BENTON – Energy companies that own Prairie State power plant near Marissa have operated in accordance with Illinois law since they started burning coal, according to a motion they filed to dismiss a suit seeking to shut it down.
Their counsel Robert Middleton of Chicago claimed a clean air complaint that Sierra Club filed in March didn’t allege any violation of law.
He claimed the club purported to accuse Prairie State of failing to comply with the national Clean Air Act and state regulations, but the club didn’t specify any failure.
He also claimed Prairie State employs more than 600 persons and provides affordable, reliable, and sustainable electricity to about 2.5 million families across the Midwest and middle Atlantic.
Middleton added that it operates the most technologically advanced coal fired plant in Illinois.
He claimed owners installed $1 billion worth of environmental controls.
Megan Wachspress of Oakland, California, filed the club’s suit under a Clean Air Act provision allowing citizens to sue when regulators don’t.
She claimed the club has more than 730,000 members with more than 27,000 in Illinois.
She also claimed Prairie State emits carbon dioxide, sulfur dioxide, nitrogen dioxides, and particulate matter in violation of the Clean Air Act and state regulations.
Prairie State allegedly applied for a clean air permit in 2010 and it operates unlawfully because the Illinois environmental protection agency didn’t issue a permit.
Wachspress claimed the lack of agency action on the application amounted to constructive denial.
Middleton argued in his motion to dismiss that instead of alleging a straightforward violation, the club asked the court to create an unprecedented doctrine of constructive denial.
He claimed Illinois law states that failure to have a clean air permit shall not be a violation and a source may be operated if a complete permit application has been timely submitted.
He added that the agency approved construction pursuant to a permit that contained emission limits, operating conditions, and requirements for record keeping and reporting.
Middleton claimed Prairie State applied for a clean air permit prior to initiation of operations.
“Prairie State has ensured that its Clean Air Act program permit application remains up to date and complete, and the agency has not questioned the timeliness or the completeness of the application,” he wrote.
Middleton claimed Prairie State has met two conditions for operating without a clean air permit.
First, he wrote, the agency issued a prevention of significant deterioration permit in 2005, with amendments in 2011.
He claimed it remains effective and it regulates operations.
Second, he wrote, Prairie State applied for a clean air permit prior to initiation of operations.
He claimed Prairie State updated the application in 2020.
He added that because the agency hasn’t issued the permit or denied the application, by law Prairie State was and remains authorized to operate.
“It seems that plaintiff hopes to give the impression that Prairie State has been operating the facility for over a decade without any permit and that the state and federal governments have simply ignored the facility’s existence,” he wrote.
Middleton claimed Illinois law explicitly shields sources from claims of not having an operating permit when a timely and complete application has been submitted.
He claimed the shield has no sunset provision and the law provides only that the shield can be lost if the applicant fails to submit additional information requested by the agency.
“The complaint does not allege any such failure by Prairie State,” he wrote.
Middleton claimed the club assumed a false premise that the plant wasn’t subject to limits.
He added that it’s subject to numerous limits established by and enforceable through the permit for prevention of significant deterioration and through federal and state conditions.
Illinois allegedly requires Prairie State to comply with all conditions of the permit for prevention of significant deterioration until a clean air permit is issued.
Middleton claimed the club had two opportunities to seek judicial review of Prairie State’s permit for prevention of significant deterioration.
He also claimed allowing parties to rehash issues settled in the permit process would upset reasonable expectations of operators.
Untress Quinn and former Madison County associate judge Donald Flack of Armstrong Teasdale in Edwardsville also represent Prairie State.
Magistrate Judge Reona Daly has set trial in July 2024.
Owners of Prairie State Generating Company
American Municipal Power in Columbus, Ohio
Illinois Municipal Electric Agency in Springfield
Indiana Municipal Power Agency in Carmel.
Kentucky Municipal Power Agency in Paducah.
Missouri Joint Municipal Electric Utility in Columbia.
Northern Illinois Municipal Power Agency in Rochelle.
Prairie Power in Springfield.
Southern Illinois Power Cooperative in Marion
Wabash Valley Power Alliance in Indianapolis