dismiss three of the 17 objections in the appeal. The DEP was granted the dismissals for Objection No. 8 (fugitive emissions from mobile sources) and No. 12 (consideration that the plant would be used for a data center), but denied the dismissal for Objection No. 16 –– that “Appellee failed to adhere to the purpose of the West Virgina Air Pollution Control Act, as described in W. Va. Code § 22-5-1,3 when it permitted Fundamental Data’s Ridgeline Facility as a synthetic minor source of pollution.” 15 of our objections will be argued in the Dec. 3 hearing. All of the documents for the appeal and hearing can be found on the Air Quality Board’s website.
The WVHC extends its thanks for the outpouring of support from around the state in our fight against Fundamental Data and this power plant. Please come out on Dec. 3 for the next hearing or join by Zoom – time and location are still to be determined, but we will post updates on social media and through email.
If you are able, please consider contributing to our legal fund.
