On March 5, the Southern Environmental Law Center and 18 other organizations sent a 10-page letter to Keith Overcash, director of the Division of Air Quality, urging the agency to modify or revoke Cliffside's air permit. The permit is illegal under the federal Clean Air Act, the letter charges, because it fails to identify or require the most stringent pollution-control standards for mercury emissions.
The move was made possible by a recent court victory for environmental groups, when a federal appeals court in Washington, D.C., ruled that the Environmental Protection Agency's mercury rule violated the Clean Air Act. A coalition of national environmental groups, American Indian tribes, states and health organizations had challenged the rule. The appeals court also found that the EPA had illegally removed coal-fired plants from a list of pollution sources that must adhere to "maximum available control technologies." Ten days after the state issued an air permit for Cliffside, whose mercury-control requirements were based on the EPA standard, the rule was declared null.
The Division of Air Quality "needs to go back, reopen the permit and perform this maximum-available-control-technology analysis," says Gudrun Thompson, a staff attorney for the Law Center. "The Clean Air Act requires [it]. DAQ has not done this ... analysis. And the limits they've imposed are not consistent with MACT. And without that, the permit is flawed and illegal."
According to the petition, Duke's air permit allows the Cliffside plant to emit 10 times as much mercury as the Clean Air Act permits. Mercury, a neurotoxin, is linked with developmental delays and neurological damage. Rain carries airborne mercury into waterways, where it binds with other chemicals and accumulates in fish.
Among the nonprofits signing on to the petition were Environmental Defense, the Southern Alliance for Clean Energy and the National Parks Conservation Association, all of which have offices in Asheville. On Jan. 29 (the day the permit was issued), the NPCA issued a statement predicting that the new coal-fired generator would "increase hazy skies, worsen acid rain, and deposit large amounts of toxic mercury" in the Great Smoky Mountains National Park.
"Our side is not backing down one inch, either in the legal or the public arena," proclaims Jim Warren, executive director of the Durham-based N.C. Waste Awareness and Reduction Network, another petitioner. "If the state doesn't take action on it, there are going to be a number of appeals coming in soon from all angles."
The state has not yet indicated how it plans to respond. "We're reviewing that letter and the request right now, but we don't really have an answer yet as to what we're going to do," explains Tom Mather, public information officer for the Division of Air Quality.
This is not the only attempt to topple Cliffside. Warren's organization recently agreed to settle a lawsuit it had filed against Duke Energy for failing to study the cumulative impacts Cliffside would have on the Broad River watershed. After the utility agreed to prepare the watershed study and make it available to N.C. WARN members, the nonprofit dropped the suit.
Meanwhile, two Western North Carolina environmental groups -- the Canary Coalition and Appalachian Voices -- have teamed up to file a federal lawsuit. This one charges that the U.S. Department of Energy violated the law when it allocated $1 billion tax credit for the construction of nine new coal-fired plants. A portion of the money went to Duke Energy for the Cliffside project. Invoking the National Environmental Policy Act, this suit maintains that the DOE should have conducted an environmental-impact assessment first.