United States v. Missouri, Case No. 4:11 CV 77 RWS

158 F.Supp.3d 802

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 21, 2016

Bradford T. McLane, James W. Beers, Jr., James Allison Lofton, Justin A. Savage, Thomas Andrew Benson, Andrew C. Hanson, Anna E. Cross, Claire H. Woods, Elias Leake Quinn, Katherine Lynn Vanderhook-Gomez, 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, Jeannice Devon Williams, Joshua R. More, Michael Neil Lloyd, Deborah A. Bone, Matthew B. Mock, Mir Y. Ali, Patricia Brown Holmes, Renee Cipriano, Ronald S. Safer, Schiff Hardin LLP, Stephen J. Bonebrake, Chicago, IL, James J. Virtel, Armstrong Teasdale, LLP, Michael P. Downey, Downey Law Group LLC, St. Louis, MO, for Defendant.

MEMORANDUM AND ORDER

RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE

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. In its complaint, EPA alleges that Ameren committed various violations of the Clean Air Act, 42 U.S.C. § 7401 et seq. (“CAA”), the Missouri State Implementation Plan (“SIP”), and Ameren's Rush Island Plant Title V Permit, when it allegedly undertook major modifications at the Rush Island Plant in Festus, Missouri without obtaining the requisite permits.

The parties have filed ten separate motions for summary judgment and partial summary judgment. In this memorandum and order, I will address the only motion for full summary judgment, Ameren's Motion for Summary Judgment No. 1: On the Missouri SIP's Construction Permitting Rule. In this motion, Ameren asks me to find that, in addition to proving that Ameren undertook “major modifications” as defined by the federal regulations, EPA must also prove that Ameren undertook “modifications” as defined by the Missouri SIP. Despite their semantic similarity, “modification” and “major modification” appear to have different meanings. According to Ameren, to be a “modification” under the Missouri SIP, the project must cause an increase in potential emissions; to be a “major modification” the project must cause an increase in actual emissions.

I heard oral argument on this motion and have carefully considered the arguments and authorities provided in the parties' briefs. For the reasons stated below, I will deny Ameren's motion for summary judgment.

I. Background

A. Factual Allegations

EPA filed this lawsuit against Ameren asserting various violations of the Clean Air Act's Prevention of Significant Deterioration program, Title V of the CAA, the Missouri SIP, and Ameren's Title V permit for its Rush Island Plant. EPA seeks equitable and injunctive relief.

EPA makes the following factual allegations in its Third Amended Complaint.

Coal-fired electric units utilize boilers that burn coal to generate heat that converts water into steam. The steam in turn spins a generator to produce electricity. Major components of a coal-fired boiler include the superheater, economizer, reheater, lower slope tubes, and air preheater. When a major component breaks down, it causes the unit to be taken out of service for repairs (known as a “forced outage”). Forced outages prevent the unit from generating electricity. Replacing worn-out major components that cause forced outages improve the unit's availability to operate for more hours, increase capacity and/or efficiency, and cost-effectiveness of operations. As a result, when worn-out major components are replaced, increased amounts of coal might be burned and more annual pollution is emitted from the unit's smokestack.

Units 1 and 2 of the Rush Island Plant are coal-fired electric generating units that operate nearly continuously when available. EPA alleges that Ameren performed major modifications on Unit 1 from approximately February 2007 to May 2007 (“2007 Project”) when it replaced the Unit's economizer, reheater, lower slope tubes, and air preheater. EPA also alleges that Ameren performed major modifications on Unit 2 from approximately January 2010 to April 2010 (“2010 Project”) when it replaced the Unit's economizer, reheater, and air preheater.

