Natural Resources Defense Council et al v. Ameren Energy Resources Company LLC et al

Filing 124

ORDER & OPINION entered by Judge Joe Billy McDade on 8/23/2016. For the foregoing reasons, Plaintiffs Motion for Partial Summary Judgment 104 is GRANTED IN PART and DENIED IN PART. The Court concludes thatPlaintiffs have standing to bring this lawsu it, grants summary judgment to Plaintiffs on all opacity exceedances in Counts One and Two for which they have moved for summary judgment, and grants summary judgment to Plaintiffs on all exceedances for which they have moved for summary judgment wit h respect to Count Three except for those opacity exceedances that occurred while the relevant unit was off-line. Defendants Motion for Summary Judgment 108 is GRANTED with respect to those particulate matter exceedances in Count Three that occurre d while the relevant unit was off-line, but otherwise DENIED. Plaintiffs Motion to Strike 119 is DENIED AS MOOT. Plaintiffs motion to exclude certain expert testimony 113 remains pending. By September 1, 2016, Plaintiffs shall notify the Court whether this order has mooted any of the issues raised in that motion. IT IS SO ORDERED. (RK, ilcd)

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E-FILED

Tuesday, 23 August, 2016 02:39:09 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
NATURAL RESOURCES DEFENSE
COUNCIL, RESPIRATORY HEALTH
ASSOCIATION, and SIERRA CLUB,
INC.
Plaintiffs,
v.
ILLINOIS POWER RESOURCES, LLC
and ILLINOIS POWER RESOURCES
GENERATING, LLC,
Defendants.

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Case No. 13-cv-1181

OPINION & ORDER
This matter is currently before the court on Plaintiffs’ motion for partial
summary judgment (Doc. 104) and Defendants’ motion for summary judgment (Doc.
108). Each motion is fully briefed and the Court held oral argument on July 13, 2016,
so the motions are ready for decision. For the reasons explained below, each motion
is GRANTED IN PART and DENIED IN PART.
BACKGROUND1
In this case, three not-for-profit environmental organizations – Natural
Resources Defense Council, Respiratory Health Association, and Sierra Club, Inc.2 –

Unless otherwise noted, the facts in the following section are taken from the
undisputed facts as determined by the Court from the parties’ summary judgment
briefing. (See Docs. 104-1, 109, 114, and 116).
2 A fourth Plaintiff, Environmental Law and Policy Center, was voluntarily dismissed
on February 26, 2015. (Doc. 55).
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have sued Illinois Power Resources Generating, LLC (“IPRG”), which is the owner
and operator of the E.D. Edwards Power Plant (“Edwards”), and IPRG’s parentcompany, Illinois Power Resources, LLC (“IPR”), on behalf of themselves and their
members.3 Plaintiffs have alleged that Edwards was out of compliance with certain
Clean Air Act emissions standards on thousands of occasions between 2008 and 2014.
They have brought the lawsuit pursuant to the Clean Air Act’s citizen suit provision,
42 U.S.C. § 7604, which allows “any person” to commence a civil suit against, among
others, persons alleged to be in violation of an emission standard or limitation.
Edwards is a three-unit coal-fired power plant located in Bartonville, Illinois.
Two of its units – Units 1 and 2 – exhaust through a common smokestack. The third
exhausts through a second smokestack, the center of which is less than 1,000 feet
from the center of the common stack. These units are subject to a variety of emission
requirements that are designed to ensure compliance with ambient air quality
standards established by the United States Environmental Protection Agency (“U.S.
EPA”) pursuant to the Clean Air Act. See 42 U.S.C. §§ 7409-10. Edwards’ emission
requirements at issue in this case derive from two sources: (1) the Illinois State
Implementation Plan (“SIP”), which is a set of regulations intended to implement the

Plaintiffs brought their original complaint against Ameren Energy Resources
Generating Company (“AERG”), which owned and operated the Plant from the start
of the relevant time period until December 2, 2013, and its parent company Ameren
Energy Resources Company. (Doc. 44). IPRG, the current owner and operator of the
Plant, assumed AERG’s liabilities following a merger. In their motion for partial
summary judgment, Plaintiffs have only moved for summary judgment against IPRG
and have not moved for summary judgment against IPR. Both Defendants, however,
have moved for summary judgment in their cross-motion. For simplicity’s sake, the
Court may refer to “Edwards” rather than “IPRG” at points in this opinion.

3

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ambient air quality standards;4 and (2) an operating permit (“Permit”) issued by the
Illinois EPA on June 10, 2004.5
Both the Permit and the SIP limit the amount of particulate matter that
Edwards can emit while it is operating.6 See 35 Ill. Admin. Code §§ 212.202, 212.203
(limiting particulate matter emissions from certain power plants that existed prior to
April 14, 1972); Permit Condition 2 (Doc. 104-8 at 1). They also, subject to certain
exceptions that are discussed more fully below, limit the opacity of the plume
emanating from Edwards’ two smokestacks.7 See 35 Ill. Admin. Code § 212.123
(limiting opacity for certain power plants that existed prior to April 14, 1972 to thirty
percent); Permit Condition 3 (Doc. 104-8 at 2). Because there is a correlation between
opacity and particulate matter emission levels, regulators use the degree of opacity
as a proxy for the amount of particulate matter that a plant emits.
The Permit and the SIP require that Edwards continuously monitor its opacity
to ensure compliance with the thirty-percent limit, and also make quarterly reports

