Citations
- 245 F. Supp. 2d 994
Full opinion text
ORDER ON SOUTHERN INDIANA GAS AND ELECTRIC COMPANY’S MOTION FOR SUMMARY JUDGMENT ON FAIR NOTICE
McKINNEY, Chief Judge.
TABLE OF CONTENTS
PAGE
I.BACKGROUND.997
A. RELEVANT PROVISIONS OF CLEAN AIR ACT.997
1. New Source Performance Standards.997
2. Prevention of Significant Deterioration.998
3. Routine Maintenance Exemption .998
B. DISPUTE OVER SCOPE OF ROUTINE MAINTENANCE.999
C. FACTS.999
1. SIGECO’s Projects.1000
a. The 1991 Project.1000
b. The 1992 Project.1001
c. The 1997 Project.1002
2. Public Statements about Routine Maintenance.1002
3. Industry Letters from Utility Air Regulatory Group.1003
4. The January 1998 Non-Applicability Determination.1003
5. Other Projects Throughout Industry.1004
6. Depositions from State EPA Officials.1004
II.SUMMARY JUDGMENT STANDARD .1006
III.DISCUSSION.1007
A. IS THE EPA’S INTERPRETATION REASONABLE.1007
B. FAIR NOTICE DOCTRINE.1010
C. APPLICATION OF FAIR NOTICE DOCTRINE .1012
1. Notice Available for All Three Projects.1013
a. Notice Provided by the Routine Maintenance Exemption Language .1013
b. The WEPCO Decision.1015
1. — Comparison of WEPCO to SIGECO’S Projects.1016
2. — The Clay Memo.1018
2. Additional Notice After the 1992 Project.1020
a. Preamble from the Federal Register. O 03 o
b. IDEM’S 1998 Non-Applicability Determination. rH 03 o
IV. CONCLUSION. .1024
This matter is before the Court on defendant Southern Indiana Gas and Electric Company’s (“SIGECO”) Motion for Summary Judgment on Fair Notice on the United States’ (“the Government”) claims that it violated the Clean Air Act (“CAA”), 42 U.S.C. § 7401, et seq. The parties have fully briefed their arguments, and the motion is now ripe for ruling.
I. BACKGROUND
A. RELEVANT PROVISIONS OF THE CLEAN AIR ACT
This motion does not require the Court to determine if SIGECO’s projects actually violated the CAA. The Court need only determine whether SIGECO had fair notice of the Government’s interpretation of the routine maintenance exemption. However, some discussion of the CAA provisions at issue in this case is necessary before turning to the substance of the motion.
The purpose of the CAA is “to protect and enhance the quality of Nation’s air resources so as to promote the public health and welfare and productive capacity of its population.” 42 U.S.C. § 7401(b) (1994). To accomplish this purpose, Congress required the Administrator of the Environmental Protection Agency (the “EPA”) to identify and prepare air quality criteria for air pollutants, and promulgate national primary and secondary ambient air quality standards (“NAAQS”) for each pollutant. Id. § 7408-09. States were then required to classify areas where the air quality was better or worse than the NAAQS for each pollutant. An area that meets the NAAQS for a particular pollutant is designated an “attainment” area, while areas that do not meet the NAAQS are called “non-attainment” areas. Id. § 7407(d). An area that cannot be classified due to insufficient data is “unclassifiable.” Id. According to the Government, Culley Station, the area at issue in this action, was at all relevant times designated as either attainment or unclassifiable for the following pollutants: S02, N02, and PM/PM-10. Comp. § 17.
1. New Source Performance Standards
As part of the 1970 CAA Amendments, Congress required the EPA to promulgate New Source Performance Standards (“NSPS”) in order to regulate emissions from new pollution sources. These standards applied not only to newly constructed pollution sources, but also to modifications of existing sources that created new or increased pollutant emissions. Indeed, Congress defined “new sources,” as:
Any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source.
42 U.S.C. § 7411(a)(2) (emphasis added). Congress defined modification as:
any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted.
42 U.S.C. § 7411(a)(4) (emphasis added).
Owners or operators of new sources are prohibited from operating those sources in violation of NSPS after the effective date of the applicable NSPS to such source. 42 U.S.C. §§ 7411, 7414. Any owner or operator of an affected facility subject to NSPS must furnish written notice to the EPA of any physical change that may increase the emission rate to which a standard applies as soon as practicable before the change is commenced. 40 C.F.R. § 60.7(a)(4).
2. Prevention of Signiñcant Deterioration Program
In an effort to prevent the relatively unpolluted areas (attainment or unclassifiable areas) from allowing emissions to increase to the maximum levels permitted by NAAQS, Congress included the Prevention of Significant Deterioration requirements (“PSD”) in the 1977 CAA Amendments. Part C of Title I of CAA, 42 U.S.C. §§ 7470-7492. § 7471, in conjunction with § 7410(a), requires states to adopt state implementation plans (“SIP”) that “contain emissions limitations and such other measures as may be necessary ... to prevent significant deterioration of air quality ...” According to the applicable SIP regulations, major stationary sources in an attainment or unclassifiable area must obtain a PSD permit from the state prior to constructing a major modification. 40 C.F.R. § 52.21(1). As with NSPS, these two elements constitute a major modification (which trigger PSD): (1) any physical change; and (2) a significant net emissions increase. The PSD program also requires sources contemplating a major modification to install and operate best available control technology (“BACT”), as defined in 40 C.F.R. § 52.21(b)(12) and 42 U.S.C. § 7479(3), for each pollutant regulated under the CAA.
The Court notes that the focus of the parties in this motion is on the physical change part of the modification definition. The parties have not briefed the issue of whether or not emissions have increased as a result of SIGECO’s projects. Of course, the EPA has the burden to prove that SIGECO’s projects satisfy both prongs of the CAA modification definition. When analyzing whether or not a project amounts to a modification, the most important difference between NSPS and PSD is the method by which the respective programs measure emissions. For the NSPS program, the EPA must determine whether a change increases the hourly rate of emissions at a facility. 40 C.F.R. § 60.14. For the PSD program, on the other hand, the EPA regulations provide that an increase in the total amount of annual emissions activates the modifications provisions. 40 C.F.R. § 52.21(b)(3). In short, the crucial issue of whether or not emissions have increased as a result of the SIGECO’s projects remains an open question after this motion.
