## Facts

- The United States and three states sued Ohio Edison Company and affiliated entities over work performed at the W.H. Sammis Station, a coal-fired power plant in Jefferson County, Ohio.
- The suit alleged that defendants undertook 34 major projects on seven generating units without first obtaining required preconstruction permits or installing required pollution controls.
- The projects included large-scale replacement and rehabilitation of boiler and related components, required extended outages, and involved substantial capital expenditures.
- Plaintiffs alleged the projects were life-extension and capacity-restoration work that increased unit availability and generation, leading to increased annual emissions of SO₂, NOₓ, and particulate matter.
- Defendants contended the projects were exempt as “routine maintenance, repair, and replacement” and disputed whether the projects caused a “significant” emissions increase under applicable baselines and metrics.
- After a bench trial, the court issued findings of fact and conclusions of law under Rule 52(a) on liability; remedies and penalties were left for later proceedings.

## Issues

1. Whether the challenged projects constituted “modifications” under Clean Air Act PSD/NSR provisions, or were exempt as routine maintenance, repair, and replacement.
2. Whether the projects caused or were expected to cause significant emissions increases, including whether annual emissions (not merely emissions rates) were the relevant measure.
3. Whether performing the projects and operating the units without required preconstruction permits and controls violated PSD, nonattainment NSR, NSPS, and enforceable Ohio SIP requirements.

## Decision

- The court found for plaintiffs on liability, concluding defendants violated the Clean Air Act at the Sammis Station.
- The court held that many of the projects were non-routine physical changes that qualified as “modifications.”
- The court found the projects resulted in, or were expected to result in, significant increases in annual emissions.
- The court concluded defendants failed to obtain required preconstruction permits and failed to install required controls, resulting in violations of PSD/NSR and related SIP and NSPS obligations.
- The court rejected key defenses, including characterizing the projects as routine maintenance and disputing the emissions-increase showing.

## Legal Principles

- A “modification” under PSD/NSR requires a physical change (or change in method of operation) that results in an emissions increase; routine maintenance, repair, and replacement is excluded.
- Whether work is “routine” is determined through a fact-intensive, multi-factor analysis considering the nature and extent of the work, purpose, frequency (at the plant and in the industry), and cost and duration.
- For PSD/NSR applicability, increases in actual annual emissions may be shown where projects increase unit utilization or capacity, even if emissions rates remain similar.
- When a modification is expected to cause a significant emissions increase, PSD/nonattainment NSR preconstruction permitting and control-technology obligations are triggered, and operating without compliance constitutes an enforceable violation.

## Conclusion

The court held that substantial, infrequent, and costly rehabilitation projects at an existing coal-fired plant were non-routine modifications that increased annual emissions and triggered Clean Air Act NSR/PSD permitting and control requirements, which defendants violated by proceeding and operating without required permits and controls.


United States v. Ohio Edison Co., 276 F. Supp. 2d 829 (S.D. Ohio 2003)