Cliffside History

February 2007. In an unprecedented victory for environmental groups, and a major setback for Duke Energy, the North Carolina Utilities Commission (NCUC) agreed to allow Duke Energy to build only one of the two 800 megawatt coal-fired plants they had proposed. In their decision, the commission stated that Duke's predictions of future energy demand failed to meet the burden of proof for building two units.

January 2008. The NC Division of Air Quality (DAQ) issued the final air permit for Duke Energy's 800MW Cliffside expansion over strong opposition from a number of environmental groups and state lawmakers. There is a small silver lining; under the permit's terms, Duke must shut down four existing units which lack modern pollution controls and install scrubbers on an existing fifth unit as well as the new unit. The permit also requires Duke to mitigate the plant's carbon dioxide emissions through retirement of older plants, energy efficiency measures and renewable energy. 

March 2008. A petition before the North Carolina Administrative Court was filed seeking a review of the permits issued by DAQ for the Cliffside expansion. The permits were issued in January and Duke has already begun construction of the proposed plant. The Southern Environmental Law Center (SELC) is arguing that the air permit violates the Clean Air Act, most notably because it fails to impose controls on the massive amount of carbon dioxide to be emitted by the plant.

May 2008. The Sierra Club, NRDC, Southern Alliance for Clean Energy, and National Parks Conservation Association sent Duke a notice that it will file a lawsuit in 60 days to stop Duke's illegal construction at its Cliffside power plant. Duke hasn't done enough to control emissions of mercury and other toxic pollutants in light of a federal appeals court ruling in February that restored power plants to a list regarding 67 hazardous air pollutants, including toxic mercury, that are subject to the most stringent air pollution controls

June 2008, the NC Department of Environment and Natural Resources (DENR) sent a letter advising Duke Energy of the agency's intent to re-open the Cliffside air permit to ensure it includes the most stringent limits achievable for mercury and other hazardous air pollutant emissions in light of a recent U.S. Court of Appeals ruling.  NC DENR plans to initiate a new public participation process and has requested that Duke inform the agency of its intentions in light of the agency's plans.

July 2008. A lawsuit was filed on behalf of environmental groups represented by the Southern Environmental Law Center alleging that Duke Energy is in violation of the Clean Air Act by beginning construction of its new Cliffside plant without first proving it is using the maximum control technology (MACT) available to reduce emissions of mercury and other hazardous air pollutants.

October 14 2008, Duke Energy withdrew its Clean Air Act MACT application to the North Carolina DENR for permit limits on mercury and other hazardous air pollutants to be emitted from the Cliffside plant. In its letter Duke claimed that the new unit will emit less mercury and hazardous air pollutants than the company previously estimated, and thus is not subject to the Clean Air Act's MACT requirements. Duke sent the letter and withdrew its application the day before this issue was to be argued in federal court

December 2, 2008. Federal judge Lacy Thornburg ruled that Duke was in violation of the Clean Air Act (CAA) for failing to adequately regulate toxic air pollution from its proposed Cliffside Unit 6. The judge ruled that under the CAA, Duke is required to perform a MACT analysis to determine how to control mercury and other hazardous air pollutant (HAP) emissions from the new unit to the maximum extent possible. Duke was given sixty days to complete its analysis and stated it plans to appeal the decision.

March 13, 2009, the North Carolina DAQ issued a new construction permit for the new coal unit at Duke Energy's Cliffside power plant, finding that the new unit will be a 'minor source' of hazardous air pollutants. The agency's decision could allow Duke to avoid the public process of analyzing and installing the most stringent controls to reduce hazardous pollutants, such as mercury, under the Clean Air Act, which is the subject of an ongoing lawsuit filed in July 2008.

May 5, 2009, NC WARN filed a motion with the NCUC asking the commission to revoke Duke's certificate of public convenience and necessity for the new coal-fired unit at its Cliffside plant. The motion asks the commission to revoke the certificate because the new unit is no longer in the public interest for several reasons, such as the decline in the probable future growth of electricity use, the requirements of a recently-passed state renewable energy and energy efficiency standard, the expected cost of carbon regulation, the increasing cost of coal and the increasing cancellations of new coal plants across the country.  

Additionally, in late April 2009, the US EPA sent a letter to state regulators questioning the agency's decision to treat the new unit as a minor source of hazardous air pollutants.  EPA's letter focused on one hazardous air pollutant ' hydrogen chloride ' and highlighted the fact that the plant's proposed pollution controls would have to be 99.9 percent efficient in capturing the gas, which is unlikely, in order to stay within its limits. 

As of mid-May 2009, the appeal before the North Carolina Administrative Court in March 2008 seeking a review of the permits issued by NC DAQ for the Cliffside expansion is still ongoing and awaiting the court to rule on a number of pending motions. Construction of the new unit continues, with recent reports stating the expansion is 30% complete.

June 2, 2009, Duke filed an application for a rate increase with the NCUC asking for permission to raise its rates 12.6 percent. In its application, Duke stated that it needs more revenue to continue building the new unit at its Cliffside plant, among other reasons. The current price tag for the new power plant at Cliffside is $2.4 billion and construction continues despite a handful of ongoing legal challenges against the new unit. The commission then scheduled a number of public hearings in fall 2009 on the proposed rate increase.

November 4  2009, the NCUC refused a request by the N.C. WARN to stop the expansion of Duke's proposed Cliffside coal power plant.  NC WARN asked the commission to revoke its 2007 approval of the plant because the expansion is no longer needed, and that Duke is building the proposed plant not to meet the electricity demands of state customers, but for potential sales of wholesale power. The commission denied the request, stating that the circumstances under which it had originally approved the plant had not changed since 2007. 

Back in July 2009, the Clean Air Act MACT challenge to the PSD/construction permit for the Cliffside expansion was dismissed by a federal judge because the same arguments are now being litigated before a state administrative court.  Both sides have appealed the dismissal in the U.S. Court of Appeals for the Fourth Circuit. The appeal of the re-issued PSD/construction permit before the state Office of Administrative Hearings is still ongoing.
From the  Constitutional Accountability Center, this overview of the case which was previously scheduled for August: link

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With appreciation to the Sierra Club for above information: see - Sierra Club