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Environmental and health advocates are cheering a federal judge’s ruling August 23 that a coal plant near Peoria, Illinois violated limits on particulate matter emissions.
The E.D. Edwards coal-fired power plant has been owned by a subsidiary of Dynegy since 2014, when it was transferred as part of a notorious deal wherein Ameren Corp. essentially paid Dynegy $200 million to take five coal plants and related debt off its hands.
The measures Dynegy subsidiary Illinois Power Resources Generating needs to take will be determined in the remedy phase of the trial, which is not yet scheduled. The company could be ordered to install a baghouse or other pollution control equipment, a potentially expensive requirement.
“This verified our contention all along that there were clear violations of air pollution permit requirements,” said Brian Urbazsewski, director of environmental health programs for the Respiratory Health Association, one of the groups representing plaintiffs in the lawsuit.
“This is an issue where neither the state nor federal government enforced these provisions. It took a citizen suit to force compliance. The judge decides what hammer comes down in terms of penalties, deciding how to fix the plant and make the problem go away. Closing the plant would be one way to do that.”
Dynegy spokesman Micah Hirschfield said the company plans to appeal the judge’s ruling, and noted the case will continue to play out over a long time period.
“The Court’s order only relates to liability – it does not impose any damages or require any modification to the operations of Edwards,” he said. “That will be decided in a second phase of the trial – which will likely not occur until late 2017 or 2018. No changes to plant operations or modifications to plant equipment are required at this time.”
A history of violations
Between 2008 and 2013, the plant had violated its permit limits on opacity 2,949 times, according to data the company reports to the Illinois Environmental Protection Agency. In 2013, environmental groups filed a citizen lawsuit under the Clean Air Act on behalf of nearby residents who said they changed their behavior and worried about their health because of air pollution from the plant.
The company argued that since the violations occurred during startup, shut down or maintenance periods, they did not violate the permit. But the plaintiffs argued – and U.S. District Court senior judge Joe Billy McDade agreed – that even if the violations occurred during such periods, the company shirked its legal obligations to report to the Illinois EPA every time 30 percent opacity limits were violated for more than six minutes, and to take measures to stop such occurrences.
Opacity, the amount of light that is obscured by emissions, is considered a measure of the level of particulate matter (PM) emissions, which are linked to increased risk of cardiac, respiratory and other diseases. The company argued that opacity findings during maintenance did not necessarily correspond to high levels of particulate matter, but the judge rejected this claim.
Lawyers with the groups that filed the lawsuit – the Environmental Law & Policy Center, Natural Resources Defense Council, Sierra Club and Respiratory Health Association – all described the ruling as a victory.
“There’s a feeling that these opacity cases are hard to win, but in this one we used the company’s own data to show the judge that there were repeated violations, and he got that,” said NRDC senior attorney David Pettit.
A legal victory
The citizen plaintiffs in the lawsuit included a marathoner who drove 20 miles to run because she was afraid of breathing pollution near the plant, and a neighbor who stopped opening her windows. The company argued that there was no proven risk to the residents, but the judge ruled plaintiffs’ concerns did not have to be proven but rather just reasonable for their suit to move forward.
McDade’s ruling partially upheld and partially denied the plaintiffs’ motion for summary judgment, a type of decision that comes when both parties agree on the facts of the case. In calling for summary judgment, the plaintiffs withdrew several of their claims, including those regarding eight violations wherein the company did report to the IEPA.
But in the vast majority of violations, plant officials did not report to the IEPA by telephone as soon as possible, as the law requires. The judge’s decision noted and ruled against the company’s argument that it had a “side agreement” with the Illinois EPA that exempted it from reporting the violations lasting less than 30 minutes.
“The judge was very clear and forceful on that issue – you can’t ignore the terms of the permit by having a prior agreement that isn’t reflected in the permit some prior agreement,” said ELPC staff attorney Justin Vickers. “If you want to make it so you don’t have to report 6-minute violations, you need to amend your permit to say that.”
Vickers said the judge’s position on this issue was crucial to protect the ability of citizens to keep tabs on pollution.
“Citizens can’t enforce regulations they have no way of knowing about, That’s the point of citizen suits – there are a lot of plants and limited government resources,” Vickers said. “It was important for the judge to let the permit stand on its own and not allow these specious arguments about what was or was not agreed to in backroom deals.”
The plaintiffs also withdrew claims regarding violations that happened within 60 days of a stack test specifically for particulate matter that found particulate matter within allowable limits.
“Our claims were broader overall than what we sought to resolve in the summary judgment phase,” said Sierra Club associate attorney Greg Wannier. “Even though we don’t agree with them [that certain claims should be disregarded], for the purposes of the summary judgment we basically left those out. Theoretically after this ruling we could still seek judgment on liabilities for the remaining exceptions.”
An uncertain future
Speculation about the E.D. Edwards plant’s future has swirled for some time. After the transfer from Ameren to Dynegy, Bloomberg News dubbed it “the coal plant an Illinois town couldn’t give away,” and described how the plant had seemingly lost its relevance since the closure of nearby steel mills and factories it once powered.
Urbaszewski noted that in 2015 the plant burned significantly less coal than in 2012, based on EPA market data showing heat input. In 2012 the plant took in more than 44,000,000 MMBTUs of energy in the form of coal, compared to just over 30,000,000 in 2015.
Since the plant sells its power on an open market run by the Midwest Independent System Operator (MISO), the lower inputs could indicate lower demand for its power, though other factors might also influence input.
“And 2012 was a year when natural gas [price] was really low, it was killing all the coal plants,” said Urbaszewski. “So the fact that in 2015 they were generating even less energy than they were in 2012 gives you an idea that it’s on a downslope. The company has to make a business decision whether they want to install more pollution control equipment to get the plant up to par.”
Last year Dynegy announced it would close the smallest of the plant’s three generating units this year. Meanwhile the plant has been operating on an expired permit under the Clean Air Act for years. Attorneys said it is unclear how McDade’s ruling will affect the likely contentious process of renewing that permit.
The plant has also faced challenges over its storage of toxic coal ash near the Illinois River. A national report by the Sierra Club said of E.D. Edwards: “The accumulated toxic coal ash currently sits in an 89-acre, 32-foot-deep pond near the plant and has caused documented groundwater contamination around the site… By the company’s own reported data, the E.D. Edwards plant discharges over four million gallons of coal ash wastewater into the Illinois River each day. The ash discharge — a cocktail of bottom ash and fly ash — carries with it toxic metals like arsenic, lead and mercury.”
Environmental groups and area residents have for several years been calling on company and elected officials to ease the economic effects and ensure cleanup occurs if or when the coal plant closes, a plea that environmental leaders reiterated after the McDade’s decision.
“You don’t want to drop a financial bomb on the community and throw people out of work,” said Urbaszewski. “You need to be easing the tax burden on the community, retrain workers. The company needs to be a responsible corporate citizen here if they close that plant down. They should really come up with a plan for how that plant will be decommissioned so it’s not an ongoing hazard to the people who live nearby.”