Duke Energy and the U.S. Environmental Protection Agency (EPA) last week filed a joint motion calling on U.S. Middle District Court of North Carolina trial Judge Frank Bullock to rule in favor of Duke Energy in the government’s Clean Air Act “New Source Review” (NSR) enforcement litigation brought against the company.

Duke said the joint motion for entry of final judgment notifies Bullock that the parties agree the plaintiffs cannot prove their case against Duke Energy at trial. The joint motion was signed by Duke Energy and the plaintiffs including EPA, the U.S. Justice Department (DOJ) and plaintiff-intervenors: Environmental Defense, North Carolina Sierra Club and North Carolina Public Interest Research Group.

If accepted by the court, the joint motion will result in a final order from Bullock in favor of Duke, effectively ruling the company did not violate the Clean Air Act. The final order will also close, without a trial, the enforcement litigation before Bullock. A trial date is currently set for July 6, 2004.

The joint motion provides the government an option to appeal elements of the litigation to the U.S. Fourth Circuit Court of Appeals.

“With the filing of this joint motion, we’re moving a big step closer to resolving this matter in a way that is favorable to Duke Energy,” said Fred Fowler, president of Duke Energy. “Prevailing at the federal trial court level validates Duke Energy’s position that we have operated in compliance with the Clean Air Act’s NSR rules.”

In December 2000, EPA filed suit against Duke, alleging numerous violations of the Clean Air Act’s NSR rules. At issue was routine maintenance, repair and replacement work performed at eight coal-fired power plants between 1988 and 2000. The plants are operated by Duke Power, Duke’s franchised electric utility.

In August 2003, Bullock issued an opinion on the case after both parties had filed various motions for summary judgment. While the judge denied requests for summary judgment, he defined the legal standards for applying NSR rules to maintenance, repair or replacement projects. Bullock’s findings were consistent with Duke’s understanding of the NSR program, the utility said.

Duke noted that it continues to reduce emissions from its coal-fired plants. In 2003, the company embarked on a $1.5 billion program to reduce nitrogen oxide and sulfur dioxide emissions far below current federal limits by 2013. Through this effort the company will comply with North Carolina’s Clean Smokestacks Act which was signed into law in June 2002 with the company’s full support.

The DOJ and the EPA last month announced a settlement with the South Carolina Public Service Authority (Santee Cooper) resolving the federal government’s claims that Santee Cooper violated the NSR program at several of its power plants by undertaking construction activities and increasing emissions of air pollution without installing required pollution controls.

That settlement is expected to eliminate almost 70,000 tons of harmful air pollutants annually from four of Santee Cooper’s existing coal-fired electricity generating plants in South Carolina.

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