Natural Res. Def. Council v. Ill. Power Res. Generating, LLC
| Decision Date | 15 January 2019 |
| Docket Number | Case No. 1:13-cv-1181 |
| Parties | NATURAL RESOURCES DEFENSE COUNCIL, RESPIRATORY HEALTH ASSOCIATION, and SIERRA CLUB, INC., Plaintiffs, v. ILLINOIS POWER RESOURCES GENERATING, LLC, Defendant. |
| Court | U.S. District Court — Central District of Illinois |
This matter is before the Court on Plaintiffs' Motion for Partial Summary Judgment on Remedy (Doc. 184) and Defendant's Motion for Summary Judgment Concerning Injunctive Relief (Doc. 180). Each motion has been fully briefed, and the Court has determined oral argument is not necessary. (Doc. 226). The parties have submitted supplemental briefing at the Court's direction (Docs. 227, 228, 232, 233). The motions are therefore ripe for decision. For the reasons explained below, both motions are DENIED.
The Edwards Power Station (Edwards) is a coal-fired power plant located in Bartonville, Illinois. It has been owned and operated by Defendant Illinois PowerResources Generating, LLC, (IPRG) since December 2, 2013.2 Edwards has two smokestacks; one smokestack serves Unit 2 and served Unit 1 until it was retired on January 1, 2016, and the other smokestack serves Unit 3. The two stacks are within 1,000 feet of each other. Edwards is subject to emission requirements designed to ensure compliance with the ambient air quality standards established by the United States Environmental Protection Agency (EPA) under the Clean Air Act, 42 U.S.C. §§ 7409-10. This case concerns requirements from the Illinois State Implementation Plan (SIP) implementing the Clean Air Act and the operating permit issued to Edwards by the Illinois Environmental Protection Agency (IEPA) on June 10, 2004, as revised on July 1, 2004, pursuant to the SIP.3 Among other things, the SIP and operating permit limit the amount of particulate matter (PM) Edwards may emit and the opacity of the plume emanating from Edwards's two smokestacks.4 See 35 Ill. Admin. Code §§ 212.202, 212.203, 212.123; (Doc. 104-8 at 1-2).
Plaintiffs are three not-for-profit environmental organizations.5 On April 18, 2013, Plaintiffs filed the instant lawsuit alleging Edwards had violated both its opacity and PM emission standards. (Doc. 1). The liability period in this case began April 18, 2008, and ended June 30, 2014. During that period, Edwards reported toIEPA 2,949 instances in which it had an average opacity of greater than thirty percent for six minutes or longer. Relying on these reports, Plaintiffs sought summary judgment on the issue of liability for opacity exceedances where the quarterly reports did not indicate Edwards was in a state of startup, malfunction, or breakdown and where, though the quarterly reports indicated a state of malfunction or breakdown, no report was submitted to the IEPA. Pursuant to 35 Ill. Admin. Code § 212.124(d)(2)(A), these opacity exceedances would legally constitute violations of the PM limitations. Plaintiffs did not move on the exceedances identified as being associated with startup, identified as being associated with malfunction or breakdown where a report was submitted to IEPA, or PM exceedances within 60 days prior to a PM stack test conducted by Defendant. (Doc. 104-1 at 15-16).
The Court's decision on liability speaks for itself, yet because the parties have raised disagreements regarding it this Opinion must speak for it as well. Suffice it to say, the Court held Defendant (1) had not proven it had not violated its PM limitations under the sole method available to it, (2) could not make out a malfunction or breakdown defense on exceedances during periods not reported to the IEPA in accordance with its operating permit, (3) was liable for opacity exceedances that occurred while Edwards was offline, and (4) was not liable for the presumed PM exceedances at such times. NRDC, 202 F. Supp. 3d at 874-887. Therefore, the Court granted summary judgment to Plaintiffs on all exceedances in they moved on inCounts One, Two, and Three except for the presumed PM exceedances that occurred while Edwards was offline. Id. at 887.6
That was August 2016. In the intervening years, the Court certified three questions for interlocutory appeal under 28 U.S.C. § 1292(b) (Doc. 130), but a divided panel of the Seventh Circuit denied Defendant's petition for permission to appeal (Doc. 132). The parties then stipulated to the dismissal of Illinois Power Resources, LLC, IPRG's then-parent company and co-defendant, against whom Plaintiff had not moved for summary judgment, a claim on which Plaintiff had not requested summary judgment, and the exceedances associated with Counts One, Two, and Three Plaintiffs did not move for summary judgment on. (Doc. 135). The Court denied a request for trial by jury on the facts underlying the damages calculation. (Doc. 144). Following discovery, the parties filed the instant motions on August 31, 2018. (Docs. 180, 184). In the ensuing flurry of briefing, Defendant sought to exclude the testimony of Dr. Joel Schwartz, one of Plaintiffs' expert witnesses, and to strike a declaration by Ian Fisher, counsel for Plaintiff Natural Resources Defense Council. (Docs. 183, 203). The Court denied both requests as well as Plaintiffs' request for oral argument on both motions. (Doc. 226). The Court also ordered supplemental briefing on the Illinois SIP. (Docs. 227, 228).
