United States v. Ohio Edison Co.
Citation: 33 ELR 20253
No. No. 2:99-CV-1181, (S.D. Ohio, 08/07/2003)
The court holds that an electric utility violated the Clean Air Act (CAA) when it completed 11 construction activities that modified a coal-fired electric-generating facility without first calculating post-construction emissions and obtaining preconstruction CAA prevention of significant deterioration (PSD) permits. Compliance with the CAA's new source review and PSD requirements is triggered when an existing source makes a modification resulting in increased emissions, unless a regulatory exemption applies. The term "modification" is defined in the CAA as any physical change of a stationary source increasing the source's air pollutant emissions or resulting in emissions of new air pollutants. A "physical change" is any physical change to the units at issue that causes an unexempt emissions increase. Here, in 11 instances, the utility physically and significantly changed its plant units by either replacing critical components or rebuilding damaged elements. Moreover, the physical changes do not fall within the regulatory exemption for routine maintenance, repair, or replacement. In reviewing potential routine maintenance, repair, and replacement exemptions, the U.S. Environmental Protection Agency examines plant activities on a case-by-case basis, taking into account the nature and extent of the activity, as well as its purpose, frequency, and cost. Here, the nature and extent of the activities were not routine in that they involved outside contractors and capitalization of equipment. The purpose of the activities was to increase availability and reliability of plant units, which is beyond mere maintenance. The plant failed to show that the frequency of the activities was routine. And, at $136.4 million, the total costs of the activities was beyond that for routine repair and maintenance. Moreover, the activities resulted in significant net emissions increases of pollutants, and the plant should have projected at the commencement of construction that each of the 11 construction activities would have resulted in significant increases.
Counsel for Plaintiff
Robert H. Oakley
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
Counsel for Defendant
Robert L. Brubaker
Porter, Wright, Morris & Arthur
41 S. High St., Columbus OH 43215