The 4th Circuit Court of Appeals has ruled in the form of an opinion that confirms Duke may not construct or operate Cliffside Unit 6 without first complying with the Clean Air Act’s highly protective standards for hazardous air pollutants. Compliance may be through the minor source permit (a distinction that EPA’s proposed rule will nullify once it becomes final) or by undergoing a maximum achievable control technology (MACT) determination and obtaining MACT limits. These limits help to regulate emissions of the 188 hazardous air pollutants (HAPs) from particular industrial sources such as coal-fired power plants.
This decision affirms the Sierra Club and other plaintiff’s district court victory in the citizen enforcement action against Duke Energy for its construction of Cliffside Unit 6 without a hazardous air pollutant determination. The decision is particularly significant because it affirms Judge Thornburg’s determination that Duke was subject from the beginning to CAA section 112 for its construction of Unit 6, even though it obtained its permit and commenced construction under CAMR. As a result, if it is determined that Unit 6 is a major HAP source, it should be subject to the much stronger new source MACT standards rather than the existing source standards under EPA’s recent proposal.
The decision also specifically upholds the district court’s award of attorney’s fees and costs of over $470,000.
Plaintiffs in the case include the Southern Alliance for Clean Energy (http://www.cleanenergy.org/), the Environmental Defense Fund (http://www.edf.org/), National Parks Conservation Association (http://www.npca.org/), Natural Resource Defense Council (http://www.nrdc.org/), and the Sierra Club (http://sierraclub.org/).
See http://pacer.ca4.uscourts.gov/opinion.pdf/082370.P.pdf for a copy of the ruling.
For additional information contact:
Southern Environmental Law Center
601 West Rosemary Street, Suite 220
Chapel Hill, NC 27516-2356
phone (919) 967-1450
fax (919) 929-9421