Federal court ruling will send Cliffside air permit back to the drawing board for more stringent mercury controls

A federal court ruling today will require the N.C. Division of Air Quality to re-evaluate Duke Energy’s plans to control mercury at the utility’s recently permitted Cliffside unit. The D.C Circuit Court of Appeals ruled today 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. As a result, air permits for new coal plants such as Cliffside must be based on a case-by-case analysis of the maximum available control technology for mercury and other hazardous air pollutants.  

The N.C. Division of Air Quality (DAQ) issued a final air permit for the new Cliffside unit just last week, on January 28 that allows the new Cliffside unit to emit 133 pounds of mercury each year. In January, SELC notified DAQ of the anticipated federal decision and urged the Division to consider these expected mercury regulations when developing its final permit.  

However, DAQ’s permit does not require a a case-specific analysis of maximum available control technology (MACT) for mercury, and the permit does not require Duke to install mercury-specific pollution control equipment.  The D.C. Circuit’s ruling means that 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.

Because mercury is classified as “hazardous,” the Clean Air Act requires EPA to identify its sources and develop the most stringent standards to control emissions from those sources. The court ruled today that EPA acted illegally when it took power plants off the list of hazardous pollution sources when issuing its Clean Air Mercury Rule.

Released in May 2005, the federal Clean Air Mercury Rule exempted power plants from the most stringent Clean Air Act requirements to control mercury and instead instituted a flawed “cap and trade” scheme, which allows facilities to trade mercury pollution credits with other less-polluting power plants. As a result of the D.C. Circuit’s ruling today, EPA and the states must now develop tougher regulations to control mercury and other toxic pollutants from new and existing power plants, the leading source of mercury pollution in the country. Today’s ruling could result in a 95 percent or greater reduction of mercury emissions from coal-fired power plants.

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.

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 than 600,000 children are born each year with unhealthy levels of methylmercury in their bodies. Despite this figure, EPA adopted the flawed mercury rule ignoring the counsel of its own Children’s Health Public Advisory Committee and thousands of health professionals nationwide.