229 F.Supp.3d 906
UNITED STATES of America, Plaintiff,
v.
AMEREN MISSOURI, Defendant.
Case No. 4:11 CV 77 RWS
United States District Court, E.D. Missouri, Eastern Division.
Signed January 23, 2017
James W. Beers, Jr., Justin A. Savage, Claire H. Woods, Jason Anthony Dunn, James Allison Lofton, Thomas Andrew Benson, Anna E. Cross, Elias Leake Quinn, Nigel B. Cooney, Katherine Lynn Vanderhook–Gomez, U.S. Department of Justice, Environmental Enforcement Section, Washington, DC, Andrew J. Lay, Suzanne J. Moore, Office of U.S. Attorney, St. Louis, MO, for Plaintiff.
David Clark Scott, Joshua R. More, Michael Neil Lloyd, Deborah A. Bone, Kristen Viglione, Matthew B. Mock, Mir Y. Ali, Molly L. Wiltshire, Patricia Brown Holmes, Renee Cipriano, Schiff Hardin LLP, Ronald S. Safer, Riley and Safer LLP, Stephen J. Bonebrake, Chicago, IL, James J. Virtel, Armstrong Teasdale LLP, St. Louis, MO, for Defendant.
MEMORANDUM OPINION AND ORDER
RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE
" 'Why don't you go up to the Range?' somebody said to me. 'The air is pure, and they have the best water on earth.' "
- W.P. Kinsella
Shoeless Joe
TABLE OF CONTENTS
INTRODUCTION ...913
FINDINGS OF FACT ...916
I. BACKGROUND CONCERNING THE DEFENDANT, THE RUSH ISLAND PLANT, AND THE APPLICABLE REGULATIONS ...916
A. The Defendant ...916
B. The Rush Island Coal–Fired Power Plant ...917
C. Facts Concerning General Applicability of the Prevention of Significant Deterioration Program ...917
D. Notice of the Violations Alleged in the Complaint ...918
II. FACTS CONCERNING THE 2007 AND 2010 BOILER UPGRADES AT RUSH ISLAND UNITS 1 AND 2 ...918
A. The Boiler Components at Issue and Their Role in Burning Coal to Generate Electricity ...919
B. Operational Problems Leading up to the 2007 and 2010 Boiler Upgrades ... 922
1. Boiler tube leaks ...923
2. Slagging and fouling ...924
3. Pluggage ...925
4. Availability losses caused by the replaced components prior to the 2007 and 2010 outages as reported to the Generating Availability Data System ...931
5. Reduction in the maximum capability of Unit 2 prior to the 2010 outage ... 934
C. The Approval and Engineering Process for the 2007 and 2010 Major Modifications ...936
D. Ameren Justified Replacing the Economizers, Reheaters, Lower Slopes, and Air Preheaters Because They Would Improve Operations and Allow the Units to Generate More ...937
E. Implementation of the 2007 and 2010 Major Modifications ...942
F. The Cost of the 2007 and 2010 Major Modifications ...944
III. THE 2007 AND 2010 BOILER UPGRADES EACH RESULTED IN A SIGNIFICANT NET EMISSIONS INCREASE OF SO2WITHIN THE MEANING OF THE PSD REGULATIONS ...945
A. Overview ...945
B. GADS–Based Emissions Calculations for Rush Island Units 1 and 2 ...946
1. Results of projected emissions increase calculations based on the GADS data at Rush Island Unit 1 ...952
2. Rush Island Unit 1 actual emission increases ...954
3. Results of projected emissions increase calculations based on the GADS data at Rush Island Unit 2 ...956
4. Rush Island Unit 2 actual emission increases based on availability ...958
C. Emissions Increases Based on Unit 2 Capability Analyses ...959
1. The expected capability and efficiency impact of the Unit 2 boiler upgrade ...959
2. Actual increases in Unit 2's capability ...962
3. Dr. Sahu's emission calculations based on Unit 2's capacity increase ... 965
4. Nothing in Mr. Caudill's opinions negates Mr. Koppe's calculations of capability increases ...965
D. PROSYM–BASED EMISSIONS CALCULATIONS ...966
1. Production cost modeling at Ameren ...967
2. Dr. Hausman's sensitivity analyses ...968
a. Unit 1 sensitivity analysis ...968
b. Unit 2 sensitivity analysis ...969
3. Dr. Hausman's "with and without" analyses ...969
a. Unit 1 analysis ...970
b. Unit 2 analysis ...971
IV. AMEREN HAS FAILED TO MEET ITS BURDEN TO ESTABLISH THE APPLICABILITY OF THE DEMAND GROWTH EXCLUSION ...971
A. Background about the Market for Rush Island's Generation ...971
B. Ameren's Failure of Proof Regarding Demand Growth as a Cause of Increased Emissions ...974
V. AMEREN'S NSR EMISSION ANALYSES ...975
A. Ameren Performed No Pre–Project NSR Analysis for Either Project ...976
1. Rush Island Unit 1 ...976
2. Rush Island Unit 2 ...977
B. Ameren's Post Hoc Reasonable Possibility Analysis is Substantively Flawed ...979
