In August 2010, the US Department of Justice, acting on behalf of the Environmental Protection Agency (EPA), filed a motion for preliminary injunction against Detroit Edison (DTE) alleging that they had performed a major modification at their Monroe 2 power plant that violated the New Source Review (NSR) regulations of the Clean Air Act.

NERA was retained to review the declarations of the Plaintiff’s experts as they pertained to the emissions increase issue and to review the emission analysis performed by DTE underlying their pre-project Notice Letter submitted to the Michigan Department of Environmental Quality. Based on the results of our analysis, NERA prepared a declaration, expert report, and surrebuttal report describing our analysis and findings and conclusions. The key findings and conclusions were that the methodology employed by Plaintiff’s experts was not consistent with the requirements of the regulations; their methodology is not a reliable method to determine if a project is likely to cause an emissions increase; and the projected increase in generation arising in the projections presented by DTE in the Notice Letter was likely the result of system or market assumptions made by DTE that were unrelated to the project.

In August 2011, the judge issued a decision granting DTE’s motion for summary judgment. The judge concluded that DTE’s Notice Letter met the pre-project requirements under the 2002 NSR rules and that EPA’s allegation that the project caused an emission increase and was per se a “major modification” was premature, and that determination could not be made until the completion of the first year after the project was completed.