The SIP was adopted by the Illinois Pollution Control Board and approved by the
U.S. EPA pursuant to 42 U.S.C. § 7410.
5 The SIP requires that plants like Edwards obtain an operating permit. See 35 Ill.
Admin. Code § 201.144. Edwards’ Permit bears an expiration date of June 30, 2005,
and the Illinois EPA issued Edwards a subsequent operating permit pursuant to Title
V of the Clean Air Act. However, the Title V permit has been stayed by order of the
Illinois Pollution Control Board, see Ameren Energy Generating Co., Edwards Power
Station v. IEPA, PCB 06-67 (Feb. 16, 2006), so the Permit issued on June 10, 2004
remains in effect. See 415 Ill. Comp. Stat. 5/39.5(4)(b). The Court has previously held
that the terms and conditions of the Permit are federally enforceable under the citizen
suit provision of the Clean Air Act. See Natural Res. Def. Council v. Ameren Energy
Res. Co., Case No. 13-1181, 2013 WL 5799435 (C.D. Ill. Oct. 28, 2013).
6 Particulate matter is “any solid or liquid material, other than water, which exists
in finely divided form.” 35 Ill. Admin. Code § 211.4510.
7 Opacity is the degree to which particulate matter emissions reduce the transmission
of light and obscure the view of an object in the background. 35 Ill. Admin. Code §
211.4130.
4

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to the Illinois EPA that provide information about periods of excess opacity. See 35
Ill. Admin. Code §§ 201.401, 201.405; Permit Condition 4 (Doc. 104-8 at 2). These
reports “shall be based on six minute averages of opacity” and must contain “[t]he
percent opacity for each continuous opacity excess period;” and “[t]he start and stop
time in six minute increments of any opacity measurements in excess of the
limitation.” 35 Ill. Admin. Code § 201.405(c). The quarterly reports must also identify
“[t]he cause of the excess emissions; if known.” See Permit Condition 4(a)(i)(D) (Doc.
104-8 at 2); 35 Ill. Admin. Code § 201.405(a)(4). To comply with Permit Condition
4(a)(i)(D), Edwards includes in its reports “reason codes” for opacity exceedances,
including codes such as “01-Excess Emission – Startup/Shutdown,” “02 – Excess
Emission – Control Equipment Problems,” “03 – Excess Emission – Process
Problems,” and “04 – Excess Emission – Other Known Causes.”
Between April 18, 2008 and June 30, 2014, Edwards reported to the Illinois
EPA 2,949 instances in which it had an average opacity of greater than thirty percent
for six minutes or longer.8 Plaintiffs seek partial summary judgment on their first
three claims based on these reports. In Count One, Plaintiffs have alleged that
Edwards violated the opacity standards on those reported occasions in which it was
not in a state of startup, malfunction, or breakdown. In Count Two, Plaintiffs have
alleged that Edwards violated the opacity standards on those reported occasions in

It is undisputed that these 2,949 exceedances do not qualify for a regulatory
exemption that the parties refer to as the “8-minute exemption.” The 8-minute
exemption provides that Edwards’ emissions can have an opacity between thirty and
sixty percent “for a period or periods aggregating 8 minutes in any 60 minute period.”
See 35 Ill. Admin. Code § 212.123(b). The exemption does not apply if heightened
emissions occur from both of Edwards’ stacks during the sixty-minute period or if the
heightened emissions occur more than three times in 24 hours. Id.
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which it may have been in a state of startup, malfunction, or breakdown. And, in
Count Three, Plaintiffs have alleged that Edwards violated its particulate matter
standards. They rely upon the opacity exceedances established in the first two claims
in order to establish a derivative violation of the particulate matter standards. See 35
Ill. Admin. Code § 212.124(d)(2)(A) (explaining that for certain power plants, opacity
exceedances may also be deemed particulate matter exceedances).
On the merits, Defendants primarily rely upon two regulatory defenses. First,
they argue that Edwards was in compliance with its particulate matter limits at all
times, including when it was out of compliance with its opacity limits. If correct, this
would provide a complete defense to Plaintiffs’ first, second, and third claims. Second,
they argue that a great number of the opacity exceedances should be excused because
they occurred during periods of malfunction, or breakdown.
Plaintiffs concede that Defendants may be able to prove a defense in some
instances, so they have excluded certain exceedances from their motion. These
include: (1) each exceedance identified in the quarterly reports as being associated
with a startup; (2) eight exceedances in which Edwards submitted to the Illinois EPA
a malfunction report indicating that opacity exceedances occurred during a
malfunction or breakdown; and (3) with respect to only the third claim for relief, each
exceedance that occurred within sixty days prior to a particulate matter stack test
conducted by Defendants. For the remaining exceedances, however, Plaintiffs argue
that the defenses fail as a matter of law.

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LEGAL STANDARD
Summary judgment shall be granted where “the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment,
the Court must view the evidence in the light most favorable to the non-moving party.
SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir.
2009). All inferences drawn from the facts must be construed in favor of the nonmovant. Moore v. Vital Prods., Inc., 641 F.3d 253, 256 (7th Cir. 2011).
To survive summary judgment, the “nonmovant must show through specific
evidence that a triable issue of fact remains on issues on which [it] bears the burden
of proof at trial.” Warsco v. Preferred Technical Grp., 258 F.3d 557, 563 (7th Cir. 2001)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). If the evidence on record
could not lead a reasonable jury to find for the non-movant, then no genuine issue of
material fact exists and the movant is entitled to judgment as a matter of law. See
McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997). At the summary
judgment stage, the court may not resolve issues of fact; disputed material facts must
be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986).
Cross-motions for summary judgment are considered separately, and each
party requesting summary judgment must satisfy the above standard before
judgment will be granted in its favor. See Tegtmeier v. Midwest Operating Eng’rs
Pension Trust Fund, 390 F.3d 1040, 1045 (7th Cir. 2004); Santaella v. Metro. Life Ins.
Co., 123 F.3d 456, 461 (7th Cir. 1997). Thus, the facts are construed in favor of the

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non-moving party, which differs depending on which motion is under consideration.
Tegtmeier, 390 F.3d at 1045.
DISCUSSION
Plaintiffs and Defendants each move for summary judgment on the question
of whether Plaintiffs have Article III standing to bring this lawsuit, and also move
for summary judgment on the merits of Plaintiffs’ first three claims. The Court will
address the threshold matter of standing before considering the merits.
I.

