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Judge denies UNC’s motion to dismiss allegations of violating Clean Air Act

UNC sophomore Deeksha Mittal and other UNC students call Chancellor Guskiewicz to demand the university take accountability for UNC's coal plant on Tuesday, Sept. 22, 2020.

A judge denied the University’s motion to dismiss nine out of 10 allegations that the campus’s coal plant violated the Clean Air Act, according to the Center for Biological Diversity, one of the plaintiffs in the lawsuit.

The court refused to dismiss claims numbered two through 10, which allege UNC had air-permit violations regarding pollution control, pollution monitoring and noncompliance reporting requirements, the center said in a press release. 

The judge has yet to rule on UNC's motion to dismiss the first claim in the suit — which is that UNC burned more coal than its permit allows, Robert Ukeiley, a senior attorney in the center’s environmental health program, said. 

The Center for Biological Diversity filed the suit, along with the Sierra Club, against the University. The plaintiffs said UNC's coal plant, known as the Cogeneration Facility, was burning too much coal and that the University was not properly monitoring it. Despite the motion to dismiss being denied this month, the University said it will continue its fight in the suit.

Ukeiley said the denial, handed down by a federal district court judge Oct. 9, means the case will now take one of two paths. He said one potential path for the case is reaching a settlement through mediation, which might only take a couple of months. The other path is for the judge to decide the case, which could take much longer.

An analysis by the center found that under its state permit, the University’s power plant can contribute to levels of harmful nitrogen oxide and sulfur dioxide of four to six times greater an amount than allowed under the U.S. Clean Air Act. Former Vice Chancellor for Finance and Operations Jonathan Pruitt denied this allegation in a letter to staff attorney Perrin de Jong at the center. 

Pruitt responded to the plaintiffs’ notice of intent to file in this letter to de Jong, which he sent in November 2019. Pruitt said although the University shares the goal of reducing carbon emissions, it strongly disagrees that there were repeated violations.

Pruitt said in the letter that though violations of the University’s permit may have occurred, they do not support the public allegations the plaintiffs made.

“The University has supplied voluminous information and data to both the Division of Air Quality and the plaintiffs and looks forward to presenting this information as part of its ongoing defense against this lawsuit,” UNC Media Relations said Wednesday in a statement to The Daily Tar Heel.

Jovita Lee, a North Carolina state campaigner at the Center for Biological Diversity, said the University needs to be more transparent, especially with the communities immediately surrounding and affected by the coal plant.

The population affected by the plant includes two nearby historically Black neighborhoods, the Pine Knolls and Northside communities, Lee said.

UNC-Chapel Hill is the sole institution of higher education in North Carolina with a coal-burning plant still in operation, according to the center’s press release. The University previously said in a statement that it is committed to ending the use of coal. 

"We have already made meaningful progress toward this goal and the University has cut its coal use in half over the last two decades," UNC said in the statement. "We will continue moving off coal in a realistic timeframe using technologies that are technically and financially feasible."

Ukeiley said one goal of the lawsuit is for the Cogeneration Facility to comply with the coal-burning limits it was given. Another goal is for any monetary penalty to be given back to the affected community in the form of supplemental environmental projects, which in this case would intend to reduce air pollution.

Lee said it would be helpful for the University to provide a roadmap or plan for the future regarding its compliance with air quality standards and dedication to end the plant’s use of coal.

“We’re having to have the same conversation about the plant shutting down, and prioritizing community health and prioritizing environmental protection, and it’s fallen on deaf ears, unfortunately,” Lee said. 

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