Jump to Navigation
Jump to Content

United States v. DTE Energy Co.

ELR Citation: 41 ELR 20285
Nos. 10-13101, (E.D. Mich., 08/23/2011) (Friedman, J.)

A district court held that an energy company did not violate the CAA when it failed to obtain a new source review (NSR) permit prior to renovating electric utility steam generating units at its Monroe, Michigan, power plant. The government argued that a permit was required because the renovations constitute a "major modification." But the 2002 NSR rules provide source operators with the option of either getting a permit before commencing their projects or measuring their emissions afterward and running the risk of the government bringing an enforcement action. So long as certain pre-project requirements are met, NSR is triggered only if the project in question causes an emissions increase, thereby demonstrating that the project is a major modification. Here, the company projected its post-construction emissions, determined that those projections did not indicate a major modification, reported these projections to the Michigan Department of Environmental Quality through the submission of a notice letter, and is now monitoring the emissions post-project. Although the project may eventually prove to be a major modification based on emissions measurements that the company has been taking since the project was completed, that determination cannot be made until the completion of the first year for which such measurements are required. Accordingly, the government's only remedy—a post-construction enforcement action—is premature.