Standing to Sue

The first question that must be answered is whether Plaintiffs have standing
to bring this lawsuit. In this case, each Plaintiff is an organization. “An organization
has standing to sue if (1) at least one of its members would otherwise have standing;
(2) the interests at stake in the litigation are germane to the organization’s purpose;
and (3) neither the claim asserted nor the relief requested requires an individual
member’s participation in the lawsuit.” Sierra Club v. Franklin Cnty. Power of Ill.,
LLC, 546 F.3d 918, 924 (7th Cir. 2008). Plaintiffs’ members establish standing if they
can show that they “have suffered an ‘injury in fact’ that is both (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical;” that “the
injury [is] fairly traceable to the challenged action;” and that it is “likely, not just
speculative, that a favorable decision will redress the injury.” Id. at 925 (citing Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
To win on a cross-motion for summary judgment, “a plaintiff cannot rely on
mere allegations but must support each element by specific facts via affidavits or
other evidence.” Id. “As long as there is ‘at least one individual plaintiff who has

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demonstrated standing . . .’ a court ‘need not consider whether the other . . . plaintiffs
have standing to maintain the suit.” Bond v. Utreras, 585 F.3d 1061, 1070 (7th Cir.
2009) (quoting Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 264 & n. 9
(1977)); see also Korte v. Sebelius, 735 F.3d 654, 667 n.8 (7th Cir. 2013); Bostic v.
Schaefer, 760 F.3d 352, 371 (4th Cir. 2014), cert denied sub nom. Rainey v. Bostic, 135
S. Ct. 286 (2014), and cert denied, 135 S Ct. 308 (2014), and cert. denied sub nom.
McQuigg v. Bostic, 135 S. Ct. (2014) (declining to consider whether two plaintiffs have
standing after concluding that other plaintiffs do have standing).
The parties do not dispute the second and third elements of organizational
standing, but they argue over the first: whether Plaintiffs have shown that at least
one of their members would otherwise have standing to bring the lawsuit on her own
behalf.
A. Plaintiffs’ Evidence of their Members’ Standing
Plaintiffs rely upon the following evidence to establish standing: NRDC has
provided declarations and deposition testimony from members Linda Andrews,
Robert Jorgensen, and Mary Ann Schafer; Sierra Club has provided a declaration and
deposition testimony from member David Pittman; and RHA has provided
declarations and deposition testimony from Alicia High and Tracy Meints Fox.
Defendants have provided the deposition testimony of most standing witnesses in an
effort to undermine their credibility. The evidence is summarized below.
1. NRDC Witnesses
Linda Andrews lives “less than 10 miles” from Edwards, and describes herself
as “very outdoor-oriented.” (Doc. 104-28 at 1). She explains that she regularly runs
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marathons and half marathons, and runs outside as much as possible throughout the
year. (Id.). She avers that “air pollution from [Edwards] can impair [her] ability to do
the activities [she enjoys].” She does much of her training “20 miles to the north of
her home” because she believes her “strenuous activities are safer” and knows “they
are certainly more enjoyable, in the country where the air is cleaner.” (Id. at 2). She
avers that she wishes she could run closer to home, but that she avoids doing so “in
view of [her] health concerns and the unpleasantness of running in dirty air.” (Id.).
She also avers that she is concerned about the impact of poor air quality on her
husband’s health, as he has emphysema. (Id.). During her deposition, Andrews
described the smoke that she saw coming out of Edwards as ugly, and explained that
she has “an issue with particulate matter being released above and beyond the
regulations repeatedly.” (Doc. 109-13 at 4). Her knowledge of Edwards’ emissions’
effects on air quality is limited to the allegations that were pleaded in the complaint.
Mary Ann Schafer lives in near Edwards, in Peoria, and avers that she is “very
concerned” with Edwards’ “impact on air quality” around her because she suffers from
asthma and loves fresh air. (Doc. 104-28 at 5). She explained that she used to “open
[her] house up” when the weather was good, but does not do so anymore because of
her concerns about air quality. (Id. at 6). She is also concerned about the impact that
pollution from Edwards will have on her grandchildren. (Id.). During her deposition,
she expressed concern over particulate matter in the air – which she defined as “tiny
things that are in the solid state” and “cause problems for people with asthma, like
myself” – and said she has grown more concerned about particulate matter as her
asthma has gotten worse. She did explain, though, that particulate matter is caused

