Ball rolling again on Sierra Club complaint against Midwest Generation

Midwest Generation LLC, the operator of several coal-fired power plants in Illinois, filed a Feb. 18 motion with the Illinois Pollution Control Board for dismissal of a clean-air complaint filed by the Sierra Club.

“Through this action, Sierra Club seeks to overturn decades of established law and directly enforce against Midwest Generation, LLC (‘MWG’) the new 1-hour sulfur dioxide (‘SO2’) National Ambient Air Quality Standard (‘NAAQS’), which was adopted August 23, 2010,” the power generator wrote. “Filed on the same day that MWG filed for bankruptcy before any area in Illinois was designated nonattainment, the Complaint seeks to sidestep the carefully crafted administrative process for designating NAAQS nonattainment areas and for bringing such areas into attainment. The Complaint has no legal basis; it should be dismissed with prejudice.”

Midwest Generation and parent Edison Mission Energy sought Chapter 11 protection in December 2012 at the U.S. Bankruptcy Court for the Northern District of Illinois. Currently before the court, and possible for court approval in March, is a reorganization plan that would see most of their assets, including the Illinois coal plants, sold to NRG Energy (NYSE: NRG).

“A NAAQS is not legally or practicably enforceable against individual sources, like those that Sierra Club targets through this suit,” Midwest Generation added in the Feb. 18 filing. “If allowed to proceed, Sierra Club’s action would unlawfully usurp the roles of the Illinois Environmental Protection Agency (‘IEPA’) and the United States Environmental Protection Agency (‘USEPA’) to determine whether an area is in attainment with a NAAQS and to develop, adopt, and implement a State Implementation Plan (‘SIP’) to demonstrate the means to attain a new NAAQS, including regulations that reflect policy choices regarding which sources must reduce emissions, by when, and by how much.”

Since the Sierra Club filed this complaint, USEPA has made its initial designations of nonattainment area in Illinois, and IEPA is preparing its SIP to demonstrate attainment through a statutorily prescribed process that will include public participation, the power generator added.

The complaint also should be dismissed as frivolous because it fails to state a claim upon which the board can grant relief, the company said. Sierra Club seeks to enforce the 1-hour SO2 NAAQS against certain MWG power stations even though the 1-hour SO2 NAAQS itself does not impose any standard or limitation upon individual sources.

Complaint covers emissions from four coal-fired plants

The complaint, filed Dec. 17, 2012, relates to four MWG plants:

  • The Joliet #9 and #29 Generating Station. Joliet #9 is a 360-MW coal-fired unit, the complaint noted. Joliet #29 includes units 7 and 8, which are rated at 660 MW each.
  • The Powerton Generating Station, which includes Units 5 and 6, which are rated at 893 MW each.
  • The Waukegan Generating Station, which includes Units 7 and 8, rated at 326 MW and 355 MW, respectively.
  • The Will County Generating Station, which includes Units 3 and 4, rated at 299 MW and 598 MW, respectively.

To control SO2 emissions under the state’s Combined Pollutant Standard (CPS), MWG uses ultra-low sulfur coal and has begun installation of a series of dry sorbent injection systems utilizing Trona (also known as flue gas desulfurization equipment, or FGDs). MWG said it keeps IEPA abreast of its progress in complying with CPS SO2 control and reduction requirements, including through routine communications (e.g., applications for construction permits and updates to already-issued construction permits) and through quarterly and annual progress reports.

The hearing officer at the board handling this case in January directed Midwest Generation to file this brief by Feb. 18, with the Sierra Club to file any response by March 14. A telephone status conference is set for April 17.

This case had been stayed for about a year, but Midwest Generation’s bankruptcy court in November 2013 decided to let the matter proceed. Bankruptcy courts automatically stay outside litigation against bankrupt companies right after the bankruptcy petition is filed. The bankruptcy court said that one test it had to consider was whether there is a good chance that the Sierra Club will prevail on the merits of its complaint, and that in this case the club does have that chance at the Illinois board. The court also said that the alleged environmental damage currently being caused by the coal plants outweighs any issues this complaint will cause for Midwest Generation and its bankruptcy case.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.