EPA wins “relief” skirmish in Ameren Missouri case

On February 27, 2019, Judge Sippel of the U.S. District Court for the Eastern District of Missouri entered an order resolving disputes between the U.S. EPA, Sierra Club and Ameren Missouri over the “relief” phase of the Ameren Missouri PSD enforcement matter. In his ruling, Judge Sippel rejected claims that the court lacks authority to impose injunctive relief for past violations of the Clean Air Act, cannot determine best available control technology (BACT), and cannot order emissions reductions from a non-violating plant. Judge Sippel also found that he could not rule, as a matter of law, the flue gas desulfurization constituted best available control technology.

ANALYSIS

Ameren Missouri operates the Rush Island Plant. As reported previously, Judge Sippel found that Ameren violated the PSD program by failing to obtain a PSD permit for a project that replaced the economizer, reheater, lower slopes and air preheaters at Rush Island Unit 1 in 2007 and the economizer, reheater and air preheaters at Rush Island Unit 2 in 2010, which project was a life extension project and major modification.

In this memorandum order, Judge Sippel addressed Ameren Missouri’s three claims for summary judgment against the EPA. Each claim is addressed in turn.

Injunctive Relief. Ameren’s first motion was that the Clean Air Act (CAA) does not authorize injunctions as a remedy for past violations. Ameren argued that the infinitive tense in CAA section 113 only authorized injunctive relief for ongoing violations. The court disagreed, finding that Section 113(b) authorized EPA to seek penalties or injunctive relief whenever a person “has violated” and that clearly allows injunctive relief for past violations. Ameren also argued that CAA Section 167 circumscribed the Section 113 authority, an argument that the court also dismissed as allowing Ameren, or any one else, to wholly evade penalties or injunctive relief. The court also dismissed claims by Ameren, based on Otter Tail Power Co., 615 F.3d 1008 (8th Cir. 2010), that injunctive relief is barred if damage relief is barred. Here, the court found that the injunctive relief was timely filed and Otter Tail provided no basis for barring relief. Accordingly, the court denied Ameren’s first motion for summary judgment that the court could not order injunctive relief for wholly past violations.

BACT. Ameren’s second motion was that the court was barred by the doctrine of primary jurisdiction from determining what constitutes BACT. The court found that this motion was not apposite because it is not determining BACT, but rather a claim by EPA that Ameren should install flue gas desulfurization. The court was not persuaded that either United States v. Cinergy Corp., 618 F.Supp.2d 942 (S.D. Ind. 2009), rev’d on other grounds, 623 F.3d 455 (7th Cir. 2010) or United States v. Westvaco Corp., No. CV MJG-00-2602 (D.Md. Feb. 26, 2015), precluded the court from reaching BACT. Additionally, the court noted that the Missouri Department of Natural Resources had not indicated opposition, but had placed a permit condition that any relief ordered by the court would require a permit reopening. Accordingly, the court denied this motion.

Pollution Offsets. Ameren’s third motion was the court was barred from requiring another Ameren facility, the Labadie Energy Center, from reducing its emissions when there was no proof that it had committed any wrongdoing. EPA and Sierra Club were seeking an injunction requiring emissions reductions at Labadie to offset the excess emissions from Rush Island. Ameren contended that the court could only order reductions if it found a violation. EPA rejected this contention, stating that it was seeking “reductions at neighboring Labadie to offset the SO2 illegally emitted.” The court did not make an explicit finding, but cited EPA’s response approvingly. The court also found Ameren’s invocation of Cinergy and Westvaco unavailing, as Cinergy had contemplated requiring reductions at “innocent” units at the same plant, but the request was rejected because the units were much larger than the violating unit and Westvaco involved an innocent third party owner who had purchased the plant and not the original violating owner. Finally, Ameren argued that the reduction would be a “penalty” and that EPA had waived its penalty claims. The court rejected this argument, noting that EPA was only seeking an offset equal to the excess emissions and therefore the relief sought was mitigative, not punitive. Accordingly, the court denied this motion for summary judgment.

Flue Gas Desulfurization as BACT. The court then turned to EPA’s motion to require flue gas desulfurization. First, the court held that the CAA does not eliminate its discretion to consider equitable factors. Second, the court held that Ameren had introduced evidence conflicting with EPA’s on the various equitable factors and this evidentiary conflict precluded summary judgment. Accordingly, the court dismissed EPA’s motion for summary judgment.

COMMENTARY

The Ameren Missouri case is unusual because the defendant has continued to litigate on all fronts against the EPA’s claims. As a result, it has generated a number of judicial opinions on areas of NSR that rarely receive judicial attention. This decision confirms what many suspected: that the EPA may, in fact, obtain injunctive relief for “wholly past” violations, that it may litigate the adequacy of BACT in court, and that it may obtain emissions reductions from other plants under the same ownership, even if those plants have committed no adjudged violation. The Ameren Missouri case has generated considerable pro-government precedent and it will be interesting to see what else develops and whether Ameren Missouri has better success in the court of appeals.