Luminant Will Fight DOJ Clean Air Act Lawsuit, Says it Is "Without Merit"

As we reported last week, the U.S. Department of Justice has sued Dallas-based Luminant, Texas' biggest power generator, for alleged violations of the Clean Air Act. The federal complaint, filed on behalf of the EPA, contends Luminant made major modifications to two of its biggest northeast Texas coal-fired power plants without the EPA's say-so, resulting in "significant" increases in air pollution.

In its statement, Luminant dismissed the complaint, promising to "vigorously defend against these claims which we believe are wholly without merit."

In a document Energy Future Holdings, its parent company, sent to employees, it argues that the modifications EPA claims it made were "routine maintenance work involving repairs and replacements of boiler components." Such work, it says, would not require Luminant to seek a permit from the agency. The company has already sought a review from the 5th U.S. Circuit Court of Appeals of the EPA violation notice on which DOJ's lawsuit is based.

It argues among other things, that the notice is maddeningly vague.

It will be tough to get at the meat of the agency's conclusion until a judge determines whether to unseal the lawsuit. Luminant requested the seal, citing confidential business information, and DOJ agreed. But the feds added that "it does not appear that the general information in the complaint could harm defendant's competitive position in any way."

What we do know is that the complaint is based on a provision of the Clean Air Act requiring plants to clear with the agency any modifications that would increase pollution levels, and to install control devices to prevent it.

The Luminant plants in question are from a generation of power plants Congress exempted from compliance -- until, that is, they are modified in some way that extends their useful lives or increases their generating capacity. It'll be up to the federal appeals court to determine whether Luminant modified its plants in this way.

Fighting the lawsuit, EFH tells its employees, has become its "highest legal priority."

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Brantley Hargrove

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