Late last month, Federal Judge Rodney Sippel ruled that EPA could obtain injunctive relief against Ameren Missouri in the long-running NSR enforcement case concerning Ameren’s Rush Island Plant. The Court had already ruled that Ameren had violated the Clean Air Act by failing to obtain a PSD permit prior to implementing substantial modifications at the plant.
Having lost at the liability stage, Ameren took three shots at avoiding injunctive relief. Three strikes and Ameren’s out. The Court concluded that:
- It has it has authority to issue an injunction for a past violation, even where EPA has withdrawn its penalty claim. The Court distinguished cases where ownership had changed since the modifications were made.
- Federal courts may make determinations regarding what constitute BACT.
- It has authority to require emissions reductions at other facilities owned by Ameren, in order to compensate for the excess emissions occurring at Rush Island due to the NSR violation. This may be the most significant aspect of the decision.
The Court did deny EPA’s motion for summary judgment that BACT requires installation of flue gas desulfurization at Rush Island. However, as long as Ameren isn’t closing Rush Island, I would not expect that to be a heavy lift for EPA at trial.
Given EPA’s decision to deemphasize NSR enforcement, I don’t know how many more of these cases we’re going to see. With that in mind, I’m going to note what I said about the NSR enforcement program when the liability decision was issued in this case:
Put simply, why would we decide to regulate existing facilities only when they make significant upgrades that make them more efficient? Wouldn’t it make more sense to regulate the existing facilities that remain inefficient?
Yes, it makes sense to regulate older less efficient facilities. But isn’t there the opportunity to do so separate from NSR in individual State operating permits? Of course, the usual duration of those may be too long to allow timely action, but couldn’t that be fixed as well?