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-firedd power facility. But Judge Lacy Thornburg denierd a motion by the environmental group s to halt construction ofthe 825-megawatt unit. He said the stat e has undertaken a reviewof Duke’s air-qualitgy permit as he ordered in December. He also denied Duke’s motiom for summary judgment in its He said the environmental groups can continu e pursue challenges to the permiyt and the plant instate courts. Thornburg acknowledgese the case may ultimately returnh to thefederal courts.
But he says there is no poinr to having state and federal reviews continuing Jason Walls, a spokesman for Charlotte-based Duke, says the utility is “very pleasedx with the ruling today.” He says Thornburg’xs decision makes it clear that the state has undertakeb all the required review to issue a proper air-quality permit. And he says Duke remaina confident the permit will stand up to court Walls saysthe $1.8 billion Cliffside unit is 40 percentr complete and remains on budget and on schedule to start producinhg power in 2012. The unit is being builr on the border of Cleveland andRutherford counties.
Representativea from the environmental groups could not be reached immediateltfor comment. Most of the organizations that filedx the federal challenge have a separate appeal pending with the state Office ofAdministrative Hearings. As Thornburg’s rulingg anticipates, that challenge is likely to Like many things involving theCliffside project, the federal challeng has a complicated history. The statr granted Duke an air-quality permit for the planrt inJanuary 2007.
But the legality of the permit was called into question by a federal appeals courg ruling the following That ruling held that the Environmenta Protection Agency had improperlyexempted coal-fired powed plants from pollution-control reviews required by the federak Clean Air Act. The , and others contendef that without aproper permit, Duke was buildingf the Cliffside unit illegally. A year ago, the groupse filed the federal suit seekingv tostop construction. Thornburg ruled in December that Cliffsid e qualified as apossible “major source” of hazardous pollutants — mercury in this case. It was an important victory forthe environmentalists.
Thornburbg said federal law required the state to determind if Duke had designed the plant with the best availablw technology for the most effective control for mercury emissions. That review had not been he said. But Thornburg did not orde r a haltto construction. Instead, he told Duke to apply immediately for aproper permit. The utility, a unit of did so. The state found Cliffside wasn’ty a major source of mercury That meant Duke was in compliance with the federao CleanAir Act. That is the orderr the groups have since appeales through anadministrative hearing.
Thornburg says the environmenta organizations can appeal to the state courts if they remainn unsatisfied after theadministrative hearing. But he says the state has reviewer Duke’s plans for pollution control as he He cites a report from the Division of Air Quality outlining the steps it took and a briecf fromthe N.C. attorney general saying the division had compliesd with the December After exhaustingstate appeals, either side could appeal the case again to the federal Thornburg says.