3. Routine Maintenance Exemption
As the Seventh Circuit observed in a landmark CAA decision, the definition of “any physical change” is broad: “Even at first blush, the potential reach of these modification provisions is apparent: the most trivial activities — the replacement of leaky pipes, for example — may trigger the modification provisions if the change results in an increase in the emissions of a facility.” Wis. Elec. Power Co. v. Reilly, 893 F.2d 901, 905 (7th Cir.1990) (“WEP-CO”). However, both NSPS and PSD contain a regulatory exemption to the “physical change” definition that may be relevant in this case. 42 C.F.R. § 52.21(b)(2)(iii) provides:
(iii) A physical change or change in the method of operation shall not include: (a) Routine maintenance, repair, and replacement.
40 C.F.R. § 52.21(b)(2)(iii) (PSD program); see 40 C.F.R. § 60.14(e) (NSPS program). These regulations, and the statutes from which they derive, are the crux of this case.
B. DISPUTE OYER SCOPE OF ROUTINE MAINTENANCE
To provide context for the evidence offered by the parties on the fair notice motion, the Court will first briefly outline the parties’ positions. The Government claims that SIGECO’s projects in 1991, 1992, and 1997 (the “projects”) violated the CAA because they were modifications that triggered NSPS and PSD permitting and BACT provisions. As stated above, neither NSPS nor PSD is triggered unless the projects were (1) physical changes that (2) increased emissions. SIGECO attacks the physical change element by arguing that all of its projects were routine maintenance, repair, and replacement, and thus exempt from the definition of physical change. The Government maintains that the routine maintenance exemption does not apply to any of SIGECO’s projects.
Thus, a central issue in this case is the proper interpretation of the routine maintenance exemption. SIGECO does not dispute that the routine maintenance exemption analysis entails a fact intensive, case-by-case determination, taking into account factors such as the project’s nature, extent, frequency, and cost. See SIGECO Memo in Opposition to Government’s Motion for Summary Judgment on Applicable Legal Test for Routine Maintenance at 7 (“With this basic articulation of the factors that bear on the ‘routine’ evaluation, SI-GECO has no quarrel.”). Instead, the parties primarily quarrel over the scope of the frequency factor within the routine maintenance analysis.
The EPA argues that it has always looked at the unit itself to determine if these types of modifications occurred frequently in the maintenance of the unit. In other words, in addressing the frequency factor of routine maintenance, the EPA would look specifically at, for example, Culley Station Unit 3 to see if the types of changes made in 1997 had occurred frequently in the history of Unit 3. SIGECO, on the other hand, strongly disagrees and asserts that the EPA has always looked at the utility industry as a whole to see if the types of activities taken at a particular unit are done frequently across the industry. In SIGECO’s view, even if a project is unprecedented in the life of a unit, it still could qualify for routine maintenance if other utility companies have taken on similar projects. Thus, SIGECO offers evidence below in support of its claim that the EPA has recently changed its view of routine maintenance, and, more specifically, the frequency factor, and maintains that it did not have fair notice of the EPA’s “new” interpretation.
C. FACTS
In this enforcement action, the Government alleges that SIGECO made CAA modifications on three separate occasions: (1) a 1991 project at Culley Station Unit 1; (2) a 1992 project at Culley Station Unit 2; and (3) a 1997 project at Culley Station Unit 3. According to the Government, all three projects violated the PSD requirements, and the 1997 project also violated NSPS. The Government requests fines for these violations, and injunctive relief to bring them into compliance with PSD and NSPS.
1. SIGECO’s Projects
a. The 1991 Project
The F.B. Culley Station Unit 1 boiler began its initial operation in approximately 1955. Pl.’s Stmt, of Facts ¶ 12. Unit 1 contains a large, tubular heat exchanger, called an economizer, at the rear of the convection pass section of the boiler. Id. ¶ 13. The Unit 1 economizer contained two horizontal banks of tubes, identified as the inlet bank (lower) and the outlet bank (upper). Id. ¶ 14. The inlet and outlet banks each contained 78 tube elements with an approximate total 9,224 square feet of heating surface. Id. B.J. Reynolds (“Reynolds”), the Plant Manager at the time, testified that, to the best of his knowledge, the 1991 project was the first time the economizer had been replaced since it began operation in 1955. Reynolds Dep. at 62-64.
On April 8, 1988, Reynolds notified the Director of Power Production that the economizer “has problems,” referring to the results of a Life Extension Boiler Study, and he stated the need to budget for and purchase a new economizer for the next year. Id. ¶ 22. Problems with economizer tube repairs (plugs) began to occur and it was necessary to re-plug or repair leaking plugs in some of the header openings. Id. ¶ 24. In February 1990, SIGECO initiated a capital work order to replace the economizer. Id. ¶ 25. SIGECO projected the cost of the economizer replacement at $750,000, including material, labor to remove the old materials, and labor to install the new materials. Id. ¶ 26.
In a letter dated May 21, 1990, Bab-cock and Wilcox provided a quotation to SIGECO, its third, for a replacement economizer. Id. ¶ 27. The proposal included increasing the 0.150 inch tubing wall thickness to a 0.165 inch minimum wall. Id. ¶ 28. The Babcock and Wilcox price proposal was to replace all economizer tubing from a cut line 6-inches from the inlet header to a cut line 6-inches from the outlet header at a cost of $256, 500.00. Id. ¶ 29.
SIGECO prepared a specification for the Unit 1 economizer replacement. Id. ¶ 30. The job was to be performed during a scheduled four-week outage from March 18,1991, to April 12,1991. Id. The specification stated that some of the tube bundles that had been plugged are cut off too close to the header for connection with the new tubes. Id. These required new stub pieces to be bent and rolled into the header. Id. Within SIGECO, the Unit 1 economizer replacement required the approval of Plant Manager Reynolds, Director of Power Production Gary Gress (“Gress”), and company President Norm Wagner. Id. ¶ 31.
