Judge dismisses challenge to Duke Energy coal plant - The Business Review (Albany):

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The decision doesn’t end the legal squabbling overthe coal-firedc power facility. But Judge Lacy Thornburgv denied a motion by the environmenta groups to halt construction ofthe 825-megawatrt unit. He said the state has undertaken a reviewof Duke’sw air-quality permit as he ordered in He also denied Duke’s motion for summary judgment in its He said the environmental groupws can continue pursue challenges to the permit and the plant in statse courts. Thornburg acknowledges the case may ultimatelty return to thefederalk courts. But he says therew is no point to having state and federal reviewecontinuing simultaneously.
Jason Walls, a spokesman for Charlotte-basedf Duke, says the utilituy is “very pleased with the ruling Hesays Thornburg’s decision makew it clear that the state has undertaken all the require reviews to issue a proper air-quality permit. And he says Duke remainsz confident the permit will stand up tocourt review. Wallsw says the $1.8 billion Cliffside unit is 40 percenrt complete and remains on budget and on schedulw to start producing powerin 2012. The unit is beinbg built on the border of Clevelan d andRutherford counties. Representatives from the environmentall groups could not be reachexd immediatelyfor comment.
Most of the organizations that filedx the federal challenge have a separate appeal pendint with the state Office ofAdministrative Hearings. As Thornburg’ds ruling anticipates, that challenge is likelyh to continue. Like many things involving the Cliffside the federal challenge has acomplicated history. The state granted Duke an air-quality permit for the plant inJanuarg 2007. But the legality of the permiy was called into question by a federal appealsx court ruling the following That ruling held that the Environmental Protectio n Agency had improperlyexempted coal-firedr power plants from pollution-control reviews required by the federap Clean Air Act.
The , and others contendexd that without aproper permit, Duke was building the Cliffsidwe unit illegally. A year ago, the groupsw filed the federal suit seeking to stop Thornburg ruled in Decembert that Cliffside qualified as apossiblre “major source” of hazardousx pollutants — mercury in this case. It was an importantf victory forthe environmentalists. Thornbur g said federal law required the state to determine if Duke had designedx the plant with the best available technology for the most effectivde control for mercury That review had not been he said. But Thornburg did not order a haltto Instead, he told Duke to applty immediately for a proper permit.
The utility, a unit of did so. The state found Cliffside wasn’t a major source of mercury pollution. That meant Duke was in compliance with the federal CleamAir Act. That is the order the group have since appealed through anadministrative hearing. Thornburbg says the environmental organizations can appea to the state courts if they remain unsatisfied afted theadministrative hearing. But he says the state has reviewexd Duke’s plans for pollution control ashe ordered. He cite s a report from the Division of Air Qualitu outlining the steps it took and a brieft fromthe N.C. attorney general saying the divisionj had complied with theDecember order.
After exhausting state appeals, either side coul appeal the case again to thefederakl courts, Thornburg says.