A federal judge on Aug. 23 issued a split decision on summary judgment motions in a 2013 environmental group lawsuit over opacity issues for the coal-fired E.D. Edwards power plant in Illinois.
Judge Joe B. McDade, out of the U.S. District Court for the Central District of Illinois, ruled on plaintiffs’ motion for partial summary judgment and defendants’ motion for summary judgment.
In this case, the Natural Resources Defense Council, Respiratory Health Association and Sierra Club sued Illinois Power Resources Generating LLC (IPRG), which is the owner and operator of the E.D. Edwards Power Plant, and IPRG’s parent company, Illinois Power Resources LLC (IPR). Plaintiffs alleged that Edwards was out of compliance with certain Clean Air Act emissions standards on thousands of occasions between 2008 and 2014.
Edwards is a three-unit coal-fired power plant located in Bartonville, Illinois. Two of its units – Units 1 and 2 – exhaust through a common smokestack. The third exhausts through a second smokestack, the center of which is less than 1,000 feet from the center of the common stack. Edwards’ emission requirements at issue in this case derive from two sources: the Illinois State Implementation Plan (SIP); and an operating permit issued by the Illinois EPA in June 2004. Both the permit and the SIP limit the amount of particulate matter that Edwards can emit while it is operating.
They also, subject to certain exceptions, limit the opacity of the plume emanating from Edwards’ two smokestacks. Because there is a correlation between opacity and particulate matter emission levels, regulators use the degree of opacity as a proxy for the amount of particulate matter that a plant emits. The permit and the SIP require that Edwards continuously monitor its opacity to ensure compliance with the thirty-percent limit, and also make quarterly reports to the Illinois EPA that provide information about periods of excess opacity.
Between April 18, 2008, and June 30, 2014, Edwards reported to the Illinois EPA 2,949 instances in which it had an average opacity of greater than thirty percent for six minutes or longer. Plaintiffs seek partial summary judgment on their first three claims based on these reports.
- In Count One, plaintiffs have alleged that Edwards violated the opacity standards on those reported occasions in which it was not in a state of startup, malfunction, or breakdown.
- In Count Two, plaintiffs have alleged that Edwards violated the opacity standards on those reported occasions in which it may have been in a state of startup, malfunction, or breakdown.
- In Count Three, plaintiffs have alleged that Edwards violated its particulate matter standards. They rely upon the opacity exceedances established in the first two claims in order to establish a derivative violation of the particulate matter standards.
On the merits, the defendants primarily rely upon two regulatory defenses. First, they argue that Edwards was in compliance with its particulate matter limits at all times, including when it was out of compliance with its opacity limits. If correct, this would provide a complete defense to plaintiffs’ first, second, and third claims. Second, they argue that a great number of the opacity exceedances should be excused because they occurred during periods of malfunction or breakdown.
The judge on Aug. 23 concluded that plaintiffs have standing to bring this lawsuit, granted summary judgment to plaintiffs on all opacity exceedances in Counts One and Two for which they have moved for summary judgment, and granted summary judgment to plaintiffs on all exceedances for which they have moved for summary judgment with respect to Count Three except for those opacity exceedances that occurred while the relevant unit was off-line.
Defendants’ motion for summary judgment was granted with respect to those particulate matter exceedances in Count Three that occurred while the relevant unit was off-line, but otherwise denied. Plaintiffs’ motion to exclude certain expert testimony remains pending. By Sept. 1, 2016, plaintiffs need to notify the court whether this order has mooted any of the issues raised in that motion.
At one point in the ruling, the judge concluded that opacity limits continue to apply during periods of maintenance. “Defendants are correct that opacity is most often used as a proxy for particulate matter,” he wrote. “That is why the particulate matter defense in § 212.124(d)(2)(B) exists. But just because particulate matter emissions cannot be measured during times of maintenance or shutdown does not mean that the opacity limits should not apply during those times. Indeed, there are strong policy reasons that it should: opaque clouds that Edwards emits during maintenance activities could have preventable and high amounts of unmeasured particulate matter. It is sensible, then, to subject those emissions to the opacity limits even if the particulate matter defense cannot apply. If Illinois wished to create explicit exemptions from generally applicable opacity limits during periods of maintenance, it could have.”
Notable is that Edwards changed hands, from Ameren Corp. (NYSE: AEE) to Dynegy (NYSE: DYN), during th pendency of this lawsuit. Said Dynegy about this case in its Aug. 4 quarterly Form 10-Q report: “In April 2013, environmental groups filed a CAA citizen suit in the U.S. District Court for the Central District of Illinois alleging violations of opacity and particulate matter limits at our IPH segment’s Edwards facility. The District Court has scheduled the trial date for February 2017. We dispute the allegations and will defend the case vigorously.”
“Old plants like Edwards need to install modern pollution control equipment, but Dynegy has failed to do so, while taking a ‘duct tape and bubble gum’ approach to maintenance,” said NRDC attorney Ann Alexander in an Aug. 23 statement about the court win. “The company may have saved itself money, but Peoria citizens paid the price in dirty air. We’re glad the court recognized that this has gone on long enough.”
“We’re thrilled that Judge McDade is holding Dynegy accountable for the many years that it has spewed out harmful soot, failing residents of Peoria County,” said Jennifer Cassel, an attorney representing RHA. “It’s time for Dynegy to recognize that if it is going to continue to operate the Edwards plant, it must respect the community and the law by installing functional pollution controls.”
The club noted that this court challenge will now shift to a remedy phase when the judge may decide what steps the plant must take to curb its emissions and comply with its permit, and what penalties its operator must pay for the violations.