The facts have continued to develop. IPRG's ultimate parent company became Vistra Energy Corporation rather than Dynegy Incorporated. (Doc. 191). Additionally, Plaintiffs allege thousands more violations of the opacity standardshave occurred between the end of the liability period and the present. And as mentioned above, one of Edwards's three units was retired. Against this backdrop, the Court turns to the parties' cross-motions for partial summary judgment.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine dispute of material fact exists 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "The nonmovant bears the burden of demonstrating that such genuine issue of material fact exists." Aregood v. Givaudan Flavors Corp., 904 F.3d 475, 482 (7th Cir. 2018).
The parties are required to support their assertions that a fact is disputed or cannot be genuinely disputed through citations to evidence in the record. Horton v. Pobjecky, 883 F.3d 941, 948 (7th Cir. 2018). The Court views the record in the light most favorable to the nonmovant and draws all reasonable inferences in favor of the nonmovant. BRC Rubber & Plastics, Inc. v. Continental Carbon Co., 900 F.3d 529, 536 (7th Cir. 2018). The Court "must resist the trap of assessing the credibility of witnesses, choosing between competing inferences or balancing the relative weight of conflicting evidence." Khan v. Midwestern U., 879 F.3d 838, 840 (7th Cir. 2018). But inferences "supported by only speculation or conjecture will not defeat a summary judgment motion." Carmody v. Bd. of Trs. of the U. of Ill., 893 F.3d 397, 401 (7th Cir.2018) cert. denied, No. 18-6160, 2019 WL 113249 (U.S. Jan. 7, 2019) (citation omitted).
In reviewing cross-motions for summary judgment, the Court considers the motions separately and construes the record in the light most favorable to the nonmoving party, which differs depending which motion is being considered. Schlaf v. Safeguard Prop., LLC, 899 F.3d 459, 465 (7th Cir. 2018) (quoting Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998)). The parties are required to satisfy the standard as moving parties on their respective motions and as nonmoving parties when opposing the other side's motion.
Plaintiffs move for summary judgment on nine declarations of law which would narrow, but not settle, issues relating to the calculation of civil penalties and their request for injunctive relief. Defendant moves for summary judgment denying Plaintiffs' request for injunctive relief.
Plaintiffs' Motion for Partial Summary Judgment on Remedy (Doc. 184) asks the Court to make nine declarations which, according to Plaintiffs, would "help focus and lay the groundwork for trial." (Doc. 184-1 at 8). These declarations, Plaintiffs claim, may be made pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and Federal Rule of Civil Procedure 56. (Doc. 184-1 at 24).
The Declaratory Judgment Act provides a remedy, not an intermediate litigation tool. Indeed, § 2201 is entitled "Creation of remedy." See also Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995) (). This is apparent from the plain text: "Any . . . declaration [under the Act] shall have the full force and effect of a final judgment or decree and shall be reviewable as such." § 2201. Plaintiffs do not want a final decree and do not want a remedy. Rather, they seek to "narrow the issues for trial." (Doc. 184-1 at 40). The Declaratory Judgment Act is not meant to take the place of motions in limine or, for that matter, partial summary judgment. To the extent the Court would be authorized to grant these declarations under the Declaratory Judgement Act in the first place, it declines to exercise its discretion to do so. Wilton, 515 U.S. at 288 ().
However, Rule 56(a) allows the Court to grant summary judgment on a part of a claim or defense. Plaintiffs' requested declarations that are a cognizable part of a claim or defense...
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