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Under Clean Air Act, EPA can contest construction project before it is completed, court holds

From the April 2, 2013 issue of Public Power Daily

Originally published April 2, 2013

By Robert Varela
Editorial Director

Under the Clean Air Act’s New Source Review provisions, the Environmental Protection Agency can challenge a utility construction project before it is put into operation if the agency believes it would significantly increase air pollution, a federal appeals court ruled March 28. In USA v. DTE, the U.S. Court of Appeals for the Sixth Circuit held that a utility’s construction of a new project is subject to New Source Review enforcement to ensure that the owner of the facility complied with the NSR regulations for projecting the emission increases that would result from the project.  See  40 C.F.R.§ 52.21(a)(2)(iv)(b), 52.21(b)(41)(ii). 

The ruling reverses the finding by a district court that EPA could not enforce against the utility until post-construction emission data were available to show that the project caused a "significant emissions increase."  The project at issue involved replacement of approximately 2,000 feet of tubing, the economizer, and large sections of reheater piping, installing a new exciter and refurbishing the feedwater pumps.

This "does not mean that the agency gets in effect to require prior approval of the projections," the court said. "While the regulations allow operators to undertake projects without having EPA second-guess their projections, EPA is not categorically prevented from challenging even blatant violations of its regulations until long after modifications are made. The district court’s sweeping reading of the regulations to that effect is at odds with the Clean Air Act."

In a dissent, Judge Alice Batchelder said the majority contradicted itself by holding that EPA can challenge whether a utility’s projections comply with the regulations, but does not have prior approval authority. "Let us be very clear, if the USEPA can challenge the operator’s scientific preconstruction emissions projections in court—to obtain a preliminary injunction pending a court decision as to whether the operator or USEPA has calculated the projections correctly—that is the exact same thing as requiring prior approval," she wrote.

Batchelder also said she would have dismissed the case as moot because postconstruction data showed emissions from the plant decreased. "If true, this fact renders moot the case or controversy about preconstruction emissions projections — there can be no permitting or reporting violation because there was, conclusively, no major modification," she said.

The court noted that the case involved a "high stakes determination." The projections of emission increases determine whether a project is a "major modification" that requires pollution controls in order to obtain a permit. 


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Senior Vice President, Publishing 
Jeanne Wickline LaBella

Editorial Director
Robert Varela

Editor, Public Power Daily
Jeannine Anderson

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Fallon W. Forbush

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Laura D’Alessandro