niedbala@observer-reporter.com

A U.S. District Court judge has dismissed a lawsuit filed by four environmental groups seeking to halt construction of a 525-megawatt, waste coal-fired power plant in Nemacolin.

Judge Maurice B. Cohill Jr., in an order issued Tuesday, dismissed the group's suit, saying the court did not have jurisdiction to hear its claims.

The suit was filed in February by the Sierra Club, National Parks Conservation Association, Group Against Smog and Pollution and Chesapeake Bay Foundation.

Wellington Development LLC, developer of the plant, has faced repeated legal challenges by environmental groups opposed to the project.

Stanley Sears of Wellington called the latest federal suit "the fourth in a row of frivolous filings."

Environmental groups have been very public about their position regarding new coal-fired power plants, Sears said. "They've said they'll stop every coal-fired plant in the United States, not by merit, but by tying them up in the courts," he said.

If they are successful, Sears said, the need for electricity eventually is going to outstrip its supply, leading to shortages and black outs. "The environmentalists in this country are going to do what the terrorists couldn't do which is bring this country to its knees," he said.

Wellington will continue with the project not only because it is a good project but because the company "has done everything right," Sears said.

Michael Parker, legal director for Group Against Smog and Pollution, said the groups were disappointed with the decision but have not yet had a chance to review it and consider their options.

The groups in their suit claim Wellington did not have valid permits to construct the plant because it failed to begin construction, as required, within 18 months of the date it received plan approval.

The company received plan approval from the state Department of Environmental Protection on June 21, 2005, and was required to begin construction by Dec. 21, 2006.

In dismissing the suit, the court noted a letter presented by Wellington from DEP stated DEP inspected the site before Dec. 21, 2006, and concluded construction had commenced under criteria established for plan approval.

Wellington argued, and the court agreed, that the groups were only challenging what had previously been decided by DEP.

An allegation Wellington violated the 18-month requirement is "a collateral attack on a state permitting decision over which we have no subject matter jurisdiction," the court said.

The groups also claimed Wellington had not begun a

continuous program of construction nor met milestones included in its construction schedule.

The court noted the company's permit would become invalid only if it discontinued construction for a period of 18 months. However, 18 months had not passed since the company began work at the site.

The state only required Wellington to submit a construction schedule. Though plan approval requires construction be completed in five years, it imposed no penalty for failing to meet other milestones.

Wellington plans to build the $895 million plant at the former Nemacolin Mine. The plant is expected to burn more than 3 million tons of waste coal annually from the Nemacolin and nearby coal refuse piles.

The company claims the project will remove millions of tons of coal waste that is now a major source of water pollution from acid runoff.

It also will create jobs, infuse money into the community through the purchase of materials and services and help support the local tax base, the company said.

The environmental groups have maintained the company is not using the best technology available to control emissions and the plant will only contribute to air pollution in the area.

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