Colorado District Court Rejects Claims for Civil Penalties For Clean Air Act MACT Violations
As reported previously in the Greenebaum Air Quality Letter, the 2008 vacatur of the 2005 rule delisting electric generating units (EGUs) from the Clean Air Act Section 112(g) list of sources subject to case-by-case MACT review requirements led to a series of lawsuits against EGU facilities that had previously begun construction without a case-by-case MACT determination and had continued construction after vacatur of the rule. As reported in the last issue of the Greenebaum Air Quality Letter, the Fifth Circuit Court of Appeals recently held that Sandy Creek Energy Associates violated Section 112(g) of the Clean Air Act where, after the 2005 delisting rule was vacated, it continued construction of an EGU without undergoing a case-by-case MACT analysis, even though construction of the unit had commenced pursuant to a permit issued prior to the rule’s vacatur. On April 26, 2011, Sandy Creek requested that the U.S. Supreme Court accept review of that decision. The U.S. Supreme Court has not yet ruled on that request.
In a more recent case, WildEarth Guardians v. Public Service Company of Colorado, d/b/a Xcel Energy (D. Colo., August 1, 2011), a Colorado District Court refused to apply civil penalties, attorney fees or costs against Xcel in a similar case where the facility: 1) submitted a case-by-case MACT analysis with its original permit application in 2004; 2) complied with a permit requirement under the Clean Air Mercury Rule and complied with the limit set in the initial case-by-case MACT determination; and 3) complied with EPA and Colorado directives in 2009 to update the 2004 case-by-case MACT analysis which resulted in a more stringent mercury limit. The Court held that under such circumstances retroactive application of Section 112(g) requirements would be inequitable. WildEarth has appealed the decision.
To view a complete PDF of the Third Quarter 2011 issue of the Air Quality Letter, click HERE.