BENTON - Owners of Prairie State Generating asked U.S. Magistrate Judge Reona Daly to stay a Sierra Club suit seeking to shut down their power plant on Nov. 20.
Their counsel Robert Middleton of Chicago claimed the landscape of the litigation changed dramatically since Aug. 9, when Daly denied a motion to dismiss the suit.
Middleton attached a petition Prairie State filed with the state’s environmental protection agency, seeking action on an application it filed for a clean air permit in 2020.
He also attached a response from the agency stating Prairie State operates legally until the agency acts upon its pending application.
The agency laid out a process taking two years to issue a permit.
Middleton claimed staying the case wouldn’t prejudice Sierra Club because it could participate in the agency’s public comment process.
He claimed the club could pursue any viable claims that remain viable in Daly’s court after the agency has taken final action.
The club sued Prairie State last year, claiming it polluted air over a wide region and operated without a permit.
Prairie State moved to dismiss the suit, claiming the law allowed it to operate under its original construction permit while awaiting a clean air permit.
Daly found she could only speculate as to why Prairie State could operate without a permit “in seeming contravention of federal and state statutes.”
She found that if the agency issued a draft permit, club members could comment, object and advocate regarding its effect.
She found halting operations of a power source for millions of people was an extraordinary request but those issues weren’t currently before her.
Prairie State petitioned the state for action on its application and assistant attorney general Kevin Bonin responded in October.
He stated the agency didn’t dispute that it hadn’t processed the application and the timing of processing was the only outstanding consideration.
“For this coal fired power plant operating with an integrated mine mouth coal facility, the processing of such an application is inherently complex and necessarily arduous," Bonin wrote.
He stated regulations have been promulgated and amended and preparation for public comments and federal agency review would pose significant undertakings.
He stated approval would require two years from the date Prairie State updates its application.
He stated the agency’s clean air unit must continue to process renewal applications among 446 sources throughout the state.
He stated the original permitting of Prairie State represented one of the largest and most time consuming undertakings for the state’s air pollution control program.
He stated the record consisted of about 40,000 pages and a summary contained responses to more than 350 comments raised in the public participation process.
Seventh Circuit appellate judges approved the permit in 2007.
American Municipal Power, Illinois Municipal Electric, Indiana Municipal Power, Missouri Joint Municipal Electric, Prairie Power, Southern Illinois Cooperative, Kentucky Municipal Power, Northern Illinois Municipal Power and Wabash Valley Power built Prairie State and own it.