EPA asserts violations of PSD requirements for both of the projects. EPA alleges that each major modification enabled and caused the affected unit to burn more coal and release greater amounts of sulfur dioxide (SO2) by increasing the capacity of the unit to burn more coal per hour of operation, increasing the availability of the unit to operate for more hours, and/or increasing the efficiency of the unit to operate more cost-effectively and for more hours of operation and/or at higher levels of operation. EPA alleges, for each project, that Ameren violated the PSD requirements in the CAA and the Missouri SIP because it (1) did not obtain a PSD permit for construction and operation of the modified unit; (2) did not undergo a BACT determination; (3) did not install BACT for control of SO2 emissions; (4) failed to operate BACT for control of SO2 emissions; (5) failed to operate in compliance with BACT emissions limitations; and (6) operated the units after undergoing an unpermitted major modification.

EPA also alleges that Ameren violated Title V of the CAA because Ameren failed to submit an accurate and complete Title V permit application and by commencing major modifications at Units 1 and 2 without obtaining a PSD permit.

B. Statutory and Regulatory Background

1. The Prevention of Significant Deterioration Program

The factual allegations underlying this lawsuit arise out of the CAA's Prevention of Significant Deterioration (“PSD”) program and the related regulations. The United States Court of Appeals for the Eighth Circuit has exhaustively examined the applicable statutory and regulatory framework.

Congress enacted the Clean Air Act Amendments of 1970 seeking to guarantee the prompt attainment and maintenance of specified air quality standards. To that end, it directed EPA to devise National Ambient Air Quality Standards (NAAQS) limiting various pollutants, which the States were obliged to implement and enforce.

A central part of the CAA's regulatory scheme was the New Source Performance Standards (NSPS) program, which required EPA to develop “technology-based performance standards” designed to limit emissions from major new sources of pollution. “New sources” include both newly constructed facilities and those that have been modified such that their emissions increase. It is unlawful for any owner or operator of any new source to operate such source in violation of applicable performance standards.

The Supreme Court has pointed out that the NSPS program did too little to achieve the ambitious goals of the 1970 amendments. Merely setting emissions limits failed to improve air quality in those areas that had already attained the minimum standards of the NAAQS because polluters had no incentive to diminish emissions below the established limits. Congress therefore amended the CAA again in 1977 to add the “Prevention of Significant Deterioration” (PSD) program, which seeks to ensure that the “air quality floor” established by the NAAQS does not in effect become a ceiling.

Under the PSD program, no major emitting facility...may be constructed or modified unless it meets certain preconditions. Among the preconditions relevant here are that the facility must obtain a permit setting forth applicable emission limitations, and that it must be subject to “best available control technology” (BACT). BACT, despite what the term implies, is not a particular type of technology. Rather, it is an emission limitation based on the maximum degree of reduction of each pollutant subject to regulation which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for the facility in question.

Sierra Club v. Otter Tail Power Co. , 615 F.3d 1008, 1011–12 (8th Cir.2010) (internal citations and quotations omitted).

The PSD program's central provision as stated in the CAA is worth re-emphasizing. It provides that “[n]o major emitting facility...may be constructed in any area to which [the PSD provisions] appl[y] unless” various requirements are met. 42 U.S.C. § 7475(a). Under this provision, “[t]he term 'construction' ... includes the modification (as defined in Section 7411(a) of this title) of any source or facility.” 42 U.S.C. § 7479(2)(C) (emphasis added). Section 7411(a) defines the crucial term “modification” as “any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted.” 42 U.S.C. § 7411(a)(4).

EPA promulgated regulations to implement the CAA's PSD program in 1978 and significantly revised them in 1980, 1992, and 2002. Each of these revisions focused, in part, on the difference between measuring emissions increases based on potential emissions, versus measuring actual emissions increases. The difference between using a test focused on potential emissions and a test focused on actual emissions has important practical consequences. Potential emissions, or in other words, a unit's maximum design capacity, are measured by the amount of emissions that a unit could emit if it were running at full design capacity all day every day.¹ However, sources of pollution, and utilities in particular, do not usually run at full capacity all day every day. This occurs for many reasons, most commonly because of unit age or breakdowns. Under an actual emissions analysis, if a plant that is not running at full capacity pre-project undergoes repairs that enable it to operate at closer to full capacity and/or for...