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by many sources and said that it is the worst during “leaf burning” season. (Doc. 10914 at 3, 7).
Robert Jorgenson lives in East Peoria, Illinois, and has concerns about the
impact of poor air quality on his health. Edwards is “a short distance from where he
lives,” and he also goes to Bartonville “five or six times a year” because his daughter
works there. (Doc. 104-28 at 3-4). He is especially concerned about breathing
particulate matter because he has a “history of significant cardiac problems.” (Id. at
4). He is aware of the impact that particulate matter has on cardiovascular health,
and he also is aware that Edwards exceeds its particulate matter limits. (Id. at 4).
Jorgenson regularly goes outside, either to ride his bike, walk, or do house work. (Id.).
During his deposition testimony, Jorgenson said he would be concerned about
Edwards even if it operated within its particulate matter limit, and identified other
particulate matter concerns, such as the fact that he lives close to a highway.
2. Sierra Club Witness
Sierra Club is basing its standing on only one member: David Pittman.
Pittman lives in West Peoria, Illinois, and his house is “less than eight miles
downwind” of Edwards. (Doc. 104-31 at 1-2). He is concerned about the health impacts
that particulate matter from Edwards will have on his wife, who suffers from a
variety of cardiovascular health issues. (Id. at 2). He also spends “a large amount of
time outdoors,” and Edwards’ particulate matter diminishes his enjoyment during
that time. (Id.). During his deposition, Pittman said that he is most concerned with
sulfur-dioxide emissions at Edwards, and he also identified other sources of
particulate matter that concern him (such as trash burning and wood smoke). (Doc.
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109-16 at 3). But he affirmed that he is also concerned with particulate matter
emissions from Edwards. (Id. at 3-4).
3. RHA Witnesses
RHA is basing its standing on the declarations of two individuals, each of whom
claims to be an RHA member. Tracy Meints Fox lives in Chillicothe, Illinois
(approximately 25 miles north of the plant). (Doc. 104-33 at 1). Alicia High lived in
Bloomington, Illinois (approximately 40 miles from Edwards) when the lawsuit was
filed, but she lives in Texas now.
The parties dispute whether High and Fox should be considered members of
RHA. Article VI of RHA’s 2012 Bylaws defined how individuals become members of
the RHA at the time this lawsuit was filed. It provides that, “Any person who concurs
with the purposes of the Association and who makes an active contribution to the
work of the Association may become a general member upon election by the Board or
Executive Committee and the payment of an annual membership fee to be
determined by the Board.” (Doc. 104-34 at 3).
There is no evidence in the record that High or Fox were elected by the Board
or Executive Committee, nor is there evidence that they paid an annual membership
fee. Because RHA cannot show membership that complies with the bylaws,
Defendants argue that it lacks standing.
There is, however, evidence that Fox made donations to RHA in 2013 and 2014,
that High participated in RHA events beginning in 2012 for which she personally
paid $540, and that both High and Fox approve of the organization’s purpose. RHA
argues that this evidence of membership is enough, especially in light of an undated
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resolution passed by the RHA Board that provides, “IT IS HEREBY FURTHER
RESOLVED, that Alicia High and Tracy Fox could properly consider themselves
‘members’ of the Association,” because they have “made contributions of money to the
Association, and have demonstrated through their actions in a Peoria area power
plant litigation matter that they concur with the purpose of the Association and have
made an active contribution to the work of the Association.” (Doc. 104-34). The
Resolution explains that the 2012 Bylaw “was not intended to require the Board or
Executive Committee to expressly ‘elect’ each person to membership, or to require a
contribution of a particular size to the Association.” (Id.). Instead, the Resolution
explains that “it was appropriate to treat any person who concurred with the purposes
of the Association, and who made a financial contribution, as a ‘Member’ as that term
is used in the Bylaws.” (Id.).
This dispute raises a number of thorny legal questions. First, should the Court
second-guess RHA’s interpretation of its Bylaws when a reasonable juror could
conclude that RHA adopted a convenient litigation position to allow it to establish
standing after the lawsuit was filed? See Dannhausen v. Bus. Publ’ns Audit of
Circulation, Inc., 797 F.2d 548, 551 (7th Cir. 1986) (“Illinois law does not permit
courts to adjudicate the merits of private associations’ decisions.”). But see Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180 (2000) (explaining
that standing should be measured at the outset of litigation); Pollack v. U.S. Dep’t of
Justice, 577 F.3d 736, 743 n. 2 (7th Cir. 2009) (“[A] plaintiff must establish standing
at the time suit is filed and cannot manufacture standing afterwards.”). Second, if a
person has failed to comply with Bylaws that govern membership but demonstrates

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certain other indicia of membership, should a court consider that person to be a
member of the organization for standing purposes? Compare Citizens Coal Council v.
Canestrale Contracting Inc., 40 F. Supp. 3d 632, 636-43 (W.D. Pa. 2014) with
California Sportfishing Prot. Alliance v. Diablo Grande, Inc., 209 F. Supp. 2d 1059,
1066 (E.D. Cal. 2002). Ultimately, it is unnecessary to resolve this dispute, because
as discussed below, both NRDC and Sierra Club have standing and that is all that is
required for Plaintiffs to proceed with this lawsuit. See Bond, 585 F.3d at 1070.
B. NRDC and Sierra Club’s Undisputed Evidence is Sufficient to Confer
Standing
Defendants have challenged the sufficiency of NRDC and Sierra Club’s
standing witnesses’ affidavits to establish standing for the organizations. They argue
that each of the declarants has not suffered a redressable injury that is fairly
traceable to Defendants’ challenged conduct. The court considers, in turn, each
element of individual standing.
1. Injury in Fact
An injury in fact exists only if the injury is concrete, particularized, actual or
imminent, and affects the declarant in a “personal and individual way.” Lujan, 504
U.S. at 560, 560 n. 1. Members of environmental groups can establish injury in fact
by showing that “they use the affected area and are persons for whom the aesthetic
and recreational values of the area will be lessened by the challenged activity.”
Laidlaw, 528 U.S. at 183 (internal quotation marks omitted). See also Am. Bottom
Conservancy v. U.S. Army Corps. of Eng’rs, 650 F.3d 652, 658 (7th Cir. 2011); Pollack,
577 F.3d at 740; Franklin Cnty., 546 F.3d at 925; Am. Canoe Ass’n v. Murphy Farms,
Inc., 326 F.3d 505, 517 (4th Cir. 2003); Friends of the Earth, Inc. v. Gaston Copper
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Recycling Corp., 204 F.3d 149, 154-56 (4th Cir. 2000). “The relevant showing for
purposes of Article III standing . . . is not injury to the environment but injury to the
plaintiff.” Laidlaw, 528 U.S. at 181. Members are injured when their interests in a
geographic area are impacted by “reasonable concerns about the effects” of pollution.
Id. at 183-84.
An “identifiable trifle” will be sufficient to establish injury-in-fact. Franklin
Cnty., 546 F.3d at 925. “The magnitude, as distinct from the directness, of the injury
is not critical to the concerns that underlie the requirement of standing. . . .” Am.
Bottom Conservancy, 650 F.3d at 656. Standing witnesses need not show that they
have totally abandoned a site because of pollution; they just need to show that their
“pleasure is diminished.” Id. at 658. In the case of air pollution, simple exposure to
pollutants can establish the necessary injury in fact. See Franklin Cnty., 546 F.3d at
925; Murphy v. Murphy Oil USA, 686 F. Supp. 2d 663, 671 (E.D. La. 2010) (quoting
Texans United for a Safe Economy Educ. Fund v. Crown Cent. Petroleum Corp., 207
F.3d 789, 792 (5th Cir. 2000)).
Here, witnesses from both NRDC and Sierra Club testified that their
enjoyment of certain outdoor activities was diminished because of particulate matter
emissions from Edwards. NRDC’s witness, Linda Andrews, travels 20 miles away
from her home for many of her runs in order to avoid pollution that she attributes to
Edwards. Mary Ann Schaeffer, another NRDC witness, keeps her windows closed to
keep the outside air out and reduce her exposure to particulate matter. Robert
Jorgenson, the third NRDC witness, regularly goes outside to hike, bike, and do yard
work, and is concerned about his cardiovascular health when he does so. David

