Duke to fight suit aimed at stopping power plant

CHARLOTTE, N.C. — Duke Energy Corp. said Thursday it will fight any attempts to stop construction of a new coal-fired power generator in western North Carolina, arguing it was issued a "legal, valid permit" by the state's Division of Air Quality.

The company's comments came a day after the Southern Environmental Law Center asked a federal judge to halt construction of the new unit until Duke proves it's using the best technology to stop hazardous pollution, which it argued is required by the federal Clean Air Act.

Duke began construction of the $2.4 billion, 800-megawatt generator in late January, a day after the state issued its final air quality permit. When the new unit opens in 2012, Duke will close four of its five older coal plants at Cliffside — a move the company said will reduce carbon dioxide, a greenhouse gas that contributes to global warming.

"Any delay in constructing this new unit means that the retirement of 1,000 megawatts of older coal-fired units will be delayed, and that these older units would have to run more to meet rising customer demands and growth," spokeswoman Marilyn Lineberger said. "Duke Energy does not see how delaying those actions can benefit the need for reliable, affordable, clean electricity."

But Gudrun Thompson, a staff attorney for the environmental advocacy group, said Duke's argument that it has a legal permit is incorrect, noting her group is challenging the state's decision to issue the license through a separate court action.

Thompson filed the lawsuit Wednesday in U.S. District Court in Asheville on behalf of five environmental groups, including the Sierra Club. No hearing date has been set, but its lawsuit requested that construction be halted stopped until the case is resolved. The lawsuit is based in part on a recent federal appeals court ruling involving power plant emissions, including mercury.

"I think it's disingenuous for Duke to suggest that we are now trying to delay construction of this unit when we're just trying to get them to comply with the law," Thompson said. "And a delay of a few months to complete this analysis would not be a threat to reliability."

The U.S. Court of Appeals for the District of Columbia Circuit in February found that the U.S. Environmental Protection Agency violated the Clean Air Act when it scrapped a policy that required utilities to install the maximum available technology to capture mercury — a neurotoxin that can damage developing brains of fetuses and very young children.

The five coal-fired units at Cliffside emit about 157 pounds of mercury a year. Duke officials have said the new generator will use equipment that will reduce mercury by 90 percent, but opponents said technology exists that can reduce emissions by up to 98 percent.

The court ruling also makes it clear that under the Clean Air Act, utilities have to identify and use maximum pollution control devices available for other hazardous pollutants — and that wasn't done with Cliffside, posing a "serious threat to the people and the environment," the lawsuit said.

The state last month asked Duke to provide more details about its plan to control mercury and other hazardous air pollutants from the new unit. Duke recently filed the assessment with the state, which posted the study on its Web site. But environmental groups are skeptical, saying a full analysis typically takes up to a year to complete.

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