When asked about when the Culley Station units would be at the end of their useful lives, Gordon Hurst, the former President and Chief Operating Officer of SIGECO (“Hurst”), responded that SIGE-CO “never tried to predict” when its plants would wear out. Def.’s Ex. 43. According to Hurst, SIGECO believes that it can operate its plants “indefinitely” and the life of the facilities is “indefinite.” Def.’s Ex. 43.
b. The 1992 Project
The Culley Station Unit 2 boiler began its initial operation around 1966 or 1967. Pl.’s Stmt, of Facts ¶ 39. Unit 2 contains a large, tubular heat exchanger, called a secondary superheater. Id. ¶40. The secondary superheater contains two headers, an inlet and an outlet. The headers are long sections of large pipe. Id. The outlet header is approximately 33 to 35 feet long, closed on each end. Id. Reynolds testified that Unit 2 was experiencing an extremely high failure rate in the tubing in the outlet section of the secondary superheater prior to its replacement. Id. ¶ 44. When asked whether the secondary superheater had been replaced before 1992, Hurst stated that he was not aware of any such replacement. Id. ¶ 43.
Babcock & Wilcox, a company that evaluated the condition of the Culley Station units and eventually performed the replacements, recommended replacement of the Unit 2 secondary superheater. Id. ¶ 46. SIGECO initiated a capital work order in October 1991 for the replacement of the outlet section of the secondary su-perheater tubes and the outlet header. Id. ¶ 48. The work order projected the cost of the replacement project to be $1,035,000.00, including the cost of the materials and labor for the removal of the old materials and installation of the new materials. Id. The description of work in the work order was as follows:
Purchase and install new outlet section of secondary superheater on F.B. Culley Station Unit # 2. Included is the outlet header and outlet tube bundles. An extremely high failure rate on these tubes has occurred. Tube samples taken from the outlet bundles show no remaining life.
Work Order 2101202, SIG 0011984, Pl.’s Ex. 65. Within SIGECO, the Unit 2 secondary superheater replacement required the approval of Plant Manager Reynolds, Director of Power Production Gress, Vice President Hurst, and company President Rehrman. Pl.’s Stmt, of Facts ¶ 53.
The new secondary superheater outlet tube elements (43 total) were assembled at the Babcock & Wilcox facility and shipped to the site. Id. ¶ 54. There were three different element arrangements and the approximate weights of the respective elements were 475 pounds (1 element), 900 pounds (21 elements), and 1,375 pounds (21 elements), for a total weight of 48,250 pounds. Id. The overall dimensions of the secondary superheater outlet section were approximately six feet by 11.5 feet by 33 feet. Id. ¶ 55. The materials for the new outlet section tube elements and the outlet header were of a higher alloy than the original materials; the new, higher alloy would provide longer life than the original materials. PL’s Stmt, of Facts ¶ 51. The header material was upgraded from PI I material to a P22 alloy and the stub hole arrangement was ungraded to the current Babcock and Wilcox axial penetration arrangement. Id. The types of alloys used in the secondary superheater outlet bank were reduced from four to two, eliminating many dissimilar welds and reducing the amount of material required for spare parts. Id. The upper tubes in the outlet bank were fabricated from SA-213-T22 and the lower tubes from SA213-T2. Id. Babcock and Wilcox’s quotation also stated that the tube wall thicknesses were changed as well:
We are proposing to perform an engineering study as part of the material supply which would modify the material in the sections and headers. The engineering study would determine the thicknesses of the replacement materials to maintain the unit integrity.
Pl.’s Ex. 62.
c. The 1997 Project
The 1997 project at Culley Station Unit 3 was the largest of SIGECO’s projects. See Pl.’s Stmt, of Facts on its Motion for Summary Judgment that Unit 3 Project Does Not Qualify for Routine Maintenance (all of the facts about the 1997 project are taken from that statement of facts). The project included the following: “(1) replacement of superheater outlet; (2) replacement of the reheater outlet; (3) install aero-derivative high pressure-intermediate pressure turbine; (4) replace boiler feed pump element; (5) replace low pressure turbine buckets; and (6) installing retractable packing in the turbine.” SIGECO’s Vice-President of Power Production concluded that the future reliable operations were in jeopardy prior to the project. The project cost $17 million and required a ten-week outage to complete. SIGECO’s parent, SIGCORP, referred to the project as a “major refurbishment.” It was the first time the reheater outlet had been replaced since the Unit began operating in 1973.
2. Public Statements by the EPA about Routine Maintenance
In a June 19, 1991, letter from William Rosenberg, then Assistant EPA Administrator, to Senator John Dingell, Rosenberg stated: “EPA’s WEPCO decision only applies to utilities proposing WEPCO type’ changes, i.e., nonroutine replacement that would result in an actual emissions increase. This is the basis for the EPA statement that the ruling is not expected to significantly affect power plant life extension projects.” Id. ¶ 22.
In 1992, the EPA promulgated a rule to clarify the emissions test applicable to utility generating units, and that rule was preceded by a preamble. The preamble provides in pertinent part:
A few commenters requested that EPA define or provide guidance on ‘routine repair, replacement, and maintenance’ activities. The June 14 proposal did not deal with this aspect of the regulations, nor do the regulatory changes promulgated today. However, the issue has an important bearing on today’s rule because a project that is determined to be routine is excluded by EPA regulations from the definition of major modification. For this reason, EPA plans to issue guidance on the subject as part of a NSR regulatory update package which EPA presently intends to propose by early summer. In the meantime, EPA is today clarifying that the determination of whether the repair or replacement of a particular item of equipment is ‘routine’ under the NSR regulations, while made on a case-by-case basis, must be based on the evaluation of whether that type of equipment has been repaired or replaced by sources within the relevant industrial category.
57 Fed.Reg. 32,316, *32326.
In 1995, Mary Nichols, EPA’s Assistant Administrator for Air Programs, responded to a number of questions posed by industry representatives about the CAA. Among other issues, industry requested a new “restoration” exclusion that would for “activities that restore a unit to the highest capacity achievable in the previous five years.” Under industry’s proposal, these activities would not be considered modifications, and, consequently, would not trigger NSR requirements. The EPA responded:
EPA believes the issue of how restoration of lost capacity should be treated for NSR applicability purposes is better resolved by the PAL, the Clean Unit Test, and other mechanisms in the NSR Reform package that provide sources with considerable flexibility to make changes. EPA believes that the routine maintenance exclusion already included in the existing NSR regulations also has the effect of excluding ‘routine restorations.’