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Pittman, of the Sierra Club, spends a large amount of time outdoors, and is concerned
about the impact on his health that exposure to particulate matter has during that
time. He is also concerned about his wife’s cardiovascular health.
These standing witnesses – other than Linda Andrews and Mary Ann
Schaeffer – do not claim that they changed their behavior because of their concerns.
It could therefore be argued that they did not suffer the sort of recreational harms
that Laidlaw held give rise to standing. See 528 U.S. at 184. However, the standing
witnesses need not show that they abandoned recreational activities because of
pollution; they just need to show that their pleasure was diminished because of the
pollution. See Am. Bottom Conservancy, 650 F.3d at 658. All standing witnesses have
claimed that their residential and recreational happiness has been disturbed by the
presence of air pollution. This sort of particularized identifiable trifle is a cognizable
injury, so long as it is reasonable. See id.; Franklin Cnty., 546 F.3d at 925; Texans
United, 207 F.3d at 792.
Defendants argue that the standing witnesses’ fears are unreasonable. They
have provided expert testimony from Lucy Fraiser, who opines that the emissions at
issue cannot cause the health consequences that concern the standing witnesses.
Specifically, Fraiser opines that Edwards “did not cause short-term or long-term
atmospheric PM concentrations sufficient to cause or contribute to injury of human
life or health and, thus, the magnitude of the potential exposures do not support the
fears alleged.” (Doc. 109-11 at 22). She further opines that Edwards “did not cause
short-term or long-term atmospheric PM concentrations sufficient to cause visibility
impairment or other welfare impacts” and the emissions “were not of a characteristic,

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frequency, or duration that presents a reasonable likelihood of future harm.” (Id.).
She therefore concludes that the standing witnesses’ fears are not supported by
reliable medical or scientific evidence. (Id. at 44).
Defendants have set the bar for reasonableness too high. A fear need not be
based on medical or scientific evidence of probable consequences in order to be
reasonable. Rather, a fear cannot be “so irrational that it can simply be discredited.”
Franklin Cnty., 546 F.3d at 927. The relevant question is not whether pollutants are
present in such a high concentration that they will assuredly cause health problems.
Rather, it is whether pollutants that can be attributed to Defendant could cause harm
and are present in the geographic area in which the standing witness has an interest.
See Pollack, 577 F.3d 736; Am. Canoe Ass’n, 326 F.3d 505; and Gaston Copper, 204
F.3d 149 (4th Cir. 2000).
In Pollack, a resident of Highland Park, Illinois alleged that he was harmed by
the discharge of lead bullets from a firing range into Lake Michigan. Among other
things, the plaintiff based his claim for standing on the fact that “he drinks water
drawn from Lake Michigan for Highland Park.” 577 F.3d at 741. The Court concluded
that his “intention to drink water and his fear that his water has been contaminated
by lead from bullets does not give rise to standing.” Id. It explained that his fear was
unreasonable because it was unclear from the record whether “any pollution from
bullets discharged into Lake Michigan [would] travel the thirteen miles” from where
they were discharged to where the plaintiff’s drinking water was drawn. Id. The court
suggested, however, that the outcome would have been different had Pollack “actually
used the areas affected by pollution.” Id. Indeed, in a concurring opinion, Judge

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Cudahy noted that the plaintiff had only pointed to a “small amount of lead” in his
drinking water but concluded that it would have been sufficient to establish injuryin-fact if the plaintiff had provided “competent evidence” that the lead was from the
firing range. Id. at 746 (Cudahy, J. concurring).
In American Canoe, a standing witness asserted that he was harmed by the
illegal discharge of hog waste because he used a stream four-miles downstream from
the discharge site for “swimming, drinking, and fishing.” 326 F.3d at 518. He asserted
that “[h]is fear of pollution has kept him from swimming in, bathing in, or drinking
the water” from the creek. Id. at 519. He based his fear of pollution on expert
testimony that the pollutants in the swine waste “may have severe adverse
environmental and human health effects,” and that the pollutants traveled
downstream. Id. Without discussing whether the concentration of pollutants in the
creek was sufficient to cause those health effects, the Court concluded that the
standing witness’s fear was reasonable because he “used an area subject to
contamination from the discharge.” Id. at 520. Indeed, the Court suggested that the
contamination itself was relatively insignificant, as it noted the “minimal number of
discharges” at issue. Id.
Finally, in Gaston Copper, a homeowner who lived downstream from a
smelting factory “plainly demonstrated injury in fact” by testifying that “he and his
family swim less in and eat less fish from [his] lake because his fears of pollution from
[the factory’s] permit exceedances.” 204 F.3d at 156. He was “anything but a roving
environmental ombudsman seeking to right environmental wrongs,” because he
“[was] a real person who owns a real home and lake in close proximity” to the

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defendant. Id. at 157. The Court explained that there was “ample evidence that [his]
fears are reasonable and not based on mere conjecture” because “[t]he record is
replete with evidence that Gaston Copper is fouling its receiving waters.” Id. Indeed,
there were “over 500 violations of the company’s discharge limits, including unlawful
releases of cadmium, copper, iron, lead, and zinc, as well as pH violations,” and also
“EPA studies and expert testimony of the adverse health and environmental effects
of these chemicals.” Id. As in both American Canoe and Pollack, in Gaston the court’s
injury-in-fact analysis focused on the presence of pollutants that are known to cause
harm to human health in an area in which the standing witness has an interest.
Here, there is no dispute that particulate matter of the type emitted by
Edwards can be harmful. As discussed in greater detail below, the record establishes
that Edwards regularly exceeded its particulate matter limitations during the
relevant time period. See infra at 25-39. And at oral argument, the parties conceded
that each of the standing witnesses for NRDC and Sierra Club live, work, or recreate
in a geographic area where Edwards’ particulate matter emissions were and are
present. In light of this, the standing witnesses’ concerns were reasonable. See
Pollack, 577 F.3d at 741; Am. Canoe Ass’n, 326 F.3d at 518-20; Gaston Copper, 204
F.3d at 156; see also Laidlaw, 528 U.S. at 184-85 (explaining that fears of pollution
are reasonable when there is evidence of “continuous and pervasive illegal discharges
of pollutants into a river.”).
Defendants argue that this sort of injury is at best a possible future injury that
is insufficient to establish standing. (Doc. 109 at 56-57). To support this argument,
they rely upon Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013). In Clapper, a

