The state failed to require adequate pollution controls at the Weston 4 power plant before approving a construction permit for the job, according to a Wisconsin appeals court ruling Thursday.
The decision partially reverses a February 2009 circuit court ruling that the state was in line in approving the permit. The ruling Thursday left both sides considering an appeal to the Wisconsin Supreme Court.
The Sierra Club in 2006 sued the state, Wisconsin Public Service Corp. and Dairyland Power Cooperative for failing to require the best pollution-control technology before the Wisconsin Department of Natural Resources granted a construction permit for air emissions.
According to the lawsuit, the state DNR should have required more reductions of sulfur dioxide, nitrogen oxide and visible emissions at the new plant. Visible emissions include fine particulates, sulfuric acid and sulfur.
The $774 million Weston 4 plant near Wausau generates 525 megawatts of coal-fired electricity. It went online in 2008.
The District IV Court of Appeals on Thursday ruled only that the state failed to reduce visible emissions from the plant’s smokestack.
“We’re disappointed it wasn’t three out of three,” said the Sierra Club’s attorney, David Bender of Madison-based McGillivray Westerberg & Bender LLC. “But there are multiple avenues we can take on whether to challenge this.”
Bender said the Sierra Club has 30 days to decide if it wants to file for a state Supreme Court review. Alternatively, the group can wait and request the U.S. Environmental Protection Agency review a draft operating permit the state is expected to issue this summer.
The Sierra Club has not decided which route to take, Bender said.
According to the appellate court’s ruling, the DNR and the utilities must work to scale back smokestack emissions.
Linda Benfield, WPS’ attorney with Milwaukee-based Foley & Lardner LLP, was unavailable to comment on the decision.
Wisconsin Department of Justice spokesman Bill Cosh said state attorneys have not decided whether they will appeal the requirement for tighter emissions controls.
“We feel that most of it went in our favor,” he said.
Modifying the DNR permits for the project could lead to new construction at the plant to reduce emissions, Bender said, but he said he does not know how much that would entail or how much it would cost.
DNR representatives did not return calls for comment.
The Sierra Club has been fighting DNR permits for the coal-fired plant since 2003, and Bender said concerns raised during the state’s public comment and case hearing periods helped reduce emission levels. But there’s more work to do, he said.
“They have to redo their analysis of the best available technology,” he said.