Def.’s Ex. 13 at 19.
On January 26, 1996, John Seitz, the EPA’s Director of Air Quality Planning and Standards wrote to Senator Robert Byrd about “potential revisions to the new source performance standards (NSPS) limiting nitrogen oxides (Nox) emissions ...” Def.’s Ex. 12. The letter provides in pertinent part:
Another concern you expressed was the potential impact of the revision on existing units. Under the General Provisions (40 CFR 60, subpart A) for new source performance standards, an affected facility is defined as a unit which commences construction, modification, or reconstruction after the date of proposal. To date, no existing unit has become subject to the utility NSPS under either the modification or reconstruction provision. Since it is anticipated that no existing utility unit will become subject to the revision due to being modified or reconstructed, as defined under the general provisions, no change to the applicability of the revision is currently planned for this rulemaking.
Def.’s Ex. 12 at 4.
3. Industry Letters from Utility Air Reyulatory Group to the EPA
Between 1989 and 1990, the Utility Air Regulatory Group (“UARG”) wrote three letters to the EPA about the NSR program and WEPCO. In a 1989 letter, UARG wrote to Department of Energy (“DOE”) about what UARG viewed as the consequences and problems surrounding the EPA’s decision (the Clay Memo) in WEPCO. The letter requested that the EPA Administrator reconsider the WEP-CO interpretations because of the negative impact it would have on energy policy and the economy. Regarding the routine maintenance exemption, the UARG wrote:
EPA’s decisions acknowledge that “routine” repairs and replacements are not subject to the NSPS and PSD modification rules. However, the Agency has arbitrarily redefined what repair and replacement activities are, such that “routine” activities include only those that (1) are frequently done at that plant, (2) involve no major equipment, (3) are inexpensive, and (4) do not extend the life of a plant. This new interpretation is vastly different from past implementation of the “routine” rule, which included any repair and replacement activity that is normal business practice.
Pl.’s Ex. 73 at UARG1 0000095.
UARG also wrote a letter to the EPA in January 1990, which was after the EPA issued the Clay Memo but before the Seventh Circuit issued its WEPCO opinion (the appeal from the Clay Memo). Pl.’s Ex. 21. This letter focused on the policy implications of the EPA’s “recent activist” view of the NSR programs. The letter did not specifically construe the routine maintenance exemption, but generally implied that the EPA was expanding the NSR program.
4. The January 1998 Non-Applicability Determination
SIGECO contacted Indiana Department of Environmental Management (“IDEM”) about the 1997 project at issue in this case, and provided IDEM with information about the project. SI'GECO argued that neither NSPS nor PSD would apply to the project. Pl.’s Ex. 20. On January 27, 1998, IDEM sent SIGECO a non-applicability letter (i.e., the project would not trigger NSPS or PSD). The letter provides:
IDEM has determined that these activities will not trigger Clean Air Act requirements under the prevention of significant deterioration (PSD) nor the new source performance standards (NSPS) programs.... Based on the data presented, we concur with SIGECO that the maintenance activities proposed for Culley Unit 3 will not trigger the requirements under NSPS or PSD. Specifically, we have determined that the replacement of the existing steam tubes and turbine blades can be considered a “like-kind replacement” under 326 IAC 2-2-1 for purposes of PSD. Additionally, this activity by SIGECO falls under the “maintenance, repair, and replacement” exemption for 326 IAC 12-1 for NSPS.... No permit review is necessary at this time for either prevention of significant deterioration or new source performance standards.
Def.’s Ex. 36.
5. Other Projects Throughout Industry
In 1988, Mobil Oil Corporation (“Mobil”) requested an NSPS determination about a proposed replacement of regenerator cyclones and other renovation work. After reviewing materials that described the project, Kenneth Eng, the Chief of the EPA’s Air Compliance Branch, informed Mobil that the project did constitute routine maintenance, and, consequently, would not be considered a modification that would trigger NSPS. The estimated cost of the renovation work was $2.57 million.
In 1988, the EPA determined the Wisconsin Electric Power Company’s (“WEP-CO”) Port Washington Life Extension Project triggered PSD and NSPS. Def.’s Stmt, of Facts ¶ 19. At the end of an investigation regarding the EPA’s WEP-CO determination, the General Accounting Office (“GAO”) reported that “[ajccording to EPA policy officials, WEPCO’s life extension project is not typical of the majority of utilities’ life extension projects, and concerns that the agency will broadly apply the ruling it applied to WEPCO’s project are unfounded. The officials noted that many life extension projects do not result in increased emissions, while other activities are routine in nature and thus exempt from the modification rule.” Id. ¶ 20. Gordon Hurst testified that SIGE-CO was aware of the statements made in the GAO report. Id. ¶ 21.
6. Depositions from State EPA Officials
SIGECO obtained depositions from three state EPA officials who expressed views on how the EPA is interpreting routine maintenance. The following highly-placed state EPA officials were deposed: John M. Daniel of Virginia (“Daniel”); Justin P. Wilson of Tennessee (“Wilson”); and George Meyer of Wisconsin (“Meyer”).
Daniel, the Director of Air Program Coordination for Virginia’s Department of Environmental Quality, testified that, “it appeared to me this approach [to routine maintenance and replacement] was entirely different than what EPA had been historically using over the last twenty or so years.” Def.’s Ex. 5 in support of Supplemental Brief in Support of Pair Notice Motion, Daniel Depo. at 18. Daniel wrote a letter to the EPA about this issue because: “I just wanted to get on the record I was expressing concern at what appeared to me to be a 180 degree turn from what the EPA had done historically. And I thought if they were gonna do that, they ought to give people notice, other than filing enforcement actions.” Daniel Depo. at 20. When asked to define the 180 degree turn by the EPA, Daniel responded:
Well, prior to this happening, I was not aware of any circumstance where EPA had charged a utility for violating the PSD New Source Review Regulations for what appeared to be routine maintenance, replacing boiler tube, turbine blades, or superheaters or economizers, any of those things. I think this has been going on for years. And to my knowledge, EPA has never complained about it until all of a sudden in 1999 they decided they were gonna do that [initiate enforcement actions like the instant one].
