Nineteen groups call on North Carolina to send Cliffside’s permit back to the drawing board

In light of a pivotal federal court ruling last month, 19 environmental groups are urging the North Carolina Division of Air Quality to reopen the air quality permit it finalized for Duke Energy’s proposed new unit at its Cliffside power plant earlier this year. The permit, which is based on state and federal regulations that have been invalidated by the court’s ruling, is illegal under the Clean Air Act because it fails to identify or require the most stringent pollution control standards for mercury. In a letter filed with DAQ today, the groups urged the state agency to reopen the Cliffside permit to evaluate the maximum achievable controls for mercury, and then either modify or revoke the permit based on that analysis.

“North Carolina has issued an illegal permit that violates the Clean Air Act and a federal court ruling,” said Gudrun Thompson, attorney with the non-profit Southern Environmental Law Center which submitted the letter to DAQ. “The Division of Air Quality must now go back and do its homework by first identifying the highest achievable level of control for this hazardous pollutant and then requiring Duke to implement it.”

The Southern Environmental Law Center was joined by Environment North Carolina, Environmental Defense, National Parks Conservation Association, Natural Resources Defense Council, North Carolina Waste Awareness and Reduction Network, Sierra Club, North Carolina Chapter, Southern Alliance for Clean Energy, Cape Fear Riverkeeper, Catawba Riverkeeper, Lower Neuse Riverkeeper, New Riverkeeper, Pamlico-Tar Riverkeeper, Upper Neuse Riverkeeper, Watauga Riverkeeper, Waccamaw Riverkeeper, Yadkin Riverkeeper, and Cape Fear Coastkeeper in submitting the letter.

Following a federal Court of Appeals ruling in February, all coal-fired power plants permitted after December 2000, such as Cliffside, must identify the most stringent mercury control technology available and then meet that level of pollution control. At an absolute minimum, new sources must meet the level of control achieved by the best performing existing “source,” or power plant. In comments filed with DAQ in October, environmental groups identified approximately two-dozen existing sources with tighter hazardous pollution control requirements than those required for Cliffside. However, DAQ’s final permit neither identified nor required such controls. Instead, DAQ relied on now-invalidated state and federal regulations to control mercury.

“The federal court clearly confirmed what we told DAQ in October: that the Clean Air Act requires the most stringent mercury controls and that its plans for Cliffside were falling short. Now it’s time for DAQ to take its head out of the sand and realize that it must do more to control this hazardous pollutant before Cliffside can move forward,” said Thompson.

The permit issued by DAQ would allow the Cliffside plant to emit mercury at a rate 10 times higher than the Clean Air Act allows.

Additionally, the permit DAQ approved does not analyze, much less require, maximum pollution controls for 66 other hazardous air pollutants emitted by coal-fired power plants, such as hydrochloric acid, arsenic, dioxins, and other heavy metals. Consequently, the Cliffside permit approved by DAQ does not meet the minimum Clean Air Act requirements for hazardous air pollution, endangering public health and North Carolina’s environment.

The February 8 federal court ruling resulted from a challenge brought by a coalition of 14 states, a dozen national environmental groups, a half-dozen Indian tribes, and four national organizations representing over 300,000 physicians, medical researchers, nurses, and public health advocates challenging EPA’s federal Clean Air Mercury Rule (CAMR). The court ruled that in issuing CAMR, EPA illegally removed coal-fired power plants, like Cliffside, from the list of hazardous air pollution sources that are subject to the Clean Air Act’s most stringent air pollution controls. Though slightly stronger, North Carolina based its own mercury control regulations on EPA’s unlawful CAMR.