United States District Court, C.D. Illinois, Urbana Division
COLIN S. BRUCE, District Judge.
Plaintiff, Sierra Club Inc., filed a Complaint (#1) against Defendants, Futuregen Industrial Alliance Inc. and AmerenEnergy Medina Valley Cogen LLC, on December 9, 2013. The complaint alleged that Defendants were attempting to construct a major modification without a PSD permit in violation of the Clean Air Act. On February 21, 2014, Defendants filed a Motion for Judgment on the Pleadings and a Joint Motion to Dismiss (#13). This court held a hearing on Defendants' motion on May 16, 2014. Following arguments, the parties were asked to brief the issue of review before the Illinois Pollution Control Board (IPCB). Plaintiff and Defendants filed briefs in accordance with this court's request on May 30, 2014. After a careful review and consideration of the arguments of the parties and the documents they have submitted, this court concludes that Defendants' Motion for Judgment on the Pleadings and Joint Motion to Dismiss (#13) should be GRANTED.
In September 2010, Defendant Futuregen Industrial Alliance Inc. signed a Cooperative Agreement with the United States Department of Energy to develop the FutureGen 2.0 Project (Project). Defendant AmerenEnergy Medina Valley Cogen LLC was a partner to the Project. The Project is a full-scale coal-fired oxy-combustion power plant at the existing Meredosia Energy Center (Center) in Meredosia, Illinois. The Project will physically replace an existing boiler at the Center with a new oxy-combustion capable boiler that will use the existing Turbine 4 and other auxiliary equipment. Other existing boilers at the Center have been shut down and will not be restarted.
On February 9, 2012, Defendants submitted an initial application to authorize construction of the Project to the Illinois Environmental Protection Agency (IEPA). Defendants then submitted a revised permit application on June 18, 2013. The IEPA issued a draft construction permit in August 2013 and held a public comment period regarding the draft permit from August 24, 2013 through November 8, 2013. Plaintiff participated in the process by providing written comments to the IEPA discussing their concerns with the draft permit. Specifically, Plaintiff expressed its concern that the Project would cause a significant net emission increase which would necessitate a PSD permit. Plaintiff was able to orally challenge the Project at a hearing before the IEPA. Again, Plaintiff argued that the Project required a PSD permit.
On December 9, 2013, Plaintiff filed its Complaint (#1) with this court, alleging that Defendants were attempting to construct a major modification to the Center without a PSD permit. The complaint stated that the claim was being brought under the citizen suit provision of the Clean Air Act. An Amended Complaint (#21) was filed on March 14, 2014.
On December 13, 2013, the IEPA issued an air pollution control construction permit to Defendants for construction of the Project. The decision noted Plaintiff's concerns and explicitly rejected its argument that a PSD permit is required for the Project. The IEPA stated that "the proposed facility is not a major project under the federal PSD rules." It further noted that there were "contemporaneous decreases in emissions from the permanent shutdown of the existing boilers at the Meredosia Energy Center such that the net increases in emissions of regulated NSR pollutants from this project will not be significant."
On February 2, 2014, Defendants filed a Motion for Judgment on the Pleadings and a Joint Motion to Dismiss (#13). In the motion, Defendants argued that this court: (1) lacks subject matter jurisdiction under 42 U.S.C. § 7604(a)(3) because Defendants had the proper permit; and (2) should abstain from hearing the case because Plaintiff's complaint is simply a collateral attack on the IEPA's decision. On March 10, 2014, Plaintiff filed a Memorandum in Opposition (#17) to Defendants' motion. Defendants' Reply (#28) to Plaintiff's memorandum was filed on April 7, 2014.
This court held oral arguments with reference to Defendant's Motion (#13) on May 16, 2014. During the arguments, Defendants' attorney stated that abstention is appropriate because the federal government has delegated its authority to determine which projects in Illinois require a PSD permit to the IEPA. Further, Illinois has established a procedure, through the IPCB, where any party, including Plaintiff, can challenge the IEPA's decision not to grant Defendants a PSD permit. Therefore, Defendants' attorney argued that because Plaintiff has an available state forum in which to challenge the IEPA's decision, this court should abstain.
Plaintiff's attorney argued that abstention was not appropriate because the IEPA works as a contractor for the United States Environmental Protection Agency, therefore, they are simply applying federal law and regulations. Further, Plaintiff's counsel stated that he simply did not "know the procedure in front of the Illinois Pollution Control Board" and that it was difficult for Plaintiff to find and hire an Illinois attorney that could appeal the IEPAs decision before the IPCB. He speculated that an appeal before the IPCB would not allow Plaintiff the discovery it required.
At the conclusion of the hearing, this court asked the parties to submit briefs detailing the discovery available from the IPCB and how that would impact both sides' ability to present their case. Plaintiff's brief acknowledged that the IPCB would accept a citizen's enforcement complaint, however, it argued that the Illinois forum was not convenient. Plaintiff claimed that the IPCB was not an acceptable forum because: (1) Plaintiff is not certain whether it can pursue its claim in front of the IPCB; (2) Plaintiff believes that discovery may be more limited than under the federal rules; (3) Plaintiff believes the IPCB cannot issue subpoenas to out of state entities and personnel; and (4) no attorney's fees are available to Plaintiff for any action before the IPCB. Defendants' brief argued that the same methods of discovery under the Federal Rules are available before the IPCB with regard to document production requests, requests to admit, interrogatories, and depositions. Further, Defendants outlined how the IPCB could issue subpoenas to out of state third parties.