The opinion of the court was delivered by: Judge Gregory L. Frost
Magistrate Judge Norah McCann King
These consolidated cases are before the Court for consideration of Defendants' motion for partial summary judgment (Doc. # 54), the State Plaintiffs' memorandum in opposition (Doc. # 63), the United States' memorandum in opposition (Doc. # 61 in 2:05-cv-360), and Defendants' reply memorandum (Doc. # 64).*fn1 For the reasons that follow, the Court finds the motion not well taken.
As this Court has recognized in previous orders, the captioned two consolidated cases both involve alleged Clean Air Act violations by Defendants American Electric Power Service Corporation and Columbus Southern Power Company.*fn2 In Case No. 2:04-cv-1098, the Commonwealth of Massachusetts and the states of New York , Connecticut, New Jersey, Vermont, New Hampshire, Maryland, and Rhode Island ("the State Plaintiffs") assert that the foregoing defendants unlawfully modified electric generating units that they continue to operate. In Case No. 2:05-cv-360, the United States asserts a similar action against the same defendants for the same violations.
During an April 5, 2006 status conference/preliminary pretrial conference, the parties proposed to the Court that they file briefs seeking interpretive decisions on issues of law, apart from the facts. The Court agreed to consider such a motion, resulting in the filing of Defendants' July 3, 2006 motion for partial summary judgment. (Doc. # 54.) The parties have completed briefing on the motion, which is ripe for disposition.*fn3
Partial summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court may therefore grant a motion for partial summary judgment if the nonmoving party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party's case. See Muncie Power Products, Inc. v. United Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
In viewing the evidence, the Court must draw all reasonable inferences in favor of the nonmoving party, who must set forth specific facts showing that there is a genuine issue of material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 234 (6th Cir. 2003). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is " 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Hamad, 328 F.3d at 234-35 (quoting Anderson, 477 U.S. at 251-52).
The crux of the parties' debate is whether Defendants' equipment replacement projects fall within the routine maintenance, repair, or replacement exclusion so as to not fall under the "modifications" category invoking the New Source Review ("NSR") regulations. Defendants posit that the applicable standard is whether the replacement work is routine within the relevant industry, while Plaintiffs argue that the correct standard is to examine the exemption's applicability on a case-by-case basis by considering the nature and extent of the activity, the activity's purpose, its frequency, and its cost.
Having considered the parties' arguments, this Court agrees with the relevant analysis contained in the line of persuasive-authority cases including United States v. Ohio Edison Company, 276 F. Supp. 2d 829 (S.D. Ohio 2003). The Court therefore expressly adopts and incorporates the relevant portions of the August 7, 2003 Opinion and Order in Ohio Edison, which presents a persuasive rationale for rejecting Defendants' position that this Court need not and does not unnecessarily repeat in full here. See also New York v. E.P.A., 443 F.3d 880 (D.C. Cir. 2006); Wisconsin Elec. Power Co. v. Reilly, 893 F.2d 901 (7th Cir. 1990). The Court thus concludes that the multi-factored, case-by-case approach is the correct standard, with industry practices necessarily informing that inquiry.
The Court recognizes that Defendants have argued that the Environmental Protection Agency has altered its position over time. The Court has wrestled with this argument in light of the posture of the motion before the Court--a summary judgment motion--and has concluded that, as the United States effectively points out in its memorandum in opposition, Defendants' summary judgment evidence must be considered in context. The necessary context of the various statements, including the 1992 preamble, support the holding of Ohio Edison. Although select portions of text yield some support for Defendants' position, that text must be read within the context of the ...