Environmental Groups File Suit Over Illegal Cliffside Air Permit

Date:   March 27, 2008
Contact:   Stephanie Kodish, Managing Attorney, Coal Litigation Project, National Parks Conservation Association, 865-329-2424, ext. 28
Gudrun Thompson, Staff Attorney, Southern Environmental Law Center 919-967-1450
Michael Regan, Southeast Climate & Air Policy Manager, Environmental Defense Fund, 919-881-2601, ext. 2917

Environmental Groups File Suit Over Illegal Cliffside Air Permit

Power Plant Would Severely Degrade Air Quality at Great Smoky Mountains National Park

Raleigh, N.C. - On behalf of four environmental groups, the Southern Environmental Law Center will file a legal challenge today against the state of North Carolina for its issuance of an illegal air quality permit that allows Duke Energy to build a polluting new coal-fired unit at the company's Cliffside power plant. SELC filed the contested case petition against the North Carolina Division of Air Quality on behalf of Environmental Defense Fund, Southern Alliance for Clean Energy, National Parks Conservation Association, and the Sierra Club.

"State and federal law entrust the Division of Air Quality with a duty to protect public health and the environment from the dangers of air pollution.  In issuing this permit, DAQ failed to carry out this duty.  In fact, DAQ seems to think its job is to help greenlight this project for Duke. As a result, the agency has issued an illegal permit," said Gudrun Thompson, an attorney with the Southern Environmental Law Center.

As permitted, the new Cliffside unit would lock in a commitment to outdated, dirty coal technology over the likely 50-year lifespan of the unit, and would contribute to global warming, smog and soot pollution, as well as mercury pollution in our rivers and lakes.

"Other states are lacing up their track shoes and racing ahead to clean energy, but this old-school coal plant will put North Carolina at the back of the pack," said Michael Regan, Southeast climate and air policy manager for Environmental Defense Fund.  "The pollutants that will pour out of Cliffside are bad for our health and bad for the environment.  Permitting a dirty coal plant in 2008 is a bad idea, plain and simple."

In the petition, the groups contend that the permit is illegal for three major reasons:

First, DAQ failed to analyze control technology or set emissions limits for the greenhouse gas carbon dioxide (CO2), as both the Clean Air Act and state law require. The permit does include a "greenhouse gas reduction plan," designed by Duke, but as written, it is riddled with loopholes that could allow the company to never reduce CO2 emissions. In fact,  DAQ is not requiring Duke to actually reduce its carbon footprint at all and is instead allowing Duke to build a conventional coal plant that does not allow for capture of carbon dioxide.

"Issuing this permit represents a historic failure on the part of DAQ to provide leadership on reducing global warming pollution in North Carolina. The Supreme Court clearly gave DAQ the authority to deny this permit and they chose to look the other way. DAQ became an instrument of Duke Energy's PR spin on 'carbon neutrality' when in fact this plant will be one of the state's largest global warming pollution sources emitting over 6 million tons of carbon dioxide annually," stated Stephen Smith, executive director of Southern Alliance for Clean Energy.

Second, the permit fails to require maximum control of toxic mercury and other hazardous air pollutants  in violation of the federal Clean Air Act and a recent federal court decision. Instead, the permit relies on a mercury control standard that is less stringent than federal law requires and does not even attempt to regulate more than 60 other hazardous air pollutants, such as dioxins, arsenic and cadmium, emitted by coal-fired power plants like Cliffside.

"The Appeals Court's recent ruling makes it clear that Duke's permit would allow about 10 times more mercury pollution into the air every year than the law allows," according to SELC attorney John Suttles.  "Mercury is a dangerous neurotoxin; every year nearly 14,000 children in North Carolina are born with elevated mercury levels that put them at risk of mental retardation, lowered intelligence, and learning disabilities," he added.

Third, the permit issued by DAQ allows Duke to avoid review of soot-forming sulfur dioxide (SO2) and ozone forming nitrogen oxide (NOX) based on pollution reductions already planned at the existing Cliffside units. However, according to a long-standing EPA enforcement action for Clean Air Act violations, those units are operating illegally, without the necessary permits and without installing the best available control technology. Therefore, pollution reductions from these units are not able to be used to avoid additional permit review. DAQ also failed to require Duke to analyze the effect of those pollutants on the Great Smoky Mountains National Park and other sensitive natural areas in Western North Carolina. 

"Duke's emissions would increase hazy skies in the Smokies, worsen acid rain that is already killing many species of plants and trees, and deposit large amounts of toxic mercury in the park, which is harmful to wildlife and endangered species," said Stephanie Kodish, managing attorney for the coal litigation project with the National Parks Conservation Association. "Great Smoky Mountains is already one of the most polluted parks in the nation, due largely to emissions from coal-fired power plants. Moving forward with Duke's power plant will further degrade its air quality and threaten the health of visitors."

Around the country citizens and the state regulators entrusted with protecting the quality of their environment are standing up against proposals for dirty power plants. Last year, Kansas denied plans for a coal-fired power plant because of the impact the plant's emissions would have on global warming. Plants in Texas, Florida, and other states have also been shelved for environmental and economic reasons. Recently, major Wall Street investment firms announced standards that will make it harder for companies to get financing to build coal-fired plants.

"Cliffside is a nationally significant coal fight" said Bruce Nilles, director of Sierra Club's National Coal Campaign.  "Duke Energy CEO Jim Rogers has gained national prominence with his repeated calls for action on global warming.  But his green rhetoric doesn't match Duke's actions. The nation needs businesses and industry to take a leadership role in fighting global warming, but Cliffside shows that Duke is not yet ready to take on that role."



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