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United States v. Duke Energy Corp.

Citation: 35 ELR 20121
No. No. 04-1763, (4th Cir., 06/15/2005) aff'd

The court affirmed a lower court's grant of summary judgment in favor of a power company charged with modifying its power plants without first obtaining permits in violation of the Clean Air Act's (CAA's) prevention of significant deterioration (PSD) provisions. The company updated its coal-fired generation units in order to extend the life of the units and to allow the units to increase their daily hours of operation. The U.S. Environmental Protection Agency (EPA) argued that the projects will lead to an increase in actual yearly emissions and, therefore, they constitute "major modifications" that require the company to obtain permits. Congress, however, mandated that the PSD definition of "modification" be identical to the new source performance standard (NSPS) definition of "modification," which requires an increase in hourly--not yearly--rate of emissions. The different purposes of the NSPS and PSD programs cannot override that mandate. Here, the projects would not increase the hourly rate of emissions. Thus, they were not subject to the CAA's PSD provisions.

[A prior decision in this litigation is published at 32 ELR 20741.]