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U.S. v. ILLINOIS POWER COMPANY
February 19, 2003
UNITED STATES OF AMERICA, PLAINTIFF,
ILLINOIS POWER COMPANY AND DYNEGY MIDWEST GENERATION, INC., DEFENDANTS.
The opinion of the court was delivered by: Michael J. Reagan, District Judge
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
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.
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.
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 §
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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