The Illinois Pollution Control Board on Jan. 8 refused to dismiss a Sierra Club clean-air complaint against Midwest Generation LLC (MWG) related to power plants that were sold in April 2014 to NRG Energy (NYSE: NRG).
On Jan. 22, the parties to the case held a telephone conference. The hearing officer for the case noted in a Jan. 22 order that MWG said it was “exploring its options” in light of the board’s Jan. 8 refusal to dismiss the case. The hearing officer ordered a March 19 telephone conference to see where the case stands at that point.
In December 2012, Sierra Club filed a two-count complaint alleging that Midwest Generation had violated Section 9(a) of the Environmental Protection Act and Section 201.141 of the Board’s air pollution regulations. Sierra Club alleges that SO2 emission violations occurred at four coal-fired power plants that were at that point owned and operated by MWG: Joliet #9 and #29: Powerton Generating Station; Waukegan Generating Station; and Will County Generating Station.
This enforcement action was stayed for a number of months by MWG’s filing of a Chapter 11 bankruptcy petition. After the automatic stay was lifted, MWG on Feb. 18, 2014, filed a motion to dismiss the complaint as frivolous.
“The Board has also received Sierra Club’s response and MWG’s reply,” said the Jan. 8 board ruling. “For the reasons below, the Board today denies the motion to dismiss in its entirety and accepts the complaint for hearing. MWG has 60 days from the date of this order to file an answer.”
In part MWG raised issues of federal versus state authority and said the state board has no power to act in this area. “While the possibility exists that the Board is unauthorized to grant the relief sought, Section 33 of the Act gives the Board ‘wide discretion in fashioning a remedy,'” said the board ruling. “Accordingly, the relief sought by Sierra Club in this case is not necessarily outside the Board’s authority to impose. For these reasons, the Board finds that the complaint is not frivolous based on the relief it seeks.”
MWG also urged dismissal for Sierra Club’s failure to join U.S. EPA and the Illinois EPA, as well as other sources of SO2 emissions, as respondents to this proceeding. The board ruled: “The Board is not persuaded, however, that any of these entities is a necessary party, i.e., one whose absence makes it impossible for the Board to make a ‘complete determination’ of this controversy.”