By Luanne McGovern, West Virginia Highlands Conservancy

The West Virginia Highlands Conservancy, Tucker United and the Sierra Club filed an appeal of the air permit issued to Fundamental Data for a large power plant in Tucker County on Sept. 12, 2025. The appeal challenges the company’s claims that this 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 Wednesday, Nov. 5 at the Department of Environmental Protection’s (DEP) office in Charleston. As a result of that hearing, previously redacted information was released under a protective order to our attorney and expert witness, and two of our 17 objections were dismissed. 

The second hearing was conducted on Dec. 3-4 at the DEP offices in Charleston. The lawyers in the hearing were Mike Becher from Appalachian Mountain Advocates (for us), Scott Driver (for DEP) and Dave Yaussey and James Walls from Spilman, Thomas and Battle (for Fundamental Data). For the first time, we were able to meet and talk to representatives of Fundamental Data – Casey Chapman, Lewis Reynolds and Ted McGavran – who attended the hearing in person but did not testify. 

On day one, we presented four witnesses from the community to discuss how this project would impact Tucker County and the surrounding areas. Dr. Jim Kotcon (Sierra Club), Dr. Amy Margolies (Tucker United), Marilyn Shoenfeld (WVHC) and Al Tomson (Mayor of Davis) all provided strong testimony outlining their concerns and opposition to the project. Our expert witness was Dr. Ron Sahu, a mechanical engineer with extensive experience in power plants and air emissions. Dr. Sahu spent almost three hours explaining why the permit needed to be revised to a “major source” with higher levels of control and monitoring. Some highlights: 

– The emissions are “grossly underestimated” and will have natural variation from turbine to turbine, will be dependent on the how the turbines are run (“load”) and the age of the pollution control equipment. 

– The permitted NOx emissions level (99.35 tons/year) is effectively indistinguishable from 100 tons/year – the threshold for a major source – and cannot be controlled with the precision suggested in the permit. 

– Startups and shutdowns will lead to incomplete combustion and elevated emissions of carbon monoxide and formaldehyde. These emissions were not included in the permit and could push the plant above minor-source limits; EPA studies confirm this phenomenon. 

– The permit requires emissions testing only once within 180 days of startup, with no ongoing monitoring such as CEMS (continuous emission monitoring systems), leaving the public unable to verify future compliance. 

-Several emission sources were omitted entirely, including ammonia slip from the SCR catalyst and emissions from cooling systems. 

On day two, DEP and Fundamental Data presented their defense of the permit. Called as witnesses were Jerry Willimas (former DEP engineer who wrote the permit), Joe Kessler (DEP NSR Program Manager) and Leah Blin (engineer from Civil and Environmental Consultants, Inc. (CEC), the consultant that wrote the permit application). All the witnesses repeatedly stressed that, based on the information presented by Fundamental Data in the permit application, the plant would meet the requirements of a “synthetic minor source.” They further stated that the formaldehyde emission limit was based on manufacturer-provided “worst-case” estimates, though no evidence was offered to show these rates could be met during non-steady-state operations such as startups and shutdowns. No testimony was presented that contradicted Dr. Sahu’s conclusion that the plant could not reliably or verifiably maintain emissions within the extremely narrow limits required by the permit. When asked how many of the 300 plus permit applications submitted this year were denied, Mr. Kessler responded, “None.” 

The Air Quality Board now has 60 days to come to a decision about the air quality permit and the points raised by our appeal. 

There has been extensive media coverage of the hearing from across the state, showing widespread interest in this fight. Coverage has been reported by news sources such as West Virginia Watch, Mountain State Spotlight, West Virginia Public Broadcasting and many more.  

Thank you again for your support in this important fight for the future of the Highlands. This remains a lengthy and challenging legal process, and your support is essential. You can contribute to our legal fund here.