Id. When questioned by the Government about what he based his statements on, Daniel said he did not base them on any past written EPA guidance, but on his “perception of what had historically been done or not done, as the case may be .... actions speak louder than words.” Pl.’s Ex. F in Support of its Opposition to Def.’s Supp. Arguments on Fair Notice, Daniel Depo. at 66-67.
Wilson is the Deputy Governor for Policy for the State of Tennessee. Wilson Depo. at 7. In describing his responsibilities regarding environmental issues, Wilson testified: “Subject to the governor’s direction and approval, I think I’m the primary person responsible for the environmental policies of the State of Tennessee.” Id. at 8. Wilson stated: “EPA reinterpreted NSR requirements to find that many common maintenance repair and replacement projects at utilities and other industries should be subject to the lengthy NSR permitting process.” Id. at 18. Wilson and his staff believed that the rules were being changed by EPA with respect to the NSR requirements. Id. at 20. Wilson also stated, “Under its reinterpretation of NSR in the previous administration, the U.S. Environmental Protection Agency believes that all but the very simplest of repairs and routine maintenance at electric utilities cannot be made without triggering costly and unfair retrofit controls to reduce pollutants.” Id. at 23. Wilson also testified that he did not personally have experience in determining the applicability of routine maintenance provisions under the NSR program as applied to existing coal-fired power plants. Pl.’s Ex. E in Opposition, Wilson Depo. at 45. Although he stated that the EPA’s current interpretation of routine maintenance and NSR was a “radical reinterpretation,” he stated that he did not really understand the EPA’s current position, and he did not remember the holding of WEPCO. Id. at 54-56, 63-66.
George Meyer was Secretary of the Wisconsin Department of Natural Resources from February 1993 until February of 2001. Meyer Depo. at 7. Meyer was troubled by the “retroactive enforcement” of this enforcement initiative. Id. at 21. Meyer continued:
Guidance had been given by the delegated agency, ourselves, based on what our — what we thought the regulations and guidance to be and that we thought that was informed advice, informed advice because our people had gone through training from U.S. EPA on this. And in some cases, in individual decisions, specific concurrence had been given by U.S. EPA, and to go back and question those decisions and then base an enforcement action on it troubled me. As I headed our enforcement division for a dozen years, that’s something that I clearly was troubled by.
Id. at 21-22. Meyer did not have any experience evaluating whether or not a project at a coal-fired power plant would be classified as routine maintenance under PSD or NSR. Pl.’s Ex. D in Opposition, Meyer Depo. at 47.
II. SUMMARY JUDGMENT STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See also United Ass’n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir.1990), cert. denied, 499 U.S. 923, 111 S.Ct. 1317, 113 L.Ed.2d 250 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evi-dentiary materials which “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). A genuine issue - of material fact exists whenever “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir.1996), cert. denied, 520 U.S. 1116, 117 S.Ct. 1246, 137 L.Ed.2d 328 (1997). It is not the duty of the Court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which she relies. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. See Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir.1992).
In evaluating a motion for summary-judgment, the Court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. See Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir.1996), cert. denied, 519 U.S. 1109, 117 S.Ct. 945, 136 L.Ed.2d 834 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir.1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir.1992). “If the nonmoving party fails to establish the existence of an element essential to [her] case, one on which [she] would bear the burden of proof at trial, summary judgment must be granted to the moving party.” Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir.1996), cert. denied, 519 U.S. 1115, 117 S.Ct. 957, 136 L.Ed.2d 843 (1997).
III. DISCUSSION
A. IS THE EPA’S INTERPRETATION REASONABLE?
The routine maintenance exemption is found in the CAA regulations promulgated by the EPA pursuant to a Congressional grant of authority, and “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Courts defer even more to an agency’s construction of its own regulations. See Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333, 90 L.Ed.2d 921 (1986); WEPCO, 893 F.3d at 907. See also Homemakers N. Shore, Inc. v. Bowen, 832 F.2d 408, 411 (7th Cir.1987) (“An agency’s construction of its own regulations binds a court in all but extraordinary circumstances.”). This is especially true when the subject is a complex or technical one like the CAA. See Chevron, 467 U.S. at 848, 104 S.Ct. 2778 (“The Clean Air Act Amendments of 1977 are a lengthy, detailed, technical, complex, and comprehensive response to a major social issue.”).
The recent Supreme Court decision in Mead also informs this analysis. See United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Mead alerts courts that “deference to agency positions is not an all-or-nothing proposition; more informal agency statements and positions receive a more flexible respect, in which factors like ‘the degree of the agency’s care, its consistency, formality, and relative expertness, and ... the persuasiveness of the agency’s position,’ are all relevant.” U.S. Freightways Corp. v. C.I.R., 270 F.3d 1137, 1141 (7th Cir.2001) (quoting Mead, 121 S.Ct. at 2171).
In many cases, the focus of the court is on the deference it must give to a regulation itself. In this case, the validity of the routine maintenance regulatory exemption is not at issue. In fact, SIGECO is claiming the benefit of that exemption. Thus, the Court must determine whether the EPA’s interpretation of the regulation is reasonable. See U.S. Freightways, 270 F.3d at 1141 (observing that if the validity of the regulation itself is not at issue, the issue becomes whether the administrative agency’s interpretation of its own regulations is reasonable).
The NSR programs are triggered by (1) modifications (any physical change) that (2) increase pollutant emissions. Routine maintenance projects (even if they increase emissions) are exempt from the CAA’s definition of modification:
The following shall not, by themselves, be considered modifications under this part:
(1) Maintenance, repair, and replacement which the Administrator determines to be routine for a source category ...
40 C.F.R. § 60.14(e) (1988) (NSPS program); see 40 C.F.R. § 52.21(b)(2)(iii) (1988) (PSD program). SIGECO agrees with the Government that the routine maintenance analysis entails a fact intensive, case-by-case determination, taking into account factors such as the project’s nature, extent, frequency, and cost. However, SIGECO takes issue with how the EPA interprets the frequency factor in the routine maintenance inquiry.
