Sierra Club, Justice file amended complaints over DTE coal emissions

Conservation groups on Sept. 6 took legal action to support U.S. Department of Justice (DOJ) efforts to clean up several of DTE Electric’s coal-burning power plants by requiring them to comply with the New Source Review provisions of the Clean Air Act.

The Sierra Club, represented by Earthjustice, amended its complaint at the U.S. District Court for the Eastern District of Michigan in the case of U.S. v. DTE Energy Co. which calls for the clean up DTE Electric’s (formerly known as Detroit Edison) River Rouge, Trenton Channel, and Belle River coal-fired plants. DOJ recently amended its complaint to add the same claims against other coal units.

“The River Rouge and Trenton Channel coal plants are aging dinosaurs that Detroit Edison continues to operate without readily available and legally required pollution control technology,” said Shannon Fisk, an Earthjustice attorney handling this case, in a Sept. 9 statement. “It is far past time for Detroit Edison to protect public health and create jobs by cleaning those plants up or retiring and replacing them with affordable clean energy resources.”

The alleged violations stem from Detroit Edison’s multi-million dollar modifications at those plants without installation of required modern pollution controls that would help protect public health.

“When I think about clean and renewable sources of energy, I think about the infinite possibilities of creating jobs and powering Michigan through cleaner sources like wind and solar power,” said Douglas Myers, River Rouge resident and Sierra Club member. “If DTE were to focus on forward thinking in the problem areas we could remove a lot of the dirty and harmful elements being emitted through their current facilities.”

Case originally began in 2010, and has been to the appeals court already

This case was initially filed in 2010 by Justice and the U.S. Environmental Protection Agency as an enforcement action regarding a modification at Unit 2 of of the Monroe coal plant. Sierra Club intervened in that proceeding. While the federal district court initially ruled against DOJ and Sierra Club, the U.S. Court of Appeals for the Sixth Circuit earlier this year reversed the district court decision. As a result, the DOJ and Sierra Club case against Monroe Unit 2 continues, and both plaintiffs are seeking to expand their claims to address alleged violations at other Detroit Edison coal units.

Said the Sept. 3 amended complaint from Justice: “The Amended Complaint would add New Source Review claims related to six additional construction projects at coal-fired power plants owned and operated by Defendants. Amending the complaint at this time is the logical next step for this litigation: it will allow the Parties to litigate the full set of Clean Air Act claims against DTE, avoiding ‘piecemeal litigation.’ In addition to the claims at Monroe Unit 2, the Amended Complaint would add NSR claims at five additional units: Belle River Units 1 and 2; Monroe Units 1 and 3; and Trenton Channel Unit 9.”

  • The Belle River plant consists of two units of about 670 MW (gross) each that began operating in 1984 and 1985.
  • The Monroe plant consists of four units of about 820 MW (gross) each that began operating in the early 1970s. The amended complaint alleges violations at Monroe Units 1, 2, and 3.
  • The Trenton Channel plant has five units: four small units of about 60 MW each and one larger unit of about 540 MW (gross). The smaller units are known as units 16-19 and began operation in 1949 and 1950. The larger unit is known as Trenton Channel 9 and began operation in 1968. The amended complaint alleges violations at Trenton Channel Unit 9. 

DTE says it followed the law in making plant modifications

DTE Energy (NYSE: DTE) said about this case in its July 26 Form 10-Q report: “In August 2010, the U.S. Department of Justice, at the request of the EPA, brought a civil suit in the U.S. District Court for the Eastern District of Michigan against DTE Energy and DTE Electric, related to the June 2010 [notice of violation/finding of violation] and the outage work performed at Unit 2 of the Monroe Power Plant, but not relating to the July 2009 NOV/FOV. Among other relief, the EPA requested the court to require DTE Electric to install and operate the best available control technology at Unit 2 of the Monroe Power Plant. Further, the EPA requested the court to issue a preliminary injunction to require DTE Electric to (i) begin the process of obtaining the necessary permits for the Monroe Unit 2 modification and (ii) offset the pollution from Monroe Unit 2 through emissions reductions from DTE Electric’s fleet of coal-fired power plants until the new control equipment is operating.”

In August 2011, the District Court judge granted DTE Energy’s motion for summary judgment in the civil case, dismissing the case and entering judgment in favor of DTE Energy and DTE Electric. In October 2011, the EPA caused to be filed a Notice of Appeal to the Sixth Circuit. On March 28, the appeals court remanded the case to the District Court for review of the procedural component of the New Source Review notification requirements.

 

“DTE Energy and DTE Electric believe that the plants identified by the EPA, including Unit 2 of the Monroe Power Plant, have complied with all applicable federal environmental regulations,” said the Form 10-Q. “Depending upon the outcome of discussions with the EPA regarding the two NOVs/FOVs, DTE Electric could be required to install additional pollution control equipment at some or all of the power plants in question, implement early retirement of facilities where control equipment is not economical, engage in supplemental environmental programs, and/or pay fines. The Company cannot predict the financial impact or outcome of this matter, or the timing of its resolution.”
About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.