Judge dismisses NSR allegations against 5 Ill. power plants

A federal judge has sided with a Midwestern energy company, agreeing to dismiss allegations of Clean Air Act violations at five Illinois coal-fired power plants and partially dismiss claims of violations at a sixth plant.

Judge John Darrah of the U.S. District Court for the Northern District of Illinois last week granted Midwest Generation LLC's request to dismiss nine counts of a 38-count complaint brought by the Obama administration and partially dismissed a 10th count.

The Justice Department and the state of Illinois sued Midwest Generation last summer, saying the utility made major modifications at the plants without installing the required pollution controls (Greenwire, Aug. 27, 2009).

At issue are six Illinois plants that Midwest Generation purchased from Commonwealth Edison Co. in 1999, including Chicago-area plants Crawford Station, Fisk Station, Joliet Station, Waukegan Station and Will County Station, as well as the Powerton Station plant near Peoria.

Prior to that sale, the federal and state governments say, ComEd modified each of the six plants and subsequently operated them without first obtaining the appropriate New Source Review (NSR) permits. Under the NSR program, new and modified sources must obtain prevention of significant deterioration (PSD) permits, which require the installation of the best available pollution controls.


The lawsuit alleges that Midwest Generation violates the PSD provisions every day by continuing to operate plants that ComEd modified without a permit. Those illegal modifications have led to unsafe air quality in the region, including high levels of ground-level ozone and soot that are linked to asthma and other respiratory ailments, the lawsuit says.

But the judge agreed with Midwest's argument that EPA regulations prohibit only the construction or modification of major stationary sources without obtaining the proper pre-construction permits.

Because the violation occurred at the time of construction, Darrah said, Midwest Generation cannot be liable for the modifications that occurred prior to Midwest Generation's ownership of the plants.

"There is no statutory basis for holding Midwest Generation liable for ComEd's actions," Darrah wrote.

Darrah refused to dismiss in its entirety the claim that Midwest Generation constructed major modifications on its Will County plant without first obtaining a PSD permit because the lawsuit argues that the utility made those modifications after buying it from ComEd.

The judge barred claims of monetary relief on that claim, however, because the five-year statute of limitations has expired since the alleged major modifications were made in 2000.

The judge's order did not address additional allegations that Midwest Generation had violated Title V operating permits as well as opacity and soot limitations under Illinois's federally approved pollution control plan.

Several citizen and environmental groups have also intervened in the case, arguing that Midwest Generation's illegal particle pollution has harmed and will continue to harm the public health, environment and economy of neighboring communities.

That complaint is not affected by the judge's order, said Michael Soules, an attorney at the Environmental Law & Policy Center, one of the intervenors in the case.

Attorneys for Midwest Generation were not available for comment.

Click here to read the judge's order.

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