Last week, a federal court in the Central District of Illinois held the owner and operator of a coal-fired power plant liable for violations of the Clean Air Act for exceeding particulate matter emission thresholds in the plant’s state operating permit.  NRDC v. Ill. Power Res., LLC, No. 13-cv-1181, 2016 U.S. Dist. LEXIS 111976 (C.D. Ill. Aug. 23, 2016).  The court found that the plaintiffs—three environmental advocacy organizations who filed suit under the citizen suit provision of the CAA—had standing to sue the plant because certain of their individual members suffered injury-in-fact where emitted pollutants that “could cause harm” were present in the witnesses’ general geographic area and the witnesses’ pleasure was somehow diminished by the presence of the pollutants, even where the witnesses could not point to an objective effect of the alleged violation.

The Illinois coal-fired plant in question operates under a 2004 operating permit issued by the Illinois EPA, which derives its permitting authority from its U.S. EPA approved State Implementation Plan.  The permit requires that the plant monitor the average opacity (the degree of reduction of the transmission of light) of its emissions in six-minute intervals. Based on the premise that opacity is an accurate proxy for particulate matter content of emissions, the permit also sets limits on the opacity of the plant’s emission plume during any given six-minute interval, with only certain exceptions for startup, malfunction, or breakdown.  According to the plant’s submissions to the Illinois EPA, there were 2,949 instances between April 18, 2008 and June 30, 2014 in which opacity exceeded its limit for a six-minute interval. 

Based on the plant’s reporting of these instances to the Illinois EPA, three environmental advocacy groups—the Natural Resources Defense Council, the Respiratory Health Association, and the Sierra Club—brought suit against the plant under the Clean Air Act’s citizen suit provision, 42 U.S.C. § 7604, demanding injunctive relief and civil penalties. 

The court held that the plaintiffs had standing because members of each organization suffered an injury-in-fact that was caused by the permit exceedances.  Members of the organizations lived or live anywhere from 8 to 40 miles from the plant and testified regarding their concerns over the potential health effects associated with the presence of particulate matter in the air.  Only two of the witnesses testified that they changed their behavior based on these concerns:  one testified that she travels a further distance from her home than she otherwise would in order to exercise, and another testified that she closes the windows of her home when she would otherwise have them open.  Even still, the court held that the witnesses’ concern over potential health effects was enough to establish standing, reasoning that “they just need to show that their pleasure was diminished because of the pollution” and that because the pollutants attributed to the plant “could cause harm and are present in the geographic area in which the standing witness has an interest,” injury was sufficiently established.

The plant offered two primary defenses as to the merits of the case.  First, it offered expert testimony challenging whether in this particular case the opacity measurements were in fact an accurate proxy for emission of particulate matter.  The court held, however, that because the expert’s testing was not performed within the period of time prescribed by the permit under conditions similar to the prior opacity exceedances, it could not serve to overcome liability.  Second, the plant argued that despite not having so reported the initial violations to the Illinois EPA, many of the exceedances occurred during startup, malfunction, or breakdown and thus should be excepted from violation.  The plant asserted that the exceedances were not originally reported in this manner because of an oral agreement with the Illinois EPA that only exceedances lasting longer than 30 minutes must be reported with the designated codes indicating that they occurred during startup, malfunction, or breakdown.  The court found such an agreement to be inapplicable because it was contrary to the written permit.

Following the court’s decision on summary judgment in the plaintiffs’ favor, the case will proceed to a remedy phase to determine the appropriate injunctive relief and amount of penalties.  

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