BENTON - Sierra Club can pursue a claim that Prairie State Generating’s coal burning plant near Marissa must shut down, U.S. Magistrate Judge Reona Daly ruled on Aug. 9.
“To accept plaintiff’s allegations as true, which the court must do regarding most issues in a motion to dismiss, means to accept that defendant has been operating the facility for a decade without any permit,” she wrote.
She found state and federal environmental governments have ignored the facility’s existence.
“The undersigned could only speculate as to why defendant can continue operating without a permit in seeming contravention of federal and state statutes," she wrote.
She found halting the operations of a power source for millions of people is an extraordinary request by any standard.
“Regardless, those issues are not currently before the court,” she wrote.
She found allegations in the club’s complaint sufficient to proceed.
Nine public power providers formed Prairie State, which applied for a permit in 2010.
Prairie State updated the application in 2011.
The state’s environmental protection agency issued a construction permit in 2012 and generation began.
The construction permit provided that each boiler could operate for 180 days after it first sent electricity to the grid.
It provided that upon successful completion of emission testing and demonstration of compliance with applicable limitations, Prairie State could continue to operate.
Prairie State revised its application for a clean air permit in 2020 and no action resulted.
Sierra Club sued Prairie State last year, claiming it emitted pollutants without a permit.
Its attorney Megan Wachspress claimed Prairie State violated sulfur dioxide limits in 2022.
She claimed it also emitted particulate matter, the main cause of haze in the United States.
Prairie State counsel Robert Middleton of Chicago moved to dismiss the complaint, claiming the club failed to plead that it violated any laws.
He quoted a provision in law stating an applicant can operate without a permit until the agency takes final action on an application.
He claimed the complaint assumed a faulty premise that Prairie State isn’t subject to emission limits when in fact it is.
He pointed to emission standards in the construction permit.
He claimed Prairie State is subject to state and federal emission limits.
He claimed the court should defer to the state’s permitting process.
Sierra Club and Prairie State jointly moved to stay discovery pending a decision on Prairie State’s motion and Daly granted it.
A year passed and this May, the club moved to lift the stay on discovery.
“Although Sierra Club agreed to stay discovery in the interest of judicial efficiency, Sierra Club’s members continue to suffer from unlawful pollution from the Prairie State energy campus while the proceedings are stayed,” Daly wrote.
The motion turned moot when Daly reached a decision.
She found the agency had to act on the first application in 2013 and the second in 2022.
“Failure to act does not mean the permit has been issued,” she wrote.
She found Prairie State could have petitioned the pollution control board and obtained judicial review from an appellate court.
She found Prairie State’s interpretation rendered those provisions meaningless.
“Why would any applicant ever petition the pollution control board and seek review by the appellate court for the agency’s failure to rule on its application?” she wrote.
“According to defendant’s interpretation, the applicant could just continue operating simply because it had submitted an application.”
She rejected Prairie State’s defense that the club failed to allege violation of the Clean Air Act.
She found the Act allows civil suits against entities who fail to meet any requirement to obtain a permit as a condition of operations.
She found the club alleged that Prairie State failed to obtain a necessary permit.
She found that prior to issuing a permit the agency issues a draft.
She found that if the agency issued a draft, club members could comment, object, and advocate regarding the effect of the permit.
She found that if the agency issues a permit, members would have additional opportunities to object and advocate before the pollution control board and the appellate court.
“Because defendant continues to operate without a permit, plaintiff’s members have no opportunity to comment or object on defendant’s emissions,” she wrote.
She found it probable that Prairie State would emit less air pollutants under a permit than it does under no permit.
“The construction permit under which defendant contends it is still operating called for testing and reporting requirements to be further developed in the permit,” she wrote.
“Moreover a permit must be renewed every five years, which would allow the agency more frequent opportunities to review defendant’s emissions and more opportunities for plaintiff to object and comment on defendant’s emissions.”
She found the club need not allege specific levels of pollutants that would be emitted under a hypothetical permit.
“It is enough that plaintiff’s concerns will be addressed if more stringent and frequent testing and reporting lead to less emissions by defendant,” she wrote.