OG&E Asks Federal Judge to Dismiss EPA Lawsuit

  • Joe Wertz

Oklahoma Gas and Electric on Sept. 6 asked a federal judge to dismiss the Environmental Protection Agency’s lawsuit over emission estimates from upgrades at two of its coal-fired power plants.

Attorneys for the electric utility, Oklahoma’s largest, claim the EPA’s suit should be thrown out because “there has been no demonstrated injury to the Government or the environment.”

In the July 2013 suit, the EPA claimed the utility violated the Clean Air Act by improperly estimating pollutant emissions before it modified the Muskogee plant in Fort Gibson and its Sooner plant in Red Rock between 2003 and 2006.

In its filing, OG&E argues the emissions from the two plants aren’t classified as “significant” under the Clean Air Act’s standards, and that data collected after the modifications showed even lower emissions than they first estimated.

From OG&E’s brief supporting its motion to dismiss, which is embedded above:

Although the EPA- approved regulations in the SIP did not require OG&E to submit these post-project reports, the reports confirm the projections: there have been no “significant” increases in covered pollutants, and indeed, emissions levels have actually decreased following the projects in most cases.

OG&E attorneys also argue the utility filed project proposals with the Oklahoma Department of Environmental Quality, which didn’t ask for any additional emissions estimates or attempt to halt the project. From the brief:

For every calendar year following each project, OG&E has provided ODEQ with actual emissions data that confirmed the accuracy of OG&E’s pre-construction emissions projections. This data confirms that there was no “significant” increase in emissions following the projects (and, in fact, no emissions increase whatsoever), even without excluding emissions increases that could have been accommodated before the projects occurred …

The utility also argues the EPA’s lawsuit wasn’t timely because it concerns projects that ended more than six years ago. The Oklahoman‘s Paul Monies has a good explanation on this point:

OG&E also said the government’s complaint wasn’t timely because it’s been more than six years since the last project began. While the Clean Air Act doesn’t have a defined statute of limitations, OG&E’s attorneys said five years was applicable for the enforcement of penalties or civil fines under another federal law.

A related case against OG&E is also ongoing. In August, the Sierra Club sued the utility, arguing it made modifications to a boiler at its Muskogee plant without acquiring the proper permit.

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