EPA sues OK utility for obeying the law

This is one of the most mentally greent@rded things that I have ever heard of…

U.S. EPA sues OG&E over work at Oklahoma coal power plants

Tue Jul 9, 2013

(Reuters) – The U.S. Environmental Protection Agency has sued Oklahoma Gas and Electric for failure to follow procedures required by the Clean Air Act while upgrading two coal plants in the state.

The EPA said in the complaint filed in U.S. District Court for the Western District of Oklahoma on Monday that OG&E, a unit of OGE Energy Corp, failed to estimate emissions resulting from construction projects between 2003 and 2006 at its facilities.

The Clean Air Act requires regulated facilities to anticipate emissions increases that would result from physical changes, so that, if required, a utility can take steps to prevent them, according to the complaint.

OG&E spokesman Brian Alford said the company believed it had been and still was in compliance with all state and federal requirements.

“We intend to vigorously defend our position, which is that we followed procedures,” he said, “and actual monitored data indicates that emissions did not increase as a result of the work that was done.”

[…]

Shares of OGE were up 1.5 percent at $35.07 in morning trading.

Reuters

The EPA claims that OG&E failed to estimate emissions that did not occur. They are suing OG&E in an effort to force the company “to assess whether its projects were likely to result in a significant [GHG] emissions increase.”

The EPA had no authority to regulate GHG emissions when the work was done (2003 & 2006). The work (on boilers and turbine blade replacements) caused no emissions increase.

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5 Responses to “EPA sues OK utility for obeying the law”

  1. Ryan Says:

    I think the only thing retarded here is your inability to read the suit. OG&E broke the law, pure and simple. The suit came about because they filed to file a report which they were legally obligated to file. They were very simply and obviously in violation of law. They also didn’t file it to address greenhouse gas emissions, which is your only comment on the piece. Lie for a title. Lie in the only text. Complete hogwash.

    • David Middleton Says:

      Hey greentard!

      Learn to spell or at least use spell check before you post your nonsense in my blog again.

      This all stems from the EPA’s perpetual abuse of the New Source Review rule…

      Oklahoma Gas and Electric Co could face lawsuit, fines over repairs at two Oklahoma coal plants

      The U.S. Department of Justice has sent a letter to Oklahoma Gas and Electric Co. saying it could face a lawsuit over allegations it didn’t take out the necessary permits for repairs to its Sooner and Muskogee plants from 1993 to 2006.
      By Paul Monies Published: April 3, 2013

      Oklahoma Gas and Electric Co. is facing a possible federal lawsuit and civil fines over a series of upgrades to two Oklahoma coal plants in the past 20 years.

      The U.S. Department of Justice sent a letter in March to OG&E’s attorneys offering to have settlement discussions over a notice of violation the Environmental Protection Agency issued to the utility in April 2011.

      The EPA notice alleges OG&E didn’t take out the proper permits and failed to monitor emissions for 13 upgrades and repairs to coal units at its Sooner and Muskogee power plants from 1993 to 2006.

      […]

      OG&E spokesman Brian Alford said the utility has met with officials since the letter.

      Alford said OG&E believes the changes it made to the coal plants fall outside the EPA’s New Source Review program. The allegations concern three units at the Muskogee plant and two units at the Sooner plant near Red Rock.

      New Source Review is a preconstruction permitting program that ensures air quality isn’t worsened by new and modified power plants, factories or industrial boilers. Permits granted under the program specify the type of construction, emissions limits and how the plant can operate.

      “Our emissions remain well within the established thresholds,” Alford said of the units at the Muskogee and Sooner generating plants. “Our view is that the work performed was typical repair and maintenance on existing facilities.”

      […]

      The Oklahoman

      The EPA has a long history of abusing this rule and then losing in court when challenged. They lost when the Clinton administration attempted to retroactively enforce it.

      EPA Loses Clean Air Case against TVA
      July 1, 2004

      The U.S. Supreme Court has refused to review an appellate court’s determination that the Environmental Protection Agency (EPA) exceeded its authority in seeking to enforce a controversial interpretation of the Clean Air Act (CAA) against the Tennessee Valley Authority (TVA).

      Clinton EPA Launched Retroactive Interpretation

      In 1999, the Clinton administration EPA decided to retroactively enforce against TVA a new interpretation of New Source Review (NSR) requirements of the Clean Air Act. EPA claimed TVA violated NSR 14 times between 1982 and 1996 when it performed work on nine of its power plants.

      At the time TVA performed its contested maintenance, the federal government’s longstanding interpretation of NSR did not require TVA to obtain an EPA permit or install best-available pollution abatement technology. Nevertheless, EPA filed an “administrative compliance order” in 1999 ordering TVA to install expensive new equipment and pay hefty fines for the maintenance work it had done.

