The idea that Ohio Edison didn’t have fair warning on how to accurately interpret “routine maintenance” under the Clean Air Act prior to its implementing a series of modifications to a coal-fired power plant located in Ohio was firmly rejected by a U.S. District Court judge in a ruling issued last Thursday.

The Clean Air Act’s New Source Review (NSR) rule requires utilities to undergo review for environmental controls if a power company builds new plants or if “non-routine” changes are made to existing power plants, that result in a significant increase in emissions. Some utilities have allegedly violated the law by undertaking major improvements and upgrades to their power plants without also installing the required pollution controls.

The EPA has refined the definition of modification to include only activities that involve both a physical change to a unit and a resulting significant increase in emissions. Excluded from the definition of modification are projects only involving routine maintenance, repair or replacement.

At issue in the case before U.S. District Judge Edmund Sargus are 11 construction projects that Ohio Edison undertook at the seven units of the W.H. Sammis power plant located in Jefferson County, OH. The plant is owned by Pennsylvania Power Co., an Ohio Edison subsidiary. The total cost of the 11 projects was around $136.4 million.

A primary goal of the projects was to prevent or at least diminish the number and duration of outages at Sammis. By physically replacing aging or deficient components, Ohio Edison intended and achieved a significant increase in the operation and output of the units. “In turn, the amount of emission of sulphur dioxide, nitrogen oxides and particulate matter also increased,” Sargus said.

The judge noted that if the projects were modifications, as used in the Clean Air Act, Ohio Edison was required prior to construction to project and calculate post-construction emissions to determine if the new standards applied. Also, if the projects were modifications, Ohio Edison was required to obtain a pre-construction permit.

However, since the company contended that the projects were not modifications, but were instead “routine maintenance, repair and replacement,” neither of those courses were pursued. The EPA and state plaintiffs contended that all 11 projects constituted modifications.

Ohio Edison said that it didn’t have advance warning of its obligations under the Clean Air Act, as amended. Specifically, the company said that the definition of routine maintenance, repair or replacement has changed repeatedly, as has the method for calculating emissions.

“The court concludes that Ohio Edison’s assertion that it lacked fair notice of the interpretation of the routine maintenance exemption is unavailing,” wrote Sargus, who serves in the U.S. District Court for the Southern District of Ohio-Eastern Division.

Moreover, the judge said that each of the 11 activities undertaken at Sammis effected a non-exempt physical change to a major source, for which compliance with the Clean Air Act was required. “In reaching this conclusion, the court adopts the EPA’s interpretation of the ‘routine maintenance, repair or replacement’ exemption.”

The court also said that each of the 11 activities resulted in a “significant net emissions increase.” Sargus said that it is “undisputed” that Ohio Edison failed to obtain the necessary permits for the activities at issue,” adding that Ohio Edison was liable under the Clean Air Act.

The judge said that appropriate civil penalties and injunctive relief will be determined following a remedy phase trial, which will start in March 2004.

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