Press Release | May 6, 2008

Environmental groups to Duke: Stop illegal construction of Cliffside or face lawsuit

On behalf of four environmental groups, the Southern Environmental Law Center will put Duke Energy Carolinas on notice today that the company is violating the law by constructing a new unit at its Cliffside power plant without complying with Clean Air Act standards for mercury and other hazardous air pollutants (HAPs) and that continuing to do so could result in a lawsuit. SELC will send the 60-day notice letter to Duke on behalf of the Natural Resources Defense Council, Southern Alliance for Clean Energy, National Parks Conservation Association, and the Sierra Club.

“Duke Energy is building a new unit at Cliffside without addressing hazardous air pollutants, in violation the Clean Air Act and a federal court ruling,” said Gudrun Thompson, attorney with the non-profit Southern Environmental Law Center. “We’re putting Duke on notice that this illegal construction activity must stop while the company figures out how to achieve maximum control of hazardous pollutants —otherwise the company faces a lawsuit.”

The Clean Air Act requires the air permitting process for a new coal-fired power plant to include an analysis and determination of the most stringent level of pollution control achievable with available technology for all hazardous air pollutants the facility would emit, which include not only mercury but 66 other toxic substances such as hydrochloric acid, arsenic, dioxins, and other heavy metals.  This is known as a “maximum achievable control technology” or “MACT” analysis. 

In early February, a federal court ruled that EPA violated the Clean Air Act when it attempted to remove 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 means 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 available control technology for mercury and other hazardous air pollutants.  Despite this clear legal obligation, the Cliffside permit does not contain a MACT determination or emissions limits for these pollutants.  As a result, Duke’s ongoing construction of Cliffside Unit 6 is unlawful.  Duke began construction of a new coal-fired unit Cliffside on January 30, the day after it obtained an air quality permit from the North Carolina Division of Air Quality (“DAQ”).   

Today’s notice of violation to Duke comes as environmental groups launch a national effort to put new coal plants in Arizona, Georgia, Kentucky, Missouri, Texas and Wyoming on notice for illegally constructing new coal-fired power plants without the necessary MACT determinations for mercury and other hazardous air pollutants.

“Mercury pollution is a danger to everyone, and especially to infants, children and the unborn.  Duke Energy can and should do better by its neighbors—and the law says they must,” said Molly Diggins, state director of the North Carolina Sierra Club.

In March, several environmental groups filed a legal challenge against the State of North Carolina for, among other things, permitting the Cliffside plant without analyzing and requiring mercury and hazardous air pollutant controls. The groups contend that the North Carolina Division of Air Quality (DAQ) must rescind the final Cliffside air permit, go back to the drawing board to conduct a case-specific MACT analysis, and issue a revised draft permit for public comment before finalizing a new permit.

“Duke's emissions from the Cliffside plant will likely do irreparable damage to the Great Smoky Mountains National Park and surrounding wilderness areas for decades to come. The large amounts of toxic mercury dumped into the Park’s waters will threaten wildlife, including endangered species,” said Stephanie Kodish, clean air counsel with the National Parks Conservation Association. “Coal fired power plants have already helped Great Smoky Mountains National Park be one of the most polluted parks in the nation. Duke’s power plant will only make this problem worse.”

Construction of the new Cliffside unit would lock in a commitment to outdated, dirty coal technology over the likely 50-year lifespan of the unit. Mercury emitted from power plants deposits in water bodies, where it is converted to its most toxic form, methylmercury.  Methylmercury exposure from eating contaminated fish is linked to permanent damage to the central nervous system.

“The evaluation of hazardous air pollutants is critically important,” says Patrice Simms, a Senior Attorney with NRDC. “Especially, given the seriousness of the potential health implications – precisely what the MACT provisions of the Act are intended to address.”

Developing fetuses, breast-fed infants and children exposed to methylmercury are at risk for lowered intelligence and learning disabilities. Adults exposed to even low amounts of methylmercury also may be at higher risk for altered sensation, impaired hearing and vision, and motor disturbances. EPA estimates that as many as 600,000 children are born each year with unhealthy levels of methylmercury in their bodies. In addition, coal plants can emit dozens of different carcinogens, including arsenic, chromium, beryllium, cadmium, nickel, and dioxin.

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