1. Ameren's calculations fail to model all of the performance improvements expected from the boiler upgrades ...979
2. Ameren's capable of accommodating approach ...979
3. No analysis of relatedness ...981
C. Nothing in Ms. Ringelstetter's Analyses Excuses Ameren's Failure to Perform Appropriate NSR Projections ...982
1. Ms. Ringelstetter failed to address relatedness for either unit ...982
2. Ms. Ringelstetter's Unit 1 analysis relies on faulty assumptions ...983
a. Background regarding ancillary services ...983
b. Ms. Ringelstetter's modeling choice ...984
VI. THE 2007 AND 2010 BOILER UPGRADES TRIGGERED TITLE V REQUIREMENTS ...985
CONCLUSIONS OF LAW ...985
I. OVERVIEW ...985
II. THE UNITED STATES PROVED THAT AMEREN VIOLATED THE PREVENTION OF SIGNIFICANT DETERIORATION AND TITLE V PROVISIONS OF THE CLEAN AIR ACT ...986
A. Undisputed Elements of Proof ...986
B. The Projects Should Have Been Expected to Cause—and Did Cause—Emissions Increases ...986
1. Legal standard ...986
2. The evidence shows that Ameren should have expected an emissions increase related to each project, and such an emissions increase occurred ...988
a. The Koppe–Sahu emissions calculations show a predicted increase at Unit 1 and were confirmed by an actual increase ...988
b. The Koppe–Sahu emissions calculations show a predicted increase at Unit 2 and were confirmed by an actual increase ...991
3. Dr. Hausman used Ameren's modeling to quantify the emissions impact from the projects ...994
4. The evidence shows that efficiency improvements would not prevent emissions from increasing as a result of the projects ...996
5. Conclusion: The emissions evidence shows an increase related to the projects should have been expected and actually occurred ...997
C. Ameren Also Violated Title V ...998
III. AMEREN'S DEFENSES AND CRITIQUES OF THE UNITED STATES' EVIDENCE FAIL ... 999
A. The Projects were not Routine Maintenance ...999
1. Legal standard ...999
2. The boiler refurbishments at each Rush Island unit constitute one project for routine maintenance purposes ...1000
3. The projects do not qualify for the routine maintenance exemption ...1001
a. Nature and extent ...1001
b. Purpose ...1002
c. Frequency ...1002
d. Cost ...1003
4. Conclusion: the projects cannot be considered routine ...1003
B. The Emissions Increases Cannot Be Set Aside Based on the Demand Growth Exclusion ...1003
1. Ameren's experts confirm that demand was not projected to—and did not—cause the pollution increases at Rush Island ...1003
2. Ameren's evidence does not address what portion of the units' projected or actual emissions increases were "unrelated" to the projects ...1004
3. Ameren's other demand growth arguments fail ...1006
4. Emissions resulting from operations that would not have been possible but for the boiler upgrades cannot be considered "unrelated" to those boiler upgrades ...1008
C. Ameren's New Source Review Analyses Are Fatally Flawed and Cannot Provide Safe Harbor from Liability ...1010
1. Ameren does not have a legitimate process for assessing PSD applicability ...1010
2. Unit 1 ...1012
3. Unit 2 ...103
EVIDENTIARY ISSUES FROM TRIAL ...1015
I. AMEREN'S MOTIONS TO STRIKE TESTIMONY AND EVIDENCE ...1015
A. Ameren's Motions to Strike Mr. Koppe and Dr. Sahu's Testimony and Evidence Concerning the Causation of Actual Emissions Increases ...1015
B. Ameren's Motion to Strike Dr. Hausman's Testimony Criticizing Ms. Ringelstetter's Opinions ...1016
II. THE UNITED STATES' MOTION TO CURTAIL RE–LITIGATION OF THE LAW OF THE CASE ...1016
CONCLUSION ...1017
INTRODUCTION
Plaintiff the United States of America, acting at the request of the Administrator of the United States Environmental Protection
Agency ("EPA"), filed this suit against defendant Ameren Missouri ("Ameren") on January 12, 2011. The United States alleges that Ameren committed various violations of the Clean Air Act, 42 U.S.C. § 7401 et seq. , the Missouri State Implementation Plan, and Ameren's Rush Island Plant Title V Permit when it allegedly undertook major modifications at its Rush Island Plant in Festus, Missouri without obtaining the required permits. For the reasons that follow, I conclude the United States has established that Ameren violated the Clean Air Act and its operating permit by carrying out the Rush Island projects without obtaining the required permits, installing best-available pollution control technology, and otherwise meeting...