The EPA asserts that it has always looked at the unit itself to determine if these types of modifications occurred frequently in the maintenance of the unit. In other words, in addressing the frequency factor of routine maintenance, the EPA would look specifically at, for example, Culley Station Unit 3 to see if the types of changes made in 1997 had occurred frequently in the history of Unit 3. The Government argues:
The interpretation EPA urges in this case is the same interpretation that the Seventh Circuit upheld more than a decade ago in Wisconsin Electric Power Co. v. Reilly, 893 F.2d 901 (7th Cir.1990) (“WEPCO”). This interpretation has three hallmarks. First, the exemption applies to a narrow range of activities, in keeping with EPA’s limited authority to exempt activities from the Clean Air Act. Second, the exemption applies only to activities that are routine for a generating unit. The exemption does not turn on whether the activity is prevalent within the industry as a whole. Third, no activity is categorically exempt. EPA examines each activity on a case-by-case basis, looking at the nature and extent, purpose, frequency, and cost of the activity.
Pl.’s Opposition to Def.’s Motion for Summary Judgment on Fair Notice at 1 (emphasis added).
SIGECO contends that the second “hallmark” above, where the EPA submits that the exemption applies only to activities that are routine for a generating unit and does not turn on whether an activity is prevalent in the industry as a whole, is a new interpretation of routine maintenance advanced for the first time in this litigation. Rather than applying the exemption only to activities that are routine for a generating unit, SIGECO asserts that the EPA has always looked at the utility industry as a whole to see if the types of activities taken at a particular unit are done frequently across the industry. In SIGECO’s view, even if a project is unprecedented in the life of a unit, it still qualifies for routine maintenance if other utility companies have taken on similar projects. Because of this disagreement over how the EPA has interpreted routine maintenance, and, more specifically, the frequency factor, SIGECO maintains that it did not have fair notice of the EPA’s “new” interpretation. SIGECO argues that this narrow interpretation of routine maintenance would subject numerous utilities to the costly NSR requirements.
The Court concludes that the EPA’s interpretation of routine maintenance is reasonable and persuasive, and will defer to it in this litigation. Athough routine maintenance is not defined in the regulations, the EPA’s narrow interpretation is consistent with the plain language of the regulation. The EPA did not exempt “repair, maintenance and replacement;” it exempted “routine repair, maintenance and replacement.” As the Environmental Appeals Board (“EAB”) observed, “even without a benefit of context, the use of the word “routine” puts the reader on notice that irregular or unusual activities may not qualify.” See In re Tennessee Valley Authority, Docket No. 00-6, 2000 WL 1358648, *34 (EPA ALJ Sept. 15, 2000) (“In re TVA ”).
In addition, the CAA term “modification” was defined very broadly by Congress, as “any physical change” that increases emissions. In WEPCO, the Seventh Circuit observed, “the potential reach of these modification provisions is apparent: the most trivial activities — the replacement of leaky pipes — for example — may trigger the modification provisions if the change results in an increase in the emissions of the facility.” WEPCO, 893 F.2d at 905. The routine maintenance exemption was subsequently promulgated by the EPA in its CAA regulations, and it exempted routine changes at regulated facilities from the broad definition of modification. Giving the routine maintenance exemption a broad reading could postpone the application of NSR to many facilities, and would flout the Congressional intent evidenced by its broad definition of modification. The EAB clearly elucidated this concern in In re TVA:
If TVA can, under cover of routine maintenance, repair or replacement, undertake significant, emissions-increasing overhauls of its existing facilities without modernizing pollution controls simply because others in the industry have undertaken like projects, then the CAA’s grandfathering of' TVA’s units in 1977 becomes, in effect, a permanent status.
In re TVA at *23. How often similar projects are undertaken throughout industry may inform the analysis, but Congress certainly did not intend to allow for companies to make an “end run” on NSR by allowing the routine maintenance exemption to swallow the modification rule. As the Seventh Circuit reasoned in WEPCO, provisions in the CAA should not be interpreted in a way that “would open vistas of indefinite immunity from the provisions of NSPS and PSD.” WEPCO, 893 F.2d at 909.
The vast expertise of the EPA in this highly technical and specialized area also suggests that deference is appropriate in this case. See Mead, 121 S.Ct. at 2171 (holding that an agency’s relative expertness is relevant when considering whether to give deference to an agency’s position). As the court commented in General Electric, “[pjarticularly in the context of this comprehensive and technically complex regulatory scheme, EPA’s interpretation of the regulations is permissible.... We defer to the reasonable judgment of the agency to which Congress has entrusted the development of rules and regulations to ensure its safe disposal.” Gen. Elec. Co. v. United States Envtl. Prot. Agency, 53 F.3d 1324, 1328.
Congress enacted the CAA to “speed up, expand, and intensify the war against air pollution in the United States with a view to assuring that the air we breathe throughout the Nation is wholesome once again.” H.R.Rep. No. 1146, 91st Cong., 2d Sess. 1,1, 1970 U.S.Code Cong. & Admin. News 5356, 5356. Congress entrusted the EPA with the authority to further define and enforce these lofty goals, and the EPA’s interpretation of routine maintenance is reasonable and consistent with those goals. Thus, the Court will defer to the EPA’s judgment in interpreting the routine maintenance exemption.
B. FAIR NOTICE DOCTRINE
The fair notice doctrine, however, prevents this deference shown to agency interpretations from “validating the application of a regulation that fails to give fair warning of the conduct it prohibits or requires.” Gates & Fox Co., Inc. v. Occupational Safety and Health Review Comm’n, 790 F.2d 154, 156 (D.C.Cir.1986). Though this principle arises most often in the criminal context, the fair notice concept has been recognized in the civil administrative context, and is now thoroughly incorporated into administrative law. See Satellite Broad. Co. v. FCC, 824 F.2d 1, 3 (D.C.Cir.1987). See also Trinity Broad. of Fla., Inc. v. Fed. Communications Comm’n, 211 F.3d 618 (D.C.Cir.2000); United States v. Chrysler Corp., 158 F.3d 1350 (D.C.Cir.1998); United States v. Hoechst Celanese Corp., 128 F.3d 216 (4th Cir.1997); Gen. Elec., 53 F.3d 1324 (D.C.Cir.1995); Beazer East, Inc. v. United States Envtl. Prot. Agency, Region III, 963 F.2d 603 (3rd Cir.1992); Rollins Envtl. Services, Inc. v. EPA, 937 F.2d 649 (D.C.Cir.1991); Fluor Constructors, Inc. v. Occupational Safety and Health Review Comm’n, 861 F.2d 936 (6th Cir.1988); Tex. E. Prods. Pipeline Co. v. Occupational Safety and Health Review Comm’n, 827 F.2d 46 (7th Cir.1987); Metro-East Mfg. Co., 655 F.2d 805 (7th Cir.1981); Kropp Forge Co. v. Sec’y of Labor, 657 F.2d 119 (7th Cir.1981); Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir.1976).
