Judge rejects motion to dismiss lawsuit over Merrimack coal plant

A federal judge in New Hampshire on Dec. 4 refused to dismiss a lawsuit against Public Service Co. of New Hampshire over emissions from the coal-fired Merrimack power plant and also allowed the plaintiff to file an amended complaint in this 2011 lawsuit.

The Conservation Law Foundation (CLF) alleges that Public Service Co. of New Hampshire (PSNH) has violated the Clean Air Act (CAA) by operating Merrimack Station, a coal-fired power plant, without the necessary permits.

More specifically, CLF alleges that PSNH, both prior to and since making changes to the plant in 2008 and 2009 (which the parties refer to collectively as the “turbine projects”), failed to obtain permits required under the state and federal regulations that implement the CAA’s New Source Review program.

After hearing oral argument from the parties, a judge in the U.S. District Court for the District of New Hampshire on Dec. 4 denied PSNH’s motion to dismiss and granted CLF’s motion to amend. CLF filed the amended lawsuit the same day.

The foundation upon which PSNH’s primary argument for dismissal rested is the notion that the turbine projects were subject to the New Source Review permitting framework established by 2002 amendments to the CAA’s federal implementing regulations, and that the regulations as amended did not impose any obligation on PSNH to obtain permits in connection with the projects.

“That foundation cannot bear weight: New Hampshire’s Department of Environmental Services, which is tasked with implementing the CAA in this state, had not adopted those amendments into state law at the time of the turbine projects,” said the Dec. 4 decision from Judge Joseph Laplante. “In its reply memorandum, PSNH attempts to salvage its motion by arguing that the complaint also fails to state a claim under the version of the regulations that actually applied in New Hampshire at the time of the projects (an argument it also advanced with vigor at oral argument). That belated argument, however, is insufficiently developed, and the court will not address it at this time. PSNH’s motion accordingly fails.”

Merrimack Station, which consists of two units dubbed MK1 (in operation since 1960) and MK2 (in operation since 1968), generates power by burning coal. In recent years, PSNH has made several renovations to the plant, the judge noted.

In 2008, the utility replaced a steam turbine in MK2. At the same time, it also replaced, installed, or modified related equipment in MK2 in order to increase turbine efficiency, increase output, and reduce maintenance outages. CLF alleges that, while these alterations enabled additional generation capacity – and while PSNH’s own projections indicated that they would cause annual NOx emissions to increase by 334 tons per year – PSNH did not obtain any permits prior to making them. And, in late 2009, PSNH shut down MK2 for a period of about four months to make additional alterations to the turbine and its associated equipment. CLF alleges once again that, while these later changes enabled additional generation capacity and, by PSNH’s projections, would again result in increased NOx emissions, PSNH did not obtain any permits prior to making them. Nor, CLF alleges, has PSNH obtained the appropriate permits since that time.

Working at the court in support of PSNH, due to the implications of this case to the electric industry as a whole, is the Utility Air Regulatory Group.

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.