Natural Res. Def. Council v. Ill. Power Res., LLC

• Citation: 202 F.Supp.3d 859
• Decision Date: 23 August 2016
• Docket Number: Case No. 13-cv-1181
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, Respiratory Health Association, and Sierra Club, Inc., Plaintiffs, v. ILLINOIS POWER RESOURCES, LLC and Illinois Power Resources Generating, LLC, Defendants.
• Court: U.S. District Court — Central District of Illinois

202 F.Supp.3d 859

NATURAL RESOURCES DEFENSE COUNCIL, Respiratory Health Association, and Sierra Club, Inc., Plaintiffs,
v.
ILLINOIS POWER RESOURCES, LLC and Illinois Power Resources Generating, LLC, Defendants.

Case No. 13-cv-1181

United States District Court, C.D. Illinois, Peoria Division .

Signed August 23, 2016

202 F.Supp.3d 862

Ann Alexander, Meleah Anne Geertsma, Natural Resources Defense Council, Chicago, IL, for Plaintiffs.

Renee Cipriano, Barry S. Hyman, Bina R. Joshi, Francis X. Lyons, Schiff Hardin LLP, Chicago, IL, Andrew Nicholas Sawula, Schiff Hardin LLP, Lake Forest, IL,

202 F.Supp.3d 863

Charles R. Schmadeke, J. William Roberts, Hinshaw & Culbertson, Springfield, IL, for Defendants.

OPINION & ORDER

JOE BILLY McDADE, United States Senior District Judge

This matter is currently before the court on Plaintiffs' motion for partial summary judgment (Doc. 104) and Defendants' motion for summary judgment (Doc. 108). Each motion is fully briefed and the Court held oral argument on July 13, 2016, so the motions are ready for decision. For the reasons explained below, each motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND ¹

In this case, three not-for-profit environmental organizations—Natural Resources Defense Council, Respiratory Health Association, and Sierra Club, Inc.² —have sued Illinois Power Resources Generating, LLC ("IPRG"), which is the owner and operator of the E.D. Edwards Power Plant ("Edwards"), and IPRG's parent-company, Illinois Power Resources, LLC ("IPR"), on behalf of themselves and their members.³ Plaintiffs have alleged that Edwards was out of compliance with certain Clean Air Act emissions standards on thousands of occasions between 2008 and 2014. They have brought the lawsuit pursuant to the Clean Air Act's citizen suit provision, 42 U.S.C. § 7604, which allows "any person" to commence a civil suit against, among others, persons alleged to be in violation of an emission standard or limitation.

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. These units are subject to a variety of emission requirements that are designed to ensure compliance with ambient air quality standards established by the United States Environmental Protection Agency ("U.S. EPA") pursuant to the Clean Air Act. See 42 U.S.C. §§ 7409 -10. Edwards' emission requirements at issue in this case derive from two sources: (1) the Illinois State Implementation Plan ("SIP"), which is a set of regulations intended to implement the ambient air quality standards;⁴ and (2) an operating permit ("Permit") issued by the Illinois EPA on June 10, 2004.⁵

202 F.Supp.3d 864

Both the Permit and the SIP limit the amount of particulate matter that Edwards can emit while it is operating.⁶ See 35 Ill. Admin. Code §§ 212.202, 212.203 (limiting particulate matter emissions from certain power plants that existed prior to April 14, 1972); Permit Condition 2 (Doc. 104-8 at 1). They also, subject to certain exceptions that are discussed more fully below, limit the opacity of the plume emanating from Edwards' two smokestacks.⁷ See 35 Ill. Admin. Code § 212.123 (limiting opacity for certain power plants that existed prior to April 14, 1972 to thirty percent); Permit Condition 3 (Doc. 104-8 at 2). 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. See 35 Ill. Admin. Code §§ 201.401, 201.405 ; Permit Condition 4 (Doc. 104-8 at 2). These reports "shall be based on six minute averages of opacity" and must contain "[t]he percent opacity for each continuous opacity excess period;" and "[t]he start and stop time in six minute increments of any opacity measurements in excess of the limitation." 35 Ill. Admin. Code § 201.405(c). The quarterly reports must also identify "[t]he cause of the excess emissions; if known." See Permit Condition 4(a)(i)(D) (Doc. 104-8 at 2); 35 Ill. Admin. Code § 201.405(a)(4). To comply with Permit Condition 4(a)(i)(D), Edwards includes in its reports "reason codes" for opacity exceedances, including codes such as "01-Excess Emission—Startup/Shutdown," "02—Excess Emission—Control Equipment Problems," "03—Excess Emission—Process Problems," and "04—Excess Emission—Other Known Causes."

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.⁸ 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. And, in Count Three, Plaintiffs have alleged that

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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. See 35 Ill. Admin. Code § 212.124(d)(2)(A) (explaining that for certain power plants, opacity exceedances may also be deemed particulate matter exceedances).

On the merits, 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.

Plaintiffs concede that Defendants may be able to prove a defense in some instances, so they have excluded certain exceedances from their motion. These include: (1) each exceedance identified in the quarterly reports as being associated with a startup; (2) eight exceedances in which Edwards submitted to the Illinois EPA a malfunction report indicating that opacity exceedances occurred during a malfunction or breakdown; and (3) with respect to only the third claim for relief, each exceedance that occurred within sixty days prior to a particulate matter stack test conducted by Defendants. For the remaining exceedances, however, Plaintiffs argue that the defenses fail as a matter of law.

LEGAL STANDARD

Summary judgment shall be granted where "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). In ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. SMS Demag Aktiengesellschaft v. Material Scis. Corp. , 565 F.3d 365, 368 (7th Cir.2009). All inferences drawn from the facts must be construed in favor of the non-movant. Moore v. Vital Prods., Inc. , 641 F.3d 253, 256 (7th Cir.2011).

To survive summary judgment, the "nonmovant must show through specific evidence that a triable issue of fact remains on issues on which [it] bears the burden of proof at trial." Warsco v. Preferred Technical Grp. , 258 F.3d 557, 563 (7th Cir.2001) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). If the evidence on record could not lead a reasonable jury to find for the non-movant, then no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. See McClendon v. Ind. Sugars, Inc. , 108 F.3d 789, 796 (7th Cir.1997). At the summary judgment stage, the court may not resolve issues of fact; disputed material facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Cross-motions for summary judgment are considered separately, and each party requesting summary judgment must satisfy the above standard before judgment will be granted in its favor. See Tegtmeier v. Midwest Operating Eng'rs Pension Trust Fund , 390 F.3d 1040, 1045 (7th Cir.2004) ; Santaella v. Metro. Life Ins. Co. , 123 F.3d 456, 461 (7th Cir.1997). Thus, the facts are construed in favor of the non-moving party, which differs depending on which motion is under consideration. Tegtmeier , 390 F.3d at 1045.

DISCUSSION

Plaintiffs and Defendants each move for summary judgment on the question of whether Plaintiffs have Article III standing...