Prairie Rivers Network v. Dynegy Midwest Generation, LLC
| Decision Date | 14 November 2018 |
| Docket Number | Case No. 18-CV-2148 |
| Citation | 350 F.Supp.3d 697 |
| Parties | PRAIRIE RIVERS NETWORK, Plaintiff, v. DYNEGY MIDWEST GENERATION, LLC, Defendant. |
| Court | U.S. District Court — Central District of Illinois |
Ellyn J. Bullock, Solberg & Bullock LLC, Champaign, IL, Mychal R. Ozaeta, EarthJustice, Philadelphia, PA, Jennifer L. Cassel, Thomas J. Cmar, EarthJustice, Oak Park, IL, for Plaintiff.
Daniel John Deeb, James Michael Showalter, Joshua R. More, Ryan Cullen Granholm Schiff Hardin LLP, Chicago, IL, Michael L. Raiff, Gibson Dunn & Crutcher LLP, Dallas, TX, Philip Stephen Gidiere, III, Balch & Bingham LLP, Birmingham, AL, for Defendant.
Plaintiff, Prairie Rivers Network, filed this citizen enforcement action against Defendant Dynegy Midwest Generation, LLC for violations of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1311 and 1342, at the Vermilion Power Station in Vermilion County, Illinois, on May 30, 2018. Defendant filed a Motion to Dismiss (# 14) on August 29, 2018, to which Plaintiff filed a Response (# 19) on September 26, 2018. Defendant filed its Reply (# 21) on October 9, 2018. The motion is now fully briefed and ready for ruling. For the following reasons, the Motion to Dismiss (# 14) is GRANTED.
The following background is taken from the allegations in Plaintiff's Complaint (# 1). At this stage of the proceedings, the court must accept as true all material allegations of the complaint, drawing all reasonable inferences therefrom in the plaintiff's favor. Lewert v. P.F. Chang's China Bistro, Inc. , 819 F.3d 963, 966 (7th Cir. 2016).
Defendant has discharged, and is discharging on an ongoing basis, pollutants into the Middle Fork of the Vermilion River ("the Middle Fork") from numerous, discrete, unpermitted seeps on the riverbank. Although Defendant holds a permit that authorizes the company to discharge pollutants from the Vermilion Power Station to the Middle Fork through nine external outfalls, Defendant's discharge of pollutants into the Middle Fork from these seeps violate the CWA because they are not authorized by any permit and are contrary to the limited authorization to discharge within Defendant's discharge permit. Defendant also discharged and is discharging on an ongoing basis, pollutants into the Middle Fork in concentrations, colors, and with characteristics that violate Illinois effluent limits and water quality standards that are incorporated as conditions of the Vermilion permit. By violating these permit conditions, Defendant is also in violation of the CWA.
Plaintiff is an Illinois non-profit organization with more than 1,000 members that champions clean, healthy rivers and lakes and safe drinking water to benefit the people and wildlife of Illinois. Plaintiff advocates public policies and cultural values that sustain ecological health and biological diversity of water resources and aquatic ecosystems. Plaintiff holds events for members of the organization and the public along and on the Middle Fork, including immediately downstream of the pollution and discharge points of Defendant. Its members, some of whom live, work, and recreate around the Middle Fork, have had their use and enjoyment of the Middle Fork harmed by Defendant's unauthorized and prohibited discharge of pollutants.
Defendant, a Delaware corporation, owns the Vermilion Power Station. Defendant is a subsidiary of Vistra Energy, which is headquartered in Texas.
The Vermilion Power Station (VPS) is a retired coal-fired power plant located five miles north of Oakwood, Illinois. The plant sits on the west bank of the Middle Fork, in a 17-mile section designated as Illinois' only National Scenic River and first State Scenic River. From the mid-1950s until 2011, the plant burned coal and generated millions of tons of coal combustion residuals ("coal ash"). Defendant and its predecessor mixed the coal ash generated at VPS with water and sluiced it into three unlined coal ash pits, known as the Old East Ash Pond, the North Ash Pond System, and the New East Ash Pond. When the plant opened in 1955, ash was flushed into the Old East Ash Pond. That pit was in service until the North Ash Pond System, a two-cell pit, was built in the mid-1970s. In 1989, the coal ash was diverted to the New East Ash Pond, which received coal ash until the plant's closure in 2011. Although the coal ash pits are out of service, all three continue to store coal ash-including coal ash as deep as 44 feet in some locations. The three unlined coal ash pits contain an approximate total of 3.33 million cubic yards of coal ash. Defendant continues to own these pits and remains responsible for maintaining them, as well as performing any remaining activities at the plant.
