Judge rejects summary judgment for Ameren in Rush Island coal plant dispute

A judge at the U.S. District Court for the Eastern District of Missouri on Jan. 21 rejected a summary judgment motion from Ameren Missouri which would have ended a 2011 lawsuit filed by the U.S. Environmental Protection Agency over upgrades made years ago at the coal-fired Rush Island power plant.

In its complaint, EPA alleges that Ameren committed various violations of the Clean Air Act, the Missouri State Implementation Plan (SIP) and Ameren’s Rush Island Title V Permit, when it allegedly undertook major modifications at the Rush Island Plant without obtaining the requisite permits.

The parties had filed ten separate motions for summary judgment and partial summary judgment. “In this memorandum and order, I will address the only motion for full summary judgment, Ameren’s Motion for Summary Judgment No. 1: On the Missouri SIP’s Construction Permitting Rule,” said the Jan. 21 ruling by Judge Rodney Sippel. “In this motion, Ameren asks me to find that, in addition to proving that Ameren undertook ‘major modifications’ as defined by the federal regulations, EPA must also prove that Ameren undertook ‘modifications’ as defined by the Missouri SIP.

“Despite their semantic similarity, ‘modification’ and ‘major modification’ appear to have different meanings. According to Ameren, to be a ‘modification’ under the Missouri SIP, the project must cause an increase in potential emissions; to be a ‘major modification’ the project must cause an increase in actual emissions.

“I heard oral argument on this motion and have carefully considered the arguments and authorities provided in the parties’ briefs. For the reasons stated below, I will deny Ameren’s motion for summary judgment.”

EPA filed this lawsuit against Ameren asserting various violations of the Clean Air Act’s Prevention of Significant Deterioration program, Title V of the CAA, the Missouri SIP, and Ameren’s Title V permit for Rush Island. EPA seeks equitable and injunctive relief.

Units 1 and 2 of the Rush Island Plant are coal-fired units that operate nearly continuously when available. EPA alleges that Ameren performed major modifications on Unit 1 from approximately February 2007 to May 2007 (“2007 Project”) when it replaced the unit’s economizer, reheater, lower slope tubes, and air preheater. EPA also alleges that Ameren performed major modifications on Unit 2 from approximately January 2010 to April 2010 (“2010 Project”) when it replaced the unit’s economizer, reheater, and air preheater.

EPA asserts violations of PSD requirements for both of the projects. EPA alleges that each major modification enabled and caused the affected unit to burn more coal and release greater amounts of SO2 by increasing the capacity of the unit to burn more coal per hour of operation, increasing the availability of the unit to operate for more hours, and/or increasing the efficiency of the unit to operate more cost-effectively and for more hours of operation and/or at higher levels of operation.

EPA alleges, for each project, that Ameren violated the PSD requirements in the CAA and the Missouri SIP because it: did not obtain a PSD permit for construction and operation of the modified unit; did not undergo a BACT determination; did not install BACT for control of SO2 emissions; failed to operate BACT for control of SO2 emissions; failed to operate in compliance with BACT emissions limitations; and operated the units after undergoing an unpermitted major modification. EPA also alleges that Ameren violated Title V of the CAA because Ameren failed to submit an accurate and complete Title V permit application and by commencing major modifications at Units 1 and 2 without obtaining a PSD permit

The judge in the Jan 21 ruling found Ameren has not established as a matter of law that PSD applicability is limited to only those circumstances where there is a both a “modification” and a “major modification.” The same reasons for his conclusion that there is no additional “modification” requirement under the PSD rules apply to Ameren’s Title V argument. “As a result, Ameren’s motion for summary judgment will be denied in its entirety,” he wrote.

Said Ameren Missouri parent Ameren Corp. (NYSE: AEE) about this lawsuit in a November 2015 quarterly Form 10-Q report filed at the SEC: “In January 2011, the Department of Justice, on behalf of the EPA, filed a complaint against Ameren Missouri in the United States District Court for the Eastern District of Missouri. The EPA’s complaint, as amended in October 2013, alleges that in performing projects at its Rush Island coal-fired energy center in 2007 and 2010, Ameren Missouri violated provisions of the Clean Air Act and Missouri law. Ameren Missouri anticipates a trial of this case will occur in 2016. Ameren Missouri believes its defenses are meritorious and is defending itself vigorously. However, there can be no assurances that it will be successful in its efforts.”

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.