A New York Supreme Court judge on August 15 said Competitive Power Ventures (CPV) can resume startup tests at its new natural gas-fired power plant in Wawayanda.

The decision Wednesday from Judge Roger D. McDonough came one day after CPV sued New York’s Department of Environmental Conservation (DEC). CPV is seeking an injunction allowing it to operate the Valley Energy Center as it awaits resolution of a dispute regarding the plant’s air permits. The DEC on August 1 told CPV the plant’s original state-issued air permit expired on July 31 and would not be renewed, and the plant would need a Title V air permit from the Environmental Protection Agency (EPA) in order to operate.

A Title V Clean Air Act permit requires a more-comprehensive application with more time for public input, including at least 45 days for review by the EPA.

The DEC in a statement Wednesday said, “While DEC is disappointed, the order’s expedited briefing process will provide us with an opportunity to vigorously litigate this issue and get a ruling on the merits as to whether CPV can continue to operate without a Title V permit. DEC is confident we will prevail in this matter and that CPV will need to apply for, and obtain a Title V permit to continue to operate.”

Tests Set to Resume

CPV on Wednesday said tests at the $956 million, 630-MW plant are expected to resume as early as August 16. The plant began operating on a test basis using diesel fuel in February and had planned to begin full-time commercial operation as soon as this month before the DEC stepped in. DEC Regional Director Kelly Turturro in an August 2 letter to CPV said the company would face an initial fine of $18,000 and a daily levy of up to $15,000 if the plant operated without the Title V permit.

The plant originally was scheduled to begin commercial operation in February but that was delayed because the DEC had not finished permitting Millennium Pipeline Co.’s Valley Lateral Pipeline, which supplies natural gas to the plant. The Federal Energy Regulatory Commission (FERC) gave Millennium permission to operate the 7.8-mile pipeline in July, more than three years after Millennium submitted its application to FERC. The plant began tests of its gas and steam turbines at the plant using natural gas on July 9.

The power plant has been opposed by several groups, including many state lawmakers, and at least one group has held weekly protests outside the plant since construction began. City officials in Wawayanda cited the plant for noise violations in March.

Tom Rumsey, CPV’s vice president of external affairs, in a statement Wednesday said, “We are gratified by the court’s decision and look forward to restarting the commissioning process as soon as possible. We look forward to working with the NYDEC in a productive manner as we work through remaining steps to becoming fully operational.”

CPV officials have said it was their understanding they had up to a year after beginning full-time commercial operation to apply for the Title V permit. After the DEC’s order earlier this month, CPV requested a hearing on the matter, which would be heard before an administrative law judge who would be assigned to the case in the next month. CPV on Tuesday then sued DEC over denial of the permit and the agency’s order to stop testing at the plant, seeking the injunction to allow testing to continue.

Judge’s Order Means Plant Can Operate Under Appeal

The judge’s order issued Wednesday means the DEC cannot enforce its order, and CPV can operate the plant while the case goes through the appeals process.

CPV in its lawsuit said the power plant would lose about $220,000 each day it is not in operation. An affidavit from Daniel Nugent, the company’s senior vice president of engineering and construction, said the plant must be operating by September 14 in order to avoid defaulting on its $680 million construction loan. The DEC has until that date to respond to the judge’s order issued Wednesday.

Darrell Proctor is a POWER associate editor (@DarrellProctor1, @POWERmagazine).