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Pennsylvania v. Allegheny Energy, Inc.

ELR Citation: 38 ELR 20228
Nos. No. 05-885, (W.D. Pa., 09/02/2008)

A district court denied motions for summary judgment on states' claims that an electric utility modified one of its coal-fired power plants in violation of the prevention of signnificant deterioration (PSD) permitting requirements set forth in Clean Air Act §165(a). The court held that the routine maintenance, repair, and replacement (RMRR) exclusion should be applied to projects that are deemed "routine in the industry" as a whole. This interpretation of RMRR under the PSD program is consistent with U.S. Environmental Protection Agency regulations under the complementary new source performance standard program, which provide that maintenance, repair, and replacement shall not be considered a modification if "routine for a source category." Nevertheless, in analyzing the project's nature and extent, its purpose, the frequency of the repair or replacement, and its cost, the utility has not shown that the project was RMRR. Hence, the RMRR exclusion does not apply. But the project does not necessarily constitute a "major modification" so as to trigger PSD requirements because a material issue of fact exists as to whether the utility should have projected a significant increase in annual emissions to result from its project. Accordingly, summary judgment is not appropriate. The court also denied the utility's motion to dismiss the case on grounds that the states' claims were time barred.