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variety of attorneys and human rights, labor, legal, and media organizations sought
declaratory and injunctive relief from a provision of the Foreign Intelligence
Surveillance Act that they argued was unconstitutional. The plaintiffs primarily
based their standing on the “objectively reasonable likelihood that their
communications [with targets of the FISA law] will be acquired . . . at some point in
the future.” Id. at 1143. The Supreme Court held that the plaintiffs did not suffer an
injury in fact that conferred standing. It explained, that the “threatened injury must
be certainly impending to constitute injury in fact,” and rejected the plaintiffs’ injury
as a “highly speculative fear” that their communications would be intercepted by
government agents who relied upon the challenged statute for authority. Id. at 114849.
Here, the standing witnesses have stipulated that they did not suffer any
health harms because of Edwards’ emissions, (Doc. 109-10), and Defendants argue
that all fear of future harm is too speculative. Defendants, however, seek to extend
the holding of Clapper too far. The line of cases beginning with Laidlaw remains good
law, and was unchanged by Clapper. In fact, the Supreme Court expressly
distinguished Clapper from Laidlaw. It explained that in Laidlaw, the standing was
based upon harm caused by “unlawful discharges of pollutants” that were “concededly
ongoing,” whereas it was dealing with a challenge to a law in which there was no
evidence of ongoing surveillance. 133 S. Ct. at 1153. It was the ongoing discharge of
pollution in Laidlaw, and the pollution’s impact on recreational and aesthetic
interests, that created actual, and not speculative, injury. Id.

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For the above reasons, the Court finds that the undisputed material facts
establish that NRDC and Sierra Club’s members have shown injury in fact.
2. Traceability
In addition to showing injury in fact, Plaintiffs must show a “causal connection
between the injury and the conduct complained of.” Lujan, 504 U.S. at 560. In other
words, the “injury must be fairly traceable to the challenged action of the
[Defendant]” and “not the result of the independent action of some third party not
before the court.” Id.
Defendants next argue that any injuries suffered by the standing witnesses
cannot be traced to the challenged activities. They argue that Plaintiffs cannot show
that there is a “substantial likelihood” that Edwards caused Plaintiff’s harm because
there is no evidence that Edwards exceeded the particulate matter violations. (Doc.
109 at 5 (citing Pub. Interest Research Grp. of N.J., Inc. v. Powell Duffryn Terminals
Inc., 913 F.2d 64, 72 (3d Cir. 1990)).
Defendants’ argument fails for two reasons. First, as explained below,
Plaintiffs have established, through derivative opacity violations, that Edwards did
violate its particulate matter limits. Second, the standing witnesses need not even
demonstrate such a violation in order to prove standing.
Injuries are not fairly traceable when they are the result of “independent action
of some third party not before the court.” Texas Indep. Producers & Royalty Owners
Ass’n v. EPA, 410 F.3d 964, 972 (7th Cir. 2005). “Where a plaintiff has pointed to a
polluting source as the seed of his injury, and the owner of the polluting source has
supplied no alternative culprit, the ‘fairly traceable’ requirement can be said to be

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fairly met.” Gaston Copper, 204 F.3d at 162; Franklin Cnty., 546 F.3d at 926-27.
However, where a defendant has pointed to an alternative culprit that is responsible
for all of the pollution at issue, the injury is not fairly traceable to the defendant. See
Pollack, 577 F.3d at 746 (Cudahy, J. concurring) (“Pollack’s limited evidence that lead
has traveled or will travel south to Highland Park and enter the plaintiff’s drinking
water was outweighed in the view of the district court by the defendants’ evidence of
an alternative cause for lead in the water – the corrosive pipes. . . .”).
In this case, it is undisputed that there are a variety of sources of particulate
matter in the air that the standing witnesses breathe. This includes particulate
matter from Edwards, and also includes for example, particulate matter from leaf
burning and highway traffic. When multiple sources contribute to the pollution at
issue, plaintiffs are not required to show “to a scientific certainty that defendant’s
[emissions], and defendant’s [emissions] alone, caused the precise harm suffered by
the plaintiff.” See Powell Duffryn Terminals Inc., 913 F.2d at 72. Instead, plaintiffs
“must merely show that a defendant discharges a pollutant that causes or contributes
to the kinds of injuries alleged in the specific geographic area of concern.” Gaston
Copper, 204 F.3d at 161 (internal quotation marks omitted); see also Sierra Club v.
Cedar Point Oil Co., Inc., 73 F.3d 546, 558 (2d Cir. 1996). The fact that “third parties
could also have contributed to the alleged injuries,” does not mean that the injury is
not fairly traceable to a defendant’s conduct. Am. Canoe Ass’n, 326 F.3d at 520.
Here, Plaintiffs’ witnesses have all averred that they are concerned about
particulate matter. As particulate matter from Edwards made it into the geographic
area at issue, the recreational injuries that result from that reasonable fear can be