      TVA objected to retroactive enforcement of the new NSR interpretation and ultimately filed a federal suit seeking to prevent EPA from enforcing its compliance order. According to TVA, EPA had acted in an “arbitrary and capricious” manner in interpreting NSR and issuing its compliance order.

      Eleventh Circuit Blasts Enforcement Action

      In a June 2003 decision, the Eleventh Circuit Court of Appeals ruled the Clinton administration had used an unconstitutional enforcement scheme in its action against TVA. The scheme was “employed on the fly, entirely ignoring the concept of the rule of law,” observed the court.

      […]

      And the Obama maladministration messed with Texas…

      Don’t Mess With Texas – EPA Loses Battle With TCEQ
      Posted on April 2, 2012
      Eva O’Brien

      If you live in Texas or have driven through the state, you know that our popular anti-litter campaign slogan is “Don’t Mess With Texas.” This slogan may have also been appropriate for the 5th Circuit’s recent decision in Luminant Generation Company, et al. v. U.S. Environmental Protection Agency, No. 10-60891, slip op. (5th Cir. Mar. 26, 2012), where the court came down hard on the U.S. Environmental Protection Agency (“EPA”) for its very late disapproval of revisions to Texas’s State Implementation Plan (“SIP”) pertaining to standard permits for pollution control projects (“PCPs”).

      In Luminant, the 5th Circuit noted that the federal Clean Air Act (“CAA”) “prescribes only the barest of requirements” for New Source Review (“NSR”) of minor new sources of air pollutant emissions. It found that EPA had not identified a single violation of the CAA or EPA’s regulations and thus had no legal basis for its disapproval of the PCP Standard Permit provisions, striking down as arbitrary and capricious the “three extra-statutory standards that the EPA created out of whole cloth.” Id. at 21. Two of those standards referenced Texas law and a third was based on too much agency discretion in permit issuance.

      Noting that EPA failed to act until three years after the 18 month statutory deadline for EPA action had passed, the court ordered EPA to expeditiously reconsider the SIP revision submission made by the Texas Commission on Environmental Quality (“TCEQ”), and compared the “sweeping discretion” given to the states in developing their SIPS to EPA’s “narrow task” of “ensuring” that the Texas regulations “meet the minimal CAA requirements that govern SIP revisions to minor NSR, as set forth in 42 U.S.C. § 7410 (a)(2)(C) and § 7310(l).” Id. The court then stated that this limited review “is the full extent of EPA’s authority in the SIP-approval process because that is all the authority that the CAA confers.” Id. at 21-22.

      […]

      ACOEL

  2. Roger Caiazza Says:

    I think you both have missed the point with this lawsuit. The rule boils down to this if you do some kind of maintenance that can increase emissions above certain levels you are required to meet new source performance standards. As a result companies doing maintenance projects wordsmith the project descriptions so that they don’t fit the criteria in the rules and keep track of the emissions before and after the project. Ultimately if you increase emissions above certain levels EPA has a legitimate gripe that you violated their rule.

    However, that is now what happened here. EPA lawyers pounced on the language that suggested that OG&E was doing the project such that they could increase emissions. However, if you look at the average SO2, NOX and CO2 emissions for five years before the year of any of the projects listed and compare that to five years starting the year after any of the projects were completed, they all go down for all five units. The operating time and heat input goes down for all five units. The gross load goes up for one unit and down for the other four.

    Ryan misses the real concern. OG&E will have to do this calculation for the five year period ending the day the projects started and compare that to a five year period starting the day the projects ended. Based on a gross annual check they are not guilty of higher emissions. Perhaps they are guilty of some book keeping or technicality but the environment did not suffer because of this.

    David has it right that this is another example of EPA’s misuse of the new source review rule. I think he missed the real problem of this example. It simply is a case of EPA trolling for language and not bothering to see if the language actually created an emissions increase. All this will do is tie up lawyers and staff for no environmental benefit.

    If you want the emissions data I used to check the numbers roger dot Caiazza at gmail dot com.

    • David Middleton Says:

      My understanding of the New Source Review rule only applies if the modifications will cause an increase in emissions (OG&E’s did not) or if the modifications are so substantial as to”‘change or alter’ the design or nature of the facility”…

      The plain meaning of “modify” is “to change or alter” [Webster’s New World Dictionary] or “to make basic or fundamental changes in.” [Webster’s Ninth New Collegiate Dictionary] Reflecting the plain meaning of this term, Congress provided that a facility (1) must undergo a physical or operational “change” before it is evaluated under the modification provision…. Thus, under the plain meaning of the Act, a unit should not be deemed “modified” as a result of replacement of equipment with equipment similar to that replaced. As in the case of Port Washington, such like-kind replacement does not “change or alter” the design or nature of the facility. Rather, it merely allows the facility to operate again as it had before the specific equipment deteriorated.

      WEPCO v Reilly

      • Roger Caiazza Says:

        exactly – if they bothered to look at the emissions before and after the modifications they would have realized that there was no emissions increase.

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