UPDATE: Judge sides with state, Titan in air permit case
The previous lawsuit filed by the Southern Environmental Law Center has been officially rejected by a judge, who on Sept. 23 issued a written order that upheld the state’s original decision to issue an air permit to Titan in 2012.
The order, from Judge Beecher R. Gray of the North Carolina Office of Administrative Hearings, sided with summary motions from the state and from Titan, which joined the lawsuit as a Respondent-Intervenor, dismissing the suit based on the environmental law firm’s “inability to demonstrate or forecast substantial prejudice or harm.”
The order goes on state that the DAQ “did not ‘substantially prejudice the petitioners’ rights,' and that the judge would not rule on alternative bases for summary judgment.
Despite an official decision still pending on whether the
state’s air quality division erred in granting Titan’s previous permit,
environmental groups today announced that they are filing another legal
challenge to contest the company’s permit modification, approved by the
division on Aug. 29.
“The state failed to
uphold its legal responsibility to protect people from avoidable harm by
authorizing increased pollution,” stated a Sept. 18 press release from the
Southern Environmental Law Center, which is representing four local
environmental groups in the case.
Originally received by Division of Air Quality (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 emission limits on two types of particulate matter
Approximately five hundred people, according to DAQ
spokesman Tom Mather, attended a public hearing held by DAQ on Aug. 7, with a
significant majority of attendees and speakers opposed to the emission
increase. They argued the company had already demonstrated in its previous
permit that it could achieve lower emission rates, and that 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
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.
difference is based on the revision to the PM limit that was approved in this
revised permit,” said Geoff Gisler, a staff attorney with SELC stated in a
Sept. 18 interview. “All of those issues that are similar, we are carrying
forward those issues from the previous arguments since [the DAQ’s] flawed
analyses were incorporated into this permit. And we’ve added in an argument
regarding the authorization for the company to emit more pollution when they
can avoid doing so.”
Maria Erwin, a Deputy Clerk for the NC Office of
Administrative Hearings, said in a Sept. 18 phone interview that while her
office had received an email notification and copy of the petition to contest the
DAQ’s issuance of the permit, it was not yet an open case as of that afternoon.
“It has not been assigned to a judge,” Erwin said. “It has
not been entered into our computer [or] assigned a docket number and we have
not received an original petition which we require at this time.”
The petition states, “… without conducting a thorough
analysis of the assumptions relied upon or additional methods of reducing
unnecessary levels of pollution and failing to account for impacts to public
health, DAQ has issued a permit that violates the Clean Air Act as implemented
through the state’s air permitting program.”
Asked whether this air permit challenge would mirror the
process of the previous challenge – which has taken over 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.”
Debbie Elliott, a spokeswoman for Carolinas Cement Company, said that her
client did not have a response for the media as of Sept. 18.