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February 19, 2003


The opinion of the court was delivered by: Michael J. Reagan, District Judge



In its latest complaint, the United States of America ("the Government") brings suit against Defendants, Illinois Power Company ("Illinois Power") and Dynegy Midwest Generation, Inc. ("Dynegy") pursuant to the Clean Air Act, 42 U.S.C. § 7401-7671q ("the Act"), for injunctive relief and the assessment of civil penalties for violations of the Prevention of Significant Deterioration ("PSD") provisions of the Act, 42 U.S.C. § 7470-92, the New Source Performance Standards ("NSPS") of the Act, 42 U.S.C. § 7411, and the federally approved and enforceable Illinois State Implementation Plan ("Illinois SIP").

In general, the Government alleges that Illinois Power modified three electric generating units at the Baldwin Power Station coal-fired electricity generating power plant in Randolph County, Illinois which was operated by Illinois Power and then later by Dynegy without obtaining appropriate permits and without installing the best available control technology to control emissions of nitrogen oxides, sulfur dioxide, and particulate matter as the Clean Air Act, applicable federal regulations, and the Illinois SIP require.

Specifically, the Government makes three claims for relief. First, the Government alleges that nine construction projects undertaken between 1982 and 1994 were done without obtaining a construction permit and were operated thereafter without an operating permit. Second, the Government alleges that two of the nine construction projects were done without notifying the United States Environmental Protection Agency ("EPA") of the projects before they began, without conducting a performance test within the regulatory time period, without informing the EPA of the test results, and without ensuring that the modifications complied with the NSPS emissions requirements. Third, the Government alleges that the nine construction projects were done without state construction permits and were thereafter operated without operating permits in violation of Illinois' federally enforceable State Implementation Plan.

Now before the Court is Illinois Power and Dynegy's Joint Motion for Partial Summary Judgment (Doc. 338) on the Government's first and third claims for relief, as well as a portion of the second claim.


As the United States Supreme Court as stated, summary judgment is not a procedural shortcut disfavored under the law, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). See also United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). See also Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the Court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23. See also Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Anderson, 477 U.S. at 248; See also JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Id. Irrelevant or unnecessary facts do not deter summary judgment — even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992).


The Clean Air Act establishes a regulatory scheme designed "to protect and enhance the quality of the Nation's air so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. § 7401(b)(1). To accomplish this goal, the Act requires the Administrator of the EPA to identify and prepare air quality criteria for each air pollutant, emissions of which may endanger public health or welfare, and the presence of which results from numerous or diverse mobile or stationary sources. 42 U.S.C. § 7409. Thereafter, the EPA is required to promulgate regulations establishing national ambient air quality standards ("NAAQS") specific to each air pollutant. Id.
To promote the NAAQS, each state is required to designate those areas within its boundaries where the air quality is better or worse than the NAAQS for each criteria pollutant. An area that meets the NAAQS for a particular pollutant is an "attainment" area, an area that does not meet the NAAQS is a "nonattainment" area, and an area that cannot be classified due to insufficient data is "unclassifiable." To ensure that the attainment areas continue to maintain the national standards, the Act sets forth requirements for the prevention of significant deterioration ("PSD") of air quality in these areas. 42 U.S.C. § 7470-7492. The federal PSD regulations are set forth at 40 C.F.R. § 52.21.
In furtherance of the goal to prevent deterioration of the current air quality, the Act also requires the Administrator of the EPA to publish a list of categories of stationary sources that emit or may emit any air pollutant and to promulgate regulations establishing federal standards of performance for "new sources" of air pollutants within each of these categories. 42 U.S.C. § 7411(b)(1)(A)-(B). "New sources" are defined as stationary sources, the construction or modification of which is commenced after the publication of the regulations or proposed regulations prescribing a standard of performance applicable to each source. 42 U.S.C. § 7411(a)(2). These standards are known as New Source Performance Standards ("NSPS") and are designed to assure that any new construction or modification of an existing structure is completed within the regulations of the Clean Air Act.
To accomplish these goals, the Act mandates that each state adopt a State Implementation Plan ("SIP") that provides for the maintenance, implementation, and enforcement of the NAAQS, such as emission limitations and such other measures as may be necessary to prevent significant deterioration of air quality. 42 U.S.C. § 7410. Each state's SIP is enforceable by the EPA. 42 U.S.C. § 7413(a)(1). In 1972, Illinois complied with the Act and adopted its SIP. As mandated, Illinois' SIP contains a provision prohibiting the commencement of construction of a new emission source or modification of an existing source without first obtaining a construction permit. 35 IAC § 201.142.


A. Preconstruction Permits Claims (First Claim & Portion of Third Claim)

As stated above, the Government alleges that nine modification projects constructed at Baldwin Station between 1982 and 1994 were done without obtaining preconstruction permits. In support of their motion, Defendants argue that all of the alleged violations at issue occurred more than five years before the Government filed its initial complaint and are barred by the five-year statute of limitations provided under the general federal statute of limitations, 28 U.S.C. § 2462.

In opposition, the Government concedes that the five-year statute of limitations period applies, but argues that the alleged violations are continuing in nature and toll the statute of limitations. In other words, the Government argues that each day of operation at Baldwin Station constitutes additional violations of the ...

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