Coal ash wastewater such as that in the coal ash pits contains heavy metals and other toxic pollutants that are harmful and at times deadly to people, aquatic life, and animals. Among the contaminants found in coal ash are arsenic, barium, boron, chromium, lead, manganese, molybdenum, nickel, and sulfate. These contaminants can inflict severe harm, including brain damage, cancer
, learning disabilities, birth defects, and reproductive defects. Arsenic is a well-known carcinogen that also damages the nervous system. Manganese is associated with learning disabilities and nervous system impairment, and can render water unusable by discoloring the water, giving it a metallic taste, and causing black staining. Molybdenum has been linked to gout (joint pain, fatigue), increased blood uric acid levels, high blood pressure, liver disease, and potential adverse impacts on the reproductive system. Boron, a dependable indicator of coal ash contamination, can lead to reduced sperm count, testicular degeneration, birth defects, and low birth weight among humans.
Defendant's limited authorization to discharge wastewater from the VPS is set out in NPDES Permit IL0004057 ("the Permit"), granted by the Illinois Environmental Protection Agency (IEPA) pursuant to the IEPA's delegated authority under the CWA, 33 U.S.C. § 1342(b). The Permit regulates discharges of pollutants from the VPS, specifying which wastewater streams may be discharged from which points at the plant. It also establishes effluent limitations, as well as monitoring and reporting requirements for certain pollutants within those wastewater streams. To this effect, the Permit defines nine external outfalls at the VPS, each of which authorizes limited discharges of pollutants at specific outfalls to the Middle Fork.
Standard Condition 23 of the Permit states that Applicable Illinois regulations define "sludge" as "any solid, semisolid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility or any other such waste having similar characteristics and effects." 35 Ill. Adm. Code § 301.395. Applicable Illinois law defines "disposal" as being "the discharge, deposit, injection, dumping, spilling, leaking, or placing of any waste or hazardous waste into or on any land or water ... so that such waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters." 415 Ill. Comp. Stat. 5/3.185.
Standard Condition 25 provides: "The permittee shall comply with, in addition to the requirements of the permit, all applicable provisions of 35 Ill. Adm. Code Subtitle C, Subtitle D, Subtitle E, and all applicable orders of the [Illinois Pollution Control] Board."
Subtitle C of the Illinois Administrative Code provides that 35 Ill. Adm. Code § 304.106. The term "effluent" is defined, in relevant part, as "any wastewater discharged, directly or indirectly, to the waters of the State or to any storm sewer, and the runoff from land used for the disposition of wastewater or sludges." 35 Ill. Adm. Code § 301.275.
Subtitle C of the Illinois Administrative Code further provides that "[n]o person shall cause or allow the concentration of the following constituents in any effluent to exceed the following levels, subject to the averaging rules contained in Section 304.104(a)." Ill. Adm. Code § 304.124(a). The current iteration of the Permit was issued and became effective on March 7, 2003.
Dating back to at least May 2013, the coal ash pits at VPS have discharged, and continue to discharge on an ongoing basis, pollutants – including, but not limited to, arsenic, barium, boron, chromium, iron, lead, manganese, molybdenum, nickel, sulfate, and totally dissolved solids – into the Middle Fork from numerous, discrete, unpermitted seeps on the riverbank adjacent to the North Ash Pond and Old East Ash Pond in areas where there are no permitted outfalls.
The Middle Fork is a surface water body within the jurisdiction of the CWA as well as a water of the state of Illinois. The Middle Fork has no specific use designation and, as such, is subject to the general use standards codified at 35 Ill. Adm. Code Part 302 Subpart B, which forms part of 35 Ill. Adm. Code Subtitle C. See 35 Ill. Admin. Code §§ 303.201, 302.101(b). The Middle Fork is also subject to the general effluent limitations set forth at 35 Ill. Adm. Code Part 304 Subpart A, which also forms part of 35 Ill. Adm. Code Subtitle C. See id. § 304.101(a).
Groundwater monitoring at the North Ash Pond System and Old East Ash Pond was performed from 1992 through 2007, and again...
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