Sixth Circuit Ruling Reinforces EPA's Ability To Initiate NSR Enforcement Based On Projected Emissions Increases

Last month, the U.S. Court of Appeals for the Sixth Circuit reinstated an Environmental Protection Agency (EPA) enforcement action against DTE Energy (DTE) for violating the New Source Review (NSR) program under the Clean Air Act.  This case stems from capital projects undertaken at DTE's Monroe Power Plant in Monroe, Michigan during a three-month scheduled outage in 2010.  DTE had characterized the projects performed during the 2010 outage as routine maintenance, repair and replacement activities, which, if accurate, would exempt them from NSR.

In 2010, EPA initiated an enforcement action challenging DTE's routine maintenance designation. EPA also challenged DTE's decision to exclude from its NSR emissions analysis projected emissions increases from the plant based on "demand growth."  In a prior decision, the Sixth Circuit reversed and remanded a district court's award of summary judgment to DTE, holding that EPA was authorized to bring an NSR enforcement action