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fairly traced to Edwards’ conduct. See id.; Sierra Club v. Energy Future Holdings
Corp., Case No. W-12-CV-108, at *14 (W.D. Tex. Nov. 22, 2013) (“if [a defendant’s]
opacity violations . . . can impair the air quality around [the standing witness’s] home,
even within national limits, an injury, however ‘trifle’ has been established” that is
fairly traceable to the defendant).
3. Redressability
Finally, Plaintiffs must prove that their fairly traceable injuries are
redressable. A plaintiff “need not show that a favorable decision will relieve his every
injury.” Mass. v. EPA, 549 U.S. 497, 525 (2007). Rather, a plaintiff simply needs to
show “that a favorable decision will relieve a discrete injury to himself.” Id.
In this case, Plaintiffs allege that Edwards engaged in opacity and particulate
matter violations that began before the lawsuit was filed and continued thereafter.
They seek declaratory relief, injunctive relief, and civil penalties.
This evidence – of past, continuing wrongs – is sufficient to establish that
Plaintiffs’ injuries are redressable by injunctive relief. See Gaston Copper, 204 F.3d
at 162-63 (explaining that “[a] plaintiff seeking injunctive relief shows redressability
by alleging a continuing violation or the imminence of a future violation of the statute
at issue” and concluding that post-complaint violations demonstrate a continuing
violation that is redressable by injunctive relief) (internal quotation marks omitted);
Concerned Citizens Around Murphy, 686 F. Supp. 2d at 673 (explaining that past
violations, together with violations that continued after the filing of the complaint,
sufficiently establish that “unless some action is taken to prevent the illegal conduct,
there is a real threat that such violations will continue to occur.”).

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Plaintiffs have also established that their injuries are redressable by civil
penalties. Civil penalties “do more than promote immediate compliance by limiting
the defendant’s economic incentive to delay its attainment of permit limits” – they
also deter future violations by encouraging defendants to discontinue ongoing illegal
conduct. Laidlaw, 528 U.S. at 186-87; see also Sierra Club v. Tennessee Valley Auth.,
430 F.3d 1337, 1345 (11th Cir. 2005) (“civil penalties . . . redress injuries . . . by
abating current violations and preventing future ones. . . .”) (internal quotation marks
omitted). Therefore, civil penalties redress Plaintiffs’ injuries for the same reason
that injunctive relief does.
Defendants make one additional argument that must be addressed. They
argue that Plaintiffs cannot show a likelihood of future particulate matter violations
because the regulatory provision that establishes Edwards’ particulate matter
violations would not apply to future violations. Defendants are correct: Plaintiffs rely
upon 35 Ill. Admin. Code § 212.124(d)(2) to prove that Edwards violated its
particulate matter limits, and Plaintiffs concede that they could not prove future
particulate matter violations in that way. However, this confuses the issue. Just
because a plaintiff could no longer prove particulate matter violations through §
212.124(d)(2) does not mean that particulate matter limits no longer apply to
Edwards. It simply takes one way to establish the particulate matter violations off
the table. In this case, Plaintiffs have alleged that Edwards continued to violate
particulate matter limits, and have (as discussed below) proven that continuing
violation. Just because the method of proof the Plaintiffs have relied upon does not

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apply to future violations does not negate that proof of past continuing violations or
suggest that future violations will not occur.
As discussed above, the undisputed facts show that members of NRDC and the
Sierra Club have suffered an injury in fact that is fairly traceable to Edwards’
emissions and would be redressed by a judgment in favor of Plaintiffs. As NRDC and
Sierra Club have standing, the Court’s subject-matter jurisdiction is secure.
II.

The Merits

With the threshold matter of standing addressed, it is now appropriate to
address the merits of Plaintiffs’ claims. Plaintiffs move for partial summary judgment
on their first three claims against IPRG. Each of these claims is based on self-reported
incidents of excess opacity. If IPRG cannot produce evidence that would allow it to
prove an affirmative defense for these exceedances, summary judgment for Plaintiffs
is appropriate. See U.S. v. B&W Inv. Prop., 38 F.3d 362, 367 (7th Cir. 1994)
(explaining that the CAA is a strict liability statute); Concerned Citizens Around
Murphy, 686 F. Supp. 2d at 680 (granting summary judgment based on the
defendant’s self-reports of emission violations).
Defendants have raised three defenses that the Court will consider in turn.
First, they argue that they were in compliance with their particulate matter
limitations at all times. Second, they argue that many of the exceedances occurred
during periods of excusable malfunctions or breakdowns. Third, they argue that the
particulate matter limits and opacity limits do not apply during times in which
Edwards is not operating. The first two defenses fail. The third succeeds with respect
to Count Three, but fails with respect to Counts One and Two.

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A. Particulate Matter Defense
One regulatory defense established by the Illinois Pollution Control Board
(“IPCB”) to opacity violations that is available to Defendants is the particulate
matter defense, which is codified at 35 Ill. Admin. Code § 212.124(d). This defense
provides, in relevant part:
Compliance with the particulate regulations of this Part shall
constitute a defense.
1) For all emission units which are not subject to Chapters 111 or
112 of the CAA and [certain particulate matter limits to which
Edwards is subject] but which are subject to [opacity
limitations]: the opacity limitations . . . shall not apply if it is
shown that the emission unit was, at the time of such emission,
in compliance with the applicable particulate emissions
limitations of Subparts D through T of this Part.9
2) For all emission units which are not subject to Chapters 111 or
112 of the CAA but which are subject to [certain particulate
matter limits to which Edwards is subject]:
A) An exceedance of the [opacity limitations] shall constitute
a violation of the applicable particulate limitations . . . . It
shall be a defense to a violation of the applicable
particulate limitations if, during a subsequent
performance test conducted within a reasonable time not
to exceed 60 days, under the same operating conditions for
the unit and the control devices, and in accordance with
Method 5, 40 CFR part 60, incorporated by reference in
Section 212.113 of this Part, the owner or operator shows
that the emission unit is in compliance with the
particulate emission limitations.

