United States v. Ameren Mo.

421 F.Supp.3d 729

UNITED STATES of America, Plaintiff,andSierra Club, Plaintiff-Intervenor,

v.AMEREN MISSOURI, Defendant.

No. 4:11 CV 77 RWS

United States District Court, E.D. Missouri, Eastern Division.

Signed September 30, 2019

James W. Beers, Jr., Justin A. Savage, Thomas Andrew Benson, Anna E. Cross, Elias Leake Quinn, Jason Anthony Dunn, Nigel B. Cooney, U.S. Department of Justice, 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, Daniel James Schufreider, Jr., Mir Y. Ali, Molly L. Wiltshire, Renee Cipriano, Schiff Hardin LLP, Ronald S. Safer, Riley and Safer LLP, Stephen J. Bonebrake, Chicago, IL, John F. Cowling, Armstrong Teasdale LLP, St. Louis, MO, Matthew B. Mock, Schiff Hardin LLP, San Francisco, CA, for Defendant.

Benjamin J. Blustein, Pro Hac Vice, David P. Baltmanis, Pro Hac Vice, Miner and Barnhill, P.C., Chicago, IL, Sunil Bector, Pro Hac Vice, Sierra Club, Oakland, CA, for Plaintiff-Intervenor.

MEMORANDUM OPINION & ORDER

RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE

TABLE OF CONTENTS

INTRODUCTION...736

I. Summary...736

II. Case History...737

III. Liability Phase Findings of Fact and Conclusions of Law...738

FINDINGS OF FACT...742

I. BACKGROUND: RUSH ISLAND'S MAJOR MODIFICATIONS...742

a. Ameren Redesigned and Rebuilt Units 1 and 2 Near the End of Their Design Life...742

b. Modifications at Rush Island Led to Actual Emissions Increases...742

c. Rush Island Is One of a Small Minority of Similar Plants That Continue to Operate Without SO₂ Scrubbers...743

i. SO₂ Scrubbers Are Widely Used in the Electric Utility Industry...743

ii. DSI Controls Are Not Commonly Installed on Units of Rush Island's Size...745 d. Ameren Evaluated FGD Installation at Rush Island...745

i. Ameren's Studies Recommended Wet FGD at Rush Island...746

ii. Ameren's Studies Confirmed the SO₂ Emission Rates Achievable at Rush Island...748

iii. Ameren's Studies Demonstrate How Quickly Wet FGD Can Be Installed...749

II. RUSH ISLAND'S VIOLATIONS HAVE LED TO MORE THAN 162,000 TONS OF EXCESS SULFUR DIOXIDE POLLUTION...751

a. PSD Requires the Best Available Control Technology...751

i. BACT Determination Is a Five-Step Process...751

ii. Cost-Effectiveness Does Not Determine BACT...753

iii. NSPS Do Not Fundamentally Alter the BACT Process...754

b. FGD Scrubbers Constitute BACT for the Vast Majority of Pulverized Coal-Fired Power Plants...754

i. The Electric Power Utility Industry Recognizes That FGD Constitutes BACT...754

ii. During The Past Twenty Years, Every BACT SO₂ Determination for a Pulverized Coal-Fired Power Plant Has Required FGD...755

c. The Parties' Competing BACT Analyses...756

d. Campbell's Testimony Rejecting Wet FGD and Choosing DSI Was Not Credible...757

i. Campbell Overly Relied on Incremental Cost Effectiveness at Rush Island...758

ii. Campbell's Cost Comparisons Include Cost Categories Not Included in Other Plants' BACT Determinations...759

iii. Campbell's Incremental Cost Effectiveness Analysis Was Inconsistent With His Prior Trainings and Advice...760

iv. Campbell's Cost Threshold Opinion Is Unsupported...761

v. Campbell Disregards MDNR Practice Concerning Sources in the Same Category...762

vi. Campbell Incorrectly Rejects Information From Power Plants Subject to NSPS...763

e. I Reject Campbell's Testimony That DSI Is BACT for Rush Island...763

f. Dr. Staudt's Testimony Concerning BACT at Rush Island Was Credible...764

g. BACT Requirements at Rush Island in 2007 and 2010...765

h. Rush Island's Excess Emissions Total More Than 162,000 Tons...767

III. CURRENT BACT ANALYSIS...768

a. Current BACT Requires Wet FGD...768

b. Current BACT Requires an Emissions Limitation of 0.05 lb/mmBTU...770

IV. RUSH ISLAND'S EXCESS EMISSIONS CAUSED IRREPARABLE INJURY, INCLUDING INCREASED RISK OF PREMATURE MORTALITY...771

a. Rush Island's Excess Pollution Is Substantial...771

b. Rush Island's Excess SO₂ Emissions Created Harmful PM_2.5...771

i. Dr. Schwartz Presented Credible, Well-Supported, Expert Testimony Concerning the Health Impacts of PM_2.5...772

ii. PM_2.5 Causes Heart Attacks, Strokes, Asthma Attacks, and Premature Mortality...772 iii. Dr. Fraiser's and Dr. Valberg's Testimonies Were Not Credible...774

iv. The Evidence Does Not Support Ameren's Argument that Rush Island's Excess Emissions Are Harmless...777

c. Rush Island's Excess Pollution Affects the Entire Eastern Half of the United States...779

i. Plaintiff's Experts Presented Detailed and Credible Modeling Results...779

ii. The Model Predicts Rush Island's Excess Emissions Increased PM_2.5 Concentrations Across the Entire Eastern Half of the United States...781

d. Results of Two Different Models Show Rush Island's Excess Emissions Increased the Risk of Hundreds to Thousands of Premature Deaths...784

i. Dr. Schwartz Published a Peer-Reviewed Quantitative Risk Assessment for Rush Island's SO₂ Emissions in 2009...785

