As an indication the New Source Review (NSR) enforcement actions are alive and well, today an Indiana federal court has ordered the shut down of units that triggered NSR and failed to install controls. In addition, the Court required Cinergy to surrender allowances to compensate for "irreparable harm" caused by the operation of the units in violation of the Clean Air Act
The Federal District Court in Indiana issued its decision in the remedy phase of the New Source Review (NSR) enforcement action against Cinergy Corporation’s Beckjord, Ohio plant. A jury trial was held in May of 2008 to determine whether certain projects triggered NSR. The jury found that four projects performed at the facility "a reasonable power plant owner or operator would have expected a new increase of 40 tons of SO2 and/or NOx "(NSR major modification trigger levels). Following the jury’s verdict, the Court moved into the remedy stage to determine what relief to grant the plaintiffs for the violations.
The Courts decision is an interesting exercise of looking its crystal ball. Based on calculations of emissions and modeling, the Court projected environmental harm caused by failure to comply with NSR.
To determine harm, the Court first determined the type of pollution controls that would have been installed had Cinergy complied with NSR requirements (BACT/LAER). Those controls established the baseline emissions that should have been emitted since the projects were completed. All emissions above the baseline were considered "excess emissions" that resulted in environmental harm and potential health impacts.
It was pretty evident which direction the Court was heading when it included the following statement in its order:
With respect to SO2 emissions, Dr. Fox testified that the annual excess emissions of SO2 is approximately 23,000 tons…Putting this into perspective, this rate is approximately equivalent to the amount of SO2 emitted by 324,000 heavy-duty diesel trucks, which is the total number of trucks registered in Indiana, Ohio and Kentucky.
The analysis of environmental harm and potential health impacts was very similar to the exercise undertaken by the North Carolina Court in the nuisance claims against coal fired power plants (see post, "Nuisance Finding Gives Downwind States New Ammo in Long Cross-Border Pollution War"). Here is what the Court examined to gage harm caused by "excess emissions":
- How did the SO2 and Nox emission impact pm 2.5 and ozone attainment
- What were mercury emission impacts
- Potential health impacts from fine particle pollution
- Damage to the environment from acid rain
After finding irreparable harm from these impacts the Court ordered:
- Shut down of three units by Sept. 2009
- Until Sept. 2009, the three units must be run so as not to exceed baseline levels that are based BACT/LAER controls
- Permanently surrender SO2 allowances in an amount equal to total SO2 emissions from May 22, 2008 until September 30, 2009
For those who though the NSR consent decrees carried with them pretty dramatic remedies, this decision shows you take an equivalent risk by going to trial.