Oklahoma Gas & Electric wins one, loses one in Muskogee lawsuit

The Sierra Club on March 5 was applauding the fact that late on March 4, the U.S. District Court for the Eastern District of Oklahoma ruled against Oklahoma Gas & Electric’s (OG&E) efforts to stop the club’s August 2013 Clean Air Act lawsuit.

The lawsuit accuses the utility of breaking the law numerous times by pumping out harmful soot pollution beyond what is allowed by state and federal law. A second suit focusing on the New Source Review portion of the Clean Air Act was dismissed due to a technicality, the club noted.

Whitney Pearson, Sierra Club’s Beyond Coal organizer in Oklahoma, said: “On behalf of the Sierra Club’s thousands of members and supporters in Oklahoma, I am pleased that the court is allowing our suit against OG&E’s numerous illegal soot violations to move forward.”

Pearson added: “We are nonetheless disappointed that the court dismissed the Sierra Club’s second claim under the New Source Review provision of the Clean Air Act due to a technicality, but we look forward to the opportunity to protect Oklahomans suffering from asthma, heart disease and other serious illness from illegal soot pollution. OG&E still has time to do the right thing, moving beyond coal and investing in home-grown clean energy solutions, like wind and solar, that can power Oklahoma’s homes and businesses.”

In August 2013, Sierra Club initiated this action over OG&E’s operation of a coal-fired power plant located in Muskogee, Okla. In its complaint, the Sierra Club asserted two sets of claims: claims for relief based on OG&E’s failure to obtain a permit required by the Clean Air Act prior to undertaking the modification of certain parts of the Muskogee plant in March 2008; and a claim for relief based on emissions of air pollutants at the Muskogee plant that exceeded the applicable limits on opacity and particulate matter (TSP) in an air permit. The 2008 project involved replacing the Unit 6 economizer and economizer tube support system, and modifying the superheater loops in the boiler. 

In November 2013, OG&E filed a motion to dismiss, arguing that the prevention of significant deterioration (PSD) claim is time-barred pursuant to a five-year limitations period, and that the opacity and TSP claim must be dismissed for failure to comply with pleading standards. In its motion, OG&E argued that emissions at the Muskogee plant did not increase after the March 2008 project.

“In accordance with the majority rule, the Court finds that OG&E’s violation of the PSD permit requirement occurred at the time construction on the March 2008 Project commenced,” said the court ruling. “Therefore, Sierra Club’s PSD claim for civil penalties is time barred because it was brought more than five years after the March 2008 project commenced.”

The ruling added: “The Court also finds the context of Sierra Club’s Opacity and TSP claim important. Under the applicable regulations, OG&E is required to self-monitor its air pollutant emissions and report violations to the [Oklahoma Department of Environmental Quality]. Given this information asymmetry, OG&E’s argument that it does not have fair notice of the basis for Sierra Club’s claim that OG&E violated the CAA is unpersuasive. Furthermore, something seems awry about the idea that Sierra Club must specifically identify periods of excess emissions at the Muskogee Plant at this stage in the litigation prior to having an opportunity to seek this information through discovery. In sum, the allegations regarding the Opacity and TSP claim in the Complaint, when viewed together and taken as true, state a plausible claim upon which relief may be granted. Accordingly, OG&E’s motion to dismiss the Opacity and TSP claim must be denied.”

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.