ii. Dr. Schwartz Also Quantified Risk Based on Chinkin's CAMx Modeling...786

iii. Rush Island's Excess Emissions Caused Hundreds to Thousands of Premature Deaths...786

e. Ameren's Criticisms of the EPA's Model Are Not Persuasive...786

V. RUSH ISLAND'S EXCESS POLLUTION IS BEST REMEDIATED BY DECREASING EMISSIONS AT THE NEARBY LABADIE ENERGY CENTER...789

a. Reducing Future Pollution from Labadie Will Remediate the Harm from Rush Island for the Same Populations and to the Same Extent...790

b. Society Will Benefit If Ameren Offsets Its Excess Emissions...792

c. Ameren's Surrendering of Pollution Allowances Would Not Remedy Harms to the Populations Affected by Rush Island's Excess Emissions...792

VI. ADDITIONAL EQUITABLE FACTORS SUPPORT THE REQUESTED REMEDIES...794

a. Liability Standards Were Well Understood in the Industry...794

b. Ameren Has Benefitted from Delaying Compliance at Rush Island...796

c. Ameren Admits It Can Afford to Comply With the Requested Remedies...798

i. Ameren Has Abundant Financial Resources...798

ii. Ameren Agrees It Can Finance the Requested Relief...799

iii. The Projected Ratepayer Impact of the Requested Relief Is Less Than Ameren's Yearly Rate Increases...800

iv. Ameren's Average Estimates of Rate Increase Are Misleading...801

CONCLUSIONS OF LAW...802

I. THE CLEAN AIR ACT REQUIRES THE BEST AVAILABLE CONTROL TECHNOLOGY FOR MODIFIED POWER PLANTS IN PSD AREAS...804

II. THE EBAY STANDARD GOVERNS INJUNCTIVE RELIEF...805

III. AMEREN MUST MAKE RUSH ISLAND COMPLIANT BY OBTAINING A PSD PERMIT WITH EMISSIONS LIMITATIONS BASED ON WET FGD...806

a. BACT Sets Emissions Limitations Based on the Maximum Degree of Pollution Reduction Achievable...806

b. Industry Experience and Ameren's Own Analyses Show FGD Technology Is Economically and Technically Feasible at Rush Island...807

c. Ameren's Arguments Against PSD Permitting Mischaracterize Case Law, Ameren's Permitting Options, and the Nature of BACT...810

i. As a Major Stationary Source That Performed Major Modifications, Ameren Must Obtain a PSD Permit, Not a "Minor Permit"...810

ii. None of Ameren's Arguments or Evidence Prevent Me From Ordering Ameren to Propose Wet FGD as BACT...811

iii. Ameren's Arguments for the Least Effective Control Technology, DSI, Contradict the Nature and Definition of BACT...812

d. SO₂ BACT For Rush Island Was Wet FGD Technology at the Time of the Modifications and Remains So Today...813

e. The eBay Factors Require Rush Island to Comply with PSD Permitting and BACT Emissions Limitations...813

i. The Communities Downwind of Rush Island Have Been Irreparably Injured...814

ii. Legal Remedies Are Inadequate to Remedy the Harm...815

iii. The Balance of Hardships Weighs in Favor of an Injunction Ordering Ameren to Install Wet FGD at Rush Island...815

iv. Compliance at Rush Island Serves the Public Interest...816

f. Ameren's Arguments That Rush Island's Excess Pollution Was Not Harmful Are Not Convincing...816

i. The National Ambient Air Quality Standards (NAAQS) Do Not Establish a Safe Threshold For SO₂ Pollution...816

ii. The "Significant Impact Levels" Do Not Determine the Meaningfulness of Human Health Impacts...817

iii. Ameren's Reliance on Scientific Uncertainty Is Misguided and Its Reliance on Fringe Toxicological Evidence Is Unpersuasive...818

IV. LABADIE MUST REDUCE EMISSIONS COMMENSURATE WITH THE EXCESS EMISSIONS RELEASED BY RUSH ISLAND...819

a. The eBay Factors Support the EPA's Requested Injunctive Relief at Labadie...819

i. The Same Irreparable Injury Analysis of Rush Island's Excess Emissions Applies to Labadie...819

ii. Legal Remedies Are Inadequate to Remedy the Harm...819

iii. Plaintiffs Suffer the Balance of the Hardships...820

iv. Pollution Reductions at Labadie Serve the Public Interest...820

b. Reducing Pollution from Nearby Labadie Is Relief Narrowly Tailored to Remedy the Harm from Ameren's Violations...820

c. DSI Installation at Labadie Is Not a Penalty...821

V. AMEREN'S FAIR NOTICE ARGUMENT FAILS...822

CONCLUSION...824

INTRODUCTION

I. Summary

In 1970, Congress enacted the modern Clean Air Act to protect the nation's air resources and "promote the public health and welfare and the productive capacity" of the people. 42 U.S.C. § 7401(b)(1). Not satisfied with the results achieved under the 1970 statute, Congress amended the Clean Air Act in 1977 to add protections for areas meeting existing federal air quality standards. The 1977 amendments require newly-constructed power plants to install pollution controls. These pollution controls decreased the pollution coming from new plants. Acknowledging the cost of retrofitting old facilities, the 1977 amendments allowed existing plants to continue operating for their natural lifespan without pollution controls. Existing plants retained this "grandfathered" status until they were modified in any way beyond routine maintenance that increased emissions.

Ameren Missouri's (Ameren) Rush Island Energy Center (Rush Island) started operating in 1976, one year before the Clean Air Act Amendments. In the mid-2000's, as Rush Island was reaching the end of its natural lifespan, Ameren decided to conduct the most...