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Titan wins in state court, groups challenge new permit

Sep, 26 2013

A recent challenge to Titan’s newly-altered air permit was followed this week by a vindication of the company’s previous air permit five days later.

The Southern Environmental Law Center, representing local environmental groups opposed to the controversial cement plant, filed a petition challenging the modified air permit, which was approved by the N.C. Division of Air Quality (DAQ) on Aug. 29. 

Geoff Gisler, an attorney with SELC said in a Sept. 18 interview that the main difference between the new lawsuit and the previous one centered on the company’s request to increase its annual emissions of fine and coarse particulate matter (PM), a criteria pollutant consisting of microscopic particles of pollution.

“All of those issues that are similar, we are carrying forward from the previous arguments since those flawed analyses were incorporated into this permit,” Gisler said. “And we’ve added in an argument regarding the authorization for the company to emit more pollution when they can avoid doing so. That’s the primary difference.”

Originally received by DAQ on April 9, the permit application from Carolinas Cement Company, a subsidiary of Titan Cement, had sought to extend the company’s construction deadline in addition to raising maximum PM emission limits. The reason for the extended deadline, according to company officials, was the original permit’s stipulation that the company begin construction within 18 months of its issuance. Ongoing litigation had produced financial uncertainty, which precluded the company from investing in the physical construction of the plant.

Approximately 500 people, according to DAQ spokesman Tom Mather, attended a public hearing to address the modified permit held by DAQ on Aug. 7. Opponents to the plant argued the company had already demonstrated in its previous permit that it could achieve lower emission rates, and the state was not fulfilling its legal obligation to hold the company to Best Achievable Control Technology for PM emissions. Company officials responded that the changes were necessary in order to bring their permit in compliance with federal law, although Mather said the company was not legally bound to change that part of their permit.

The revised permit raises the company’s fine PM limit by 22 tons per year, and raises its coarse PM limit by 10 tons per year.

In part, the new petition states, “DAQ failed to demonstrate that the previous permit limit was no longer achievable at the Facility,” referring to a change in one of the pollution control methods specified in the modified air permit.

Asked whether this air permit challenge would mirror the process of the previous challenge — which has taken more than 18 months to resolve — Gisler replied that they are still working out their strategy.

“It’s a source of dispute right now between the parties,” he said. “We believe the appropriate course is to combine the three permit challenges together because they do deal with the same circumstances and DAQ has simply re-adopted its flawed analyses in the last couple revisions, with the obvious change with the PM limit.”

The previous lawsuit filed by SELC was officially rejected on Sept. 23 by a judge who issued a written order that upheld the state’s original decision to issue an air permit to Titan in 2012. That case will now go to the N.C. Environmental Management Commission. Gisler said the commission could take up the case as early as November or later next year.

The order, from Judge Beecher R. Gray of the N.C. Office of Administrative Hearings, dismissed the first petition based on the environmental law firm’s “inability to demonstrate or forecast substantial prejudice or harm.”

The order goes on to state the judge would not rule on alternative bases for summary judgment.

Anne Hollowell, an administrative law assistant, said in a Sept. 24 interview that the new case had also been assigned to Judge Gray.

Asked how SELC plans to receive a different decision from the same judge, Gisler responded, “All that is still being hashed out. … We’re not exactly starting from scratch, but there are new things that were introduced in the revised permit that we believe need to be addressed at the administrative level before a decision can be made.


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