New Source Review: A New Volley Begins

The states of New York, New Jersey, and Connecticut have won an Ohio court ruling that Ohio Edison, a First Energy company, violated the Clean Air Act. How did they do so? By making improvements that, the decision finds, nullified their being grandfathered out of new source review.

The suits against Ohio Edison, a subsidiary of the FirstEnergy Corporation, and the other power companies centered on the Clean Air Act’s “new source review” provision. The provision mandates that older coal-burning plants, “grandfathered” from some pollution control requirements when the act was adopted more than three decades ago, install modern controls whenever they significantly expand their energy production.

The provision does not require the increased, and expensive, controls in the case of routine maintenance, and the suits maintained that power plants had long been doing substantive upgrades, some needing approval from company directors, under a routine-maintenance guise.

In other words, the upgrades should have been sufficient to trigger a new source review, and even though the EPA’s enforcement is not perfect, that’s no excuse for Ohio Edison doing these upgrades without being subject to new source review, and therefore to more stringent emission regulations.

So it’s not that they spewed more stuff into the air, it’s that the made improvements that should have shifted them into a new regulatory regime that required them to start emitting less.

Yes, it’s as absolutely convoluted and screwy as it sounds. I’ll have more to say on this later.

See also these articles from MSNBC, Forbes, and the Cleveland Plain Dealer.