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Another Coal Company in Court

Environmental organizations announced this week that they are suing Duke Energy over its construction of a new coal-fired power plant at the Cliffside Steam Station near Rutherfordton, N.C. The power plant was not designed to meet legal limits on its emissions of hazardous air pollutants, such as mercury, arsenic and dioxins. The lawsuit will be filed in federal district court in Asheville, N.C., by the Southern Environmental Law Center and the Natural Resources Defense Council on behalf of the Southern Alliance for Clean Energy, the Sierra Club, Environmental Defense Fund, and the National Parks Conservation Association. It seeks to stop construction of the new Cliffside plant until regulators determine that the plant will meet legal pollution limits and until Duke’s permit for the plant includes the pollution limits as conditions of operation.

“Every day that Duke continues to build this plant it flouts the law and exposes the public and its shareholders and ratepayers to unnecessary risk,” said John Suttles, Senior Attorney with the Southern Environmental Law Center. “The Clean Air Act is clear: A properly performed analysis could change the way this plant is built and operated, and Duke must examine the best way to control mercury and other pollutants before it begins construction. By continuing to build this plant without meeting these Clean Air Act requirements, Duke creates an unacceptable choice—build a plant that exposes people and the environment to excessive levels of toxic air pollution or put its shareholders and ratepayers on the hook for the cost of fixing a plant that threatens people’s health.”

The Clean Air Act requires Duke to control its emissions of mercury and other hazardous pollutants to the maximum extent possible in order to protect people and the environment from the serious adverse effects of toxic air pollution. At a minimum, Duke must show that the proposed Cliffside plant will meet the pollution control level of the best performing similar plant in the nation. Duke must then implement controls that meet or exceed that level of control. In addition to mercury, Duke must analyze and determine the most stringent level of pollution control achievable for all hazardous air pollutants the facility would emit, which include 66 other toxic substances such as hydrochloric acid, arsenic, dioxins, and other heavy metals. These pollutants can cause serious and irreversible adverse effects to people’s health, including cancer, heart disease, stroke, and neurological impairment. In fact, one of those pollutants, dioxin, is among the most potent carcinogens in the world. The assessment, if performed correctly, will result in the most stringent emissions limitations achievable for mercury and the other hazardous air pollutants at the new unit.

At the state’s request, last month Duke agreed to take a “voluntary” look at its hazardous air emissions. But the company did not agree that it had to comply with the Clean Air Act’s stringent legal requirements designed to control toxic air pollution and refused to halt construction of the unit in the meantime to make sure that it was constructing its plant in a way that would maximize reduction of toxic air emissions, as the law requires. Furthermore, Duke only allowed two weeks for the analysis. The Secretary of DENR has estimated that a proper MACT analysis would take between 3 and 6 months.

“Duke’s proposal to voluntarily look at toxic emissions simply does not fly,” says Patrice Simms, a senior attorney with the Natural Resources Defense Council. “An effectively standardless and unenforceable voluntary assessment is no substitute for the mandatory provisions of the Clean Air Act, which not only require rigorous analysis and stringent limits on mercury and all other hazardous air pollutant emissions, but ensure the public’s right to full participation in the standard-setting process.”

“Mercury pollution poses serious health risks–especially to women and unborn babies,” Molly Diggins, State Director of the North Carolina Sierra Club added. “A rushed analysis puts us all at risk. We need to be sure we have the best possible plan to protect our communities from mercury pollution.”

In early February, a federal court ruled that EPA violated the Clean Air Act when it removed oil- and coal-fired power plants from the list of hazardous air pollution sources that are subject to the Act’s most stringent air pollution controls. The appeals court ruling confirmed that air permits for new coal plants such as the new Cliffside unit must be based on a case-by-case analysis of the maximum achievable control technology for mercury and other hazardous air pollutants and that the analysis be performed in advance of construction. Duke, however, has not heeded the ruling and has instead forged ahead with construction of the new Cliffside plant without the required analysis, which could require fundamental changes to the plant’s design.

“It’s hard to understand why Duke Energy believes clean air laws don’t apply to them,” said Michael Regan, southeast climate and air director with Environmental Defense Fund. “There is absolutely no question Duke has an obligation to provide maximum protection from harmful mercury emissions that threaten our children’s health and welfare.”
“Travelers to the Great Smoky Mountains National Park expect healthy wildlife and clean air when they visit,” said Program Analyst Bart Melton from NPCA’s Southeast office. “Duke cannot be allowed to illegally shower toxic mercury and other pollutants over the Smokies. Americans deserve to breathe clean air when they visit parks, and expect the government to enforce clean air laws to make that happen.”

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