The U.S. Environmental Protection Agency (EPA) and the Federal Energy Regulatory Commission (FERC) recently teamed up to enforce air and energy laws in a case involving both civil and criminal allegations under the Clean Air Act (CAA) and Federal Power Act. This marks the first criminal prosecution under the Federal Power Act.

The allegations stem from actions taken by Berkshire Power (the plant owner) and Power Plant Management Services, LLC (the plant operator) (collectively “the Defendants”) at an electric power generating plant in Agawam, Massachusetts between January 2009 and March 2011. EPA charged the Defendants with (1) knowingly and willfully falsifying, tampering with and rendering inaccurate the plant’s Continuous Emissions Monitoring System (CEMS), and (2) knowingly and willfully making false statements and failing to file and maintain documents required under the CAA.

With regard to operation of the CEMS, EPA specifically alleged that both Defendants deliberately manipulated the CEMS to “record false low readings of oxygen and nitrogen oxides” on four occasions.  EPA also found that both Defendants knowingly and willfully made “materially false statements, representations and certifications in, and omitted material information from” quarterly electronic data reports (EDRs).

Finally, FERC charged the company operating the plant with violating the Federal Power Act by taking the plant offline when the plant was paid to be available. However, the Plant was unable to operate at higher production levels without the CEMS indicating excess emissions. FERC also charged the plant operator with making false statements to the independent system operator.

Upon learning of the incidents giving rise to the violations, the plant operator, on behalf of the plant owner, self-reported the incidents to EPA and the Massachusetts Department of Environmental Protection, and the staff involved in the alleged violations were terminated.  The Defendants pled guilty to all civil and criminal charges and must pay a total of $8.5 million in fines and other penalties. Proceedings are still pending against at least one individual involved in the alleged violations.