The fair notice doctrine (also called fair warning) in the administrative context is a developing concept of relatively recent vintage. The Fifth Circuit began the line of case law on fair notice when it reversed an administrative court’s conclusion that the defendant had violated an OSHA regulation, holding that the defendant did not have fair warning of how OSHA was interpreting the regulation at issue. See Diamond Roofing, 528 F.2d at 649-50. In an oft-cited passage, the court held, “If a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did. not adequately express ... [the agency] has the responsibility to state with ascertainable certainty what is meant by the standards he has promulgated.” Id. at 649 (citations omitted). The bulk of the fair warning case law comes from the D.C. Circuit, which stated the test this way: “If, by reviewing the regulations and other public statements issued by the agency, a regulated party acting in good faith would be able to identify, with ‘ascertainable certainty,’ the standards with which the agency expects parties to conform, then the agency has fairly notified a petitioner of the agency’s interpretation.” Gen. Elec., 58 F.3d at 1329. The inquiry is taken from the perspective of the regulated party (not the agency), and analyzes whether that party could have predicted the agency’s interpretation of the regulation at the time of the conduct at issue. See Hoechst Celanese, 128 F.3d at 224-230.
Although the degree of ambiguity required for a regulation to violate fair notice is unclear, courts have considered a number of factors to be relevant guides in the inquiry. In some cases, the plain language of the regulation may suffice to show fair notice or a lack thereof. See, e.g., Gates, 790 F.2d at 156 (Scalia, J.) (focusing on the actual language of the regulation at issue to conclude that defendant did not have fair notice of OHSA’s interpretation). Other public statements by the agency are also relevant to the fair notice inquiry. See Gen. Elec., 53 F.3d at 1329 (stating that notice can come from “regulations and other public statements issued by the agency.”) (emphasis added). The consistency of those public statements is also surely relevant. See Sekula v. Fed. Deposit Ins. Corp., 39 F.3d 448, 457 (3rd Cir.1994) (concluding that agency’s longstanding, consistent, public interpretation of regulation provided defendant with fair notice); Fed. Election Comm’n v. Arlen Specter 96, 150 F.Supp.2d 797, 814 (E.D.Pa.2001) (reasoning that although actual language of regulation was ambiguous, numerous public statements that clearly and consistently stated agency’s interpretation provided defendant with fair notice). An “agency’s pre-enforcement efforts to bring about compliance ... [may also] provide adequate notice.” Gen. Elec. Co., 53 F.3d at 1329. Confusion within the enforcing agency as to the proper interpretation of a regulation is also relevant evidence to show a lack of fair notice. See id. at 1332 (recognizing that it is unlikely that defendant had fair notice when some EPA regional offices had agreed with the defendant’s interpretation of the regulation). See also Rollins, 937 F.2d at 653 (observing that “significant disagreement existed between EPA’s regional offices regarding proper interpretation of language”). Whether or not a confused defendant makes inquiry about the meaning of the regulation at issue is also relevant. See, e.g., Tex. E. Prods. Pipeline Co., 827 F.2d at 50 (finding fault with company’s failure to make any inquiry of the administrative agency responsible for the regulations at issue).
C. APPLICATION OF FAIR NOTICE DOCTRINE
The posture of this case is different than the majority of fair notice cases. In many of the cases, an administrative agency issues a violation to a regulated party, and then an administrative hearing is held. Then, the regulated party files a petition for a review of the administrative order (that came from the hearing) in the appropriate Court of Appeal. See, e.g., Gates, 790 F.2d at 154; Diamond Roofing, 528 F.2d at 645. Usually, the regulated party is challenging the agency’s interpretation of the actual regulatory language that the agency argues established a violation.
In the instant case, on the other hand, there was no administrative history — the filing of this suit was the EPA’s first action against SIGECO. Moreover, rather than challenging the EPA’s interpretation of the statutory language it allegedly violated, SIGECO is claiming the benefit of a regulatory exemption promulgated by the EPA and challenging the EPA’s interpretation of that exemption. See Beazer East, 963 F.2d at 604-611 (defendant in fair notice case also claimed benefit of regulatory exemption).
With this background in mind, it is now important to discuss how SIGECO has framed the issue before the Court. As stated earlier, SIGECO accepts that the routine maintenance analysis involves a common-sense, fact-intensive determination by the EPA. However, SIGECO emphasizes the import of how frequently similar projects take place throughout industry. For example, SIGECO claims, “EPA public regulations and public pronouncements established that the routine maintenance, repair and replacement provision includes repair and replacement activities that are commonly undertaken in the utility industry when boiler components deteriorate or break.” Def.’s Memo, in Support at 12. As expressed in this quote, SIGECO focuses its arguments on “whether activities are commonly undertaken in the utility industry.” This frequency factor is only one of many factors in this fact-intensive, multi-factor analysis. In other words, SIGECO admits that it has notice about the nature of the routine maintenance interpretation, but argues that it did not have fair notice about the weight or scope of a single factor within that analysis. In the Court’s view, this unduly narrows the inquiry, and puts too much emphasis on one factor when the EPA has repeatedly stated that this is a multi-factor test. The actual issue is whether or not, prior to its projects, SIGECO could have known with “ascertainable certainty” how the EPA interpreted routine maintenance. The frequency factor is just one factor in the analysis. Moreover, from the Court’s standpoint, it is also important to note that the EPA is not arguing that whether or not these projects have taken place in industry is never relevant, only that the routine maintenance determination does not “turn” on that factor. See, e.g., Pl.’s Memo in Opposition at 1 (“The exemption does not turn on whether the activity is prevalent within the industry as a whole.”) (emphasis added). See also Pl.’s Memo in Support of Motion for Summary Judgment on the Applicable Legal Test for Routine Maintenance and Thirteen Affirmative Defenses at 11 (“The prevalence of an activity within the utility industry does not determine whether the activity is routine.”). It is with this perspective that the Court will proceed with its fair notice discussion.
As the Government notes in its briefs, timing plays a significant role in a fair notice inquiry — the notice that matters in this case is what SIGECO had notice of when it was contemplating and implementing its projects. See Hoechst Celanese Corp., 128 F.3d at 224-30 (holding that defendant did not have fair notice from 1984 until 1989, but did have fair notice from 1989 onward because EPA’s regional office directly informed the defendant of its interpretation). SIGECO acknowledged as much in its briefs: “Of course, what matters are the agency’s statements and actions before the alleged violation, not afterward.” Def.’s Memo in Support at 9. Because of this, and because the Government has challenged projects that occurred in different years, the Court will first discuss the notice available to all three projects, and subsequently evaluate the public statements made by the EPA after the 1991 and 1992 projects, and before the 1997 project.
1. Notice Available for All Three Projects
a. Notice Provided by the Routine Maintenance Exemption Language
Before turning to the public statements about routine maintenance, the Court must first determine if SIGECO received sufficient notice of the EPA’s interpretation “in the most obvious way of all: by reading the regulations.” Gen. Elec., 53 F.3d at 1329. Congress defined “modification” broadly as “any physical change ... which increases the amount of any air pollutant emitted ...” 42 U.S.C. § 7411(a)(4). The EPA subsequently promulgated specific exceptions to the modification provisions:
The following shall not, by themselves, be considered modifications under this part:
(1) Maintenance, repair, and replacement which the Administrator determines to be routine for a source category ...
(2) An increase in production rate of an existing facility, if that increase can be accomplished without a capital expenditure on that facility.
(3) An increase in the hours of operation
40 C.F.R. § 60.14(e) (1988) (emphasis added). As stated earlier, SIGECO interprets this language to mean that the EPA should look at industry to determine how often similar projects take place at other units. SIGECO argues that this text implies a broad view of routine maintenance because it was not limited to maintenance and repair, but also included replacement, and its projects were all replacement projects. It also argues that the ordinary meaning of “routine” includes activities that are “commonplace,” “repetitious,” or “in accordance with established procedure.” (quoting Webster’s Ninth New Collegiate Dictionary at 1027 (1990)). Consequently, according to SIGECO, all of its projects are exempt because they are commonplace in the industry. See Def.’s Memo in Support at 13. The EPA, on the other hand, argues that the language of the rule puts the regulated community on notice that the “the exemption applies only to activities that are routine for a generating unit” and that it “does not turn on whether the activity is prevalent within the industry as a whole.” Pl.’s Memo in Opposition at 1.
The Court finds the language of the exemption ambiguous, and cannot conclude that the EPA’s interpretation would be “ascertainably certain” to people of good faith solely based on its text. First, routine maintenance, repair, and replacement is not defined by the EPA in the regulations. Second, the language of the NSPS exemption mentions projects that are routine “for a source category.” This could imply that the EPA will center its analysis on, as SIGECO argues, whether projects are undertaken frequently throughout industry. Or the language could mean that the focus will be on, in this case, the utility industry rather than, for example, the projects taking place in the pulp industry. Either way, the “for a source category” language seems to imply that the EPA will look beyond the unit itself to determine if a project qualifies for routine maintenance. This is not to say that the EPA’s multi-factor, common sense test that considers how often similar changes have taken place at the unit itself is inconsistent with the text or unreasonable — it is reasonable, especially factoring in the lofty goals of the CAA. However, it would be difficult for a regulated party to know with “ascertainable certainty” from this brief clause how the EPA would interpret the routine maintenance exemption and apply it to industry projects.
On the other hand, the context of the exemption does provide SIGECO and the regulated community with some notice that the EPA does not interpret routine maintenance broadly. As discussed earlier, Congress sweepingly defined modification as “any physical change” at an existing facility, and the goal of the CAA was “to speed up and intensify” the war against pollution. Moreover, the D.C. Circuit rejected the EPA’s earlier attempts to make broad, categorical exclusions from the CAA’s definition of modification. See Ala. Power v. Costle, 636 F.2d 323 (D.C.Cir.1979) (striking down EPA’s exemptions from the CAA definition of “modification” for sources that emit less than fifty tons of pollutants per year, and for physical changes that do not qualify as “major” as beyond EPA’s authority). With this regulatory context in mind, a context that a sophisticated entity like SI-GECO was surely aware of, it would be inconsistent for the EPA to broadly define a regulatory exemption that would delay application of NSR to existing sources.
SIGECO’s interpretation of routine maintenance is broad in this sense: it focuses the inquiry on one factor, and interprets that factor in a way that could lead to exempting numerous projects as routine maintenance. If the “prevalent or commonplace in the industry” standard was the EPA’s interpretation, then a regulated party would, only have to point to other similar projects in industry to show that they take place elsewhere to avoid the strictures of NSR. The end result could be many industry' projects qualifying for routine maintenance just because others in the industry have taken on similar projects, projects that may or may not have been subject to NSR for various reasons. The comparisons could be misleading for a simple reason: perhaps many companies have made “major modifications” at their facilities. The EAB made a similar conclusion in the TVA enforcement action: “[I]t is the frequency of the activity at other individual units within the industry that seems to us most relevant in this context. The mere fact that a number of different facilities within an industry may have undertaken these projects strikes us as less instructive with respect to whether a project under review should be considered ‘routine,’ than the observation that this kind of replacement is, for an individual unit, an usual or once or twice-in-a-lifetime occurrence.” In re TVA, at *25. In sum, this focus on whether or not- projects are prevalent throughout industry could lead to exempting numerous expensive and complex projects, a result that strains the meaning of the word “routine,” and clashes with the guidance gleaned from the regulatory context. See Def.’s Memo in Support at 13 (“commonplace,” “repetitious,” “in accordance with established procedure”).
The Court concludes that the plain language of the routine maintenance exemption itself does not provide “ascertainable certainty” about how the EPA interprets the routine maintenance exemption. Reading the regulation in context, however, gives notice that the regulation will not be construed broadly. The Court considers this inconclusive as to whether or not SIGECO knew with “ascertainable certainty” how the EPA interpreted routine maintenance. As a result, the