Stacked Deck. Modified plants should trigger upgrades, state claims. (Photo courtesy of Tennesse Valley Authority)

North Carolina officials plan to take the U.S. Environmental Protection Agency and the Tennessee Valley Authority to court to stop out-of-state coal-fired powerplants from polluting North Carolina’s air.

Attorney General Roy Cooper notified EPA in a Nov. 19 letter that the state will sue to force the agency to act on a clean air petition filed in March. The state asked EPA to mandate a remedy for nitrogen oxides and sulfur dioxide emissions from coal-fired generating units in 13 states located upwind of North Carolina. EPA’s deadline for action was Nov. 18.

The agency will answer the petition once it completes work on the final Clean Air Interstate Rule due out by Dec. 31, says Carla Oldham, a scientist with EPA’s office of air quality planning and standards. The rule, which will require states to reduce SO₂ and NOx emissions that contribute to nonattainment problems downwind, will provide analysis for action on the North Carolina petition, she says.

In a letter to TVA, Cooper says the federal utility violated new source review requirements when it modified units at nine coal-fired plants. "As a result, these plants have operated without undergoing the procedures necessary to determine whether further emissions controls are necessary," Cooper says in the Nov. 10 letter.

TVA officials say that routine maintenance was performed at the plants, not modifications, which would have triggered new source review requirements to install pollution control equipment. "TVA has complied with the Clean Air Act, including new source review,’’ says John Shipp, vice president of environmental policy and planning. The work in question was performed between 1982 and 1996. Cooper says the plants significantly contribute to air quality problems in North Carolina.

The state filed suit after recent federal court actions leave in question how TVA’s compliance with new source review will be effectively reviewed, Cooper says. The 11th Circuit Court of Appeals ruled as unconstitutional a 1999 EPA administrative compliance order that determined the maintenance performed on 14 TVA units between 1977 and 1999 was a major modification. This should have triggered the installation of best available control technology. EPA appealed the lower court’s decision to the U.S. Supreme Court, which refused to hear the case. It would cost the utility between $200 million and $500 million for each of the 14 units cited in the 1999 order, Shipp says.