Subparts D through T of Part 212 of the Illinois SIP establish particulate matter
limitations for a variety of different types of emission sources, including sources that
are different from Edwards. Edwards’ particulate matter limits are included among
those in Subpart E, which establishes limits for emissions from Fuel Combustion
Emission Units. See 35 Ill. Admin. Code §§ 212.201-210. But Subpart D, for example,
covers particulate matter emissions from incinerators. See 35 Ill. Admin. Code §§
212.181-185.
9

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B) It shall be a defense to an exceedance of the opacity limit
if, during a subsequent performance test conducted within
a reasonable time not to exceed 60 days, under the same
operating conditions of the emission unit and the control
devices, and in accordance with Method 5, 40 CFR part 60,
Appendix A, incorporated by reference in Section 212.113
of this Part, the owner or operator shows that the emission
unit is in compliance with the allowable particulate
emissions limitation while, simultaneously, having visible
emissions equal to or greater than the opacity exceedance
as originally observed.
35 Ill. Admin. Code § 212.124(d).
Defendants rely upon the first sentence of § 212.124(d) to argue that they have
a complete defense to both the opacity violations alleged in Counts One and Two and
the particulate matter violations alleged in Count Three. Their expert, Ralph
Roberson, correlated particulate matter emissions from Edwards to contemporaneous
opacity readings. He concluded that “there is no evidence to support a claim that the
Edwards Power Station (either Unit 1 or 2, which exhaust through a Common Stack,
or Unit 3) has exceeded the allowable PM emission limits on the individual units.”
(Doc. 109-6 at 22). Roberson reached this conclusion by utilizing stack testing data
from Edwards, but as explained below, this method did not comply with the method
prescribed under § 212.124(d)(2).
Plaintiffs, however, argue that in proving the particulate matter defense,
Edwards is restricted to the method established in § 212.124(d)(2). This would make
Roberson’s testimony irrelevant. Under § 212.124(d)(2), a covered power plant
satisfies the particulate matter defense for opacity exceedances by, within sixty days
of the exceedance, conducting a stack test to show that it is within the applicable
particulate matter limitations while the unit is both operating under the same

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conditions and with opacity equal to or greater than the originally-observed opacity.
See 35 Ill. Admin. Code § 212.124(d)(2)(B). A covered power plant satisfies the
particulate matter defense for derivative particulate matter exceedances by, within
sixty days of the opacity exceedance, conducting a stack test that shows it is within
the applicable particulate matter limitations while the unit is operating under the
same operating conditions as it was during the exceedance. Id. § 212.124(d)(2)(A).
The record shows that Edwards conducted a stack test on one unit on
November 19-20, 2011, stack tests on all units on July 16-19, 2013, and stack tests
on all units on April 23-24, 2014. During these tests, Edwards’ opacity did not exceed
thirty percent. Plaintiffs argue that these stack tests cannot support a defense for the
first two counts and can only arguably provide a defense for the third count for those
exceedances that occurred within sixty days of the stack tests.
As the facts here are not in dispute, whether and to what extent Defendants
can rely upon the particulate matter defense is a question of law that is well-suited
for summary judgment. Its resolution depends upon resolving two separate issues:
first, whether Edwards is even subject to § 212.124(d)(2); and second, whether §
212.124(d)(2) provides an exclusive way for Edwards to prove the particulate matter
defense.
1. Section 212.124(d)(2)’s application to Edwards
Section 212.124(d)(2) does not apply to emission units that are “subject to
Chapters 111 and 112 of the CAA.” Although the parties agree that Edwards was not
subject to Section 111 of the Clean Air Act during the relevant period, they dispute
whether Edwards was subject to Section 112 (42 U.S.C. § 7412) for purposes of §

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212.124(d)(2). Defendant argues that Edwards was subject to Section 112 because the
U.S. EPA listed coal-fired electrical generating units (like Edwards) under Section
112(c). Plaintiffs, however, argue that Edwards was not subject to Section 112
because the U.S. EPA had not issued any regulations that pertained to Edwards
during the relevant time period.10
The Court must determine what “subject to Chapter[] . . . 112 of the CAA”
means for the purpose of § 212.124(d)(2). Courts interpreting a regulation first look
to the regulation’s text, and look past it only “when it is ambiguous or where a literal
interpretation would lead to an absurd result or thwart the purpose of the overall
statutory scheme.” Nat’l Bank of Chicago v. Standard Bank & Trust, 172 F.3d 472,
477 (7th 1999) (internal quotation marks omitted). The text of § 212.124(d)(2) is
susceptible to both parties’ readings, so understanding both how Section 112 of the
Clean Air Act operates and the regulatory history of § 212.124(d)(2) is necessary to
make this determination.
Section 112 is the codification of the National Emissions Standards for
Hazardous Air Pollutants Program (“NESHAP”), one of the Clean Air Act’s programs
designed to control air pollution from stationary sources. See Case Comment,
Michigan v. EPA, 129 Harv. L. Rev. 311 (2015). NESHAP regulates the emission of

Plaintiffs argue that Edwards became subject to Section 112 for purpose of the
regulation on April 16, 2015, which was the deadline for existing power plants to
comply with the U.S. EPA’s Mercury and Air Toxics Standard, which was issued
pursuant to 42 U.S.C. § 7412(d). See 40 C.F.R. § 63.9984. It is worth noting that in
arguing that Edwards was not subjection to Section 112 of the Clean Air Act,
Plaintiffs are not arguing that Edwards was not subject to other Clean Air Act
obligations. Indeed, it is Edwards’ Clean Air Act obligations that give rise to this
lawsuit. Edwards was subject to the Illinois SIP regulations, which implement
Section 109 of the Clean Air Act. See 42 U.S.C. §§ 7409-10.
10

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certain listed hazardous air pollutants into the atmosphere. Wildearth Guardians v.
Lamar Utilities Bd., 932 F. Supp. 2d 1237, 1239 (D. Colo. 2013). “Congress
established a unique procedure to determine the applicability of [NESHAP] to fossilfuel-fired power plants.” Michigan v. EPA, 135 S. Ct. 2699, 2705 (2015). It directed
the U.S. EPA to “perform a study of the hazards to public health reasonably
anticipated to occur as a result of emissions by [power plants] of [hazardous air
pollutants] after imposition of the requirements of this chapter.” 42 U.S.C. §
7412(n)(1)(A). It further directed the U.S. EPA to regulate these plants pursuant to
Section 112 if it found that “regulation is appropriate and necessary after considering
the results of the study.” Id.
“[T]he ‘appropriate and necessary’ finding” is only the beginning of a regulatory
process – a “kick-off finding” that lists plants like Edwards and eventually leads to
the promulgation of emissions limits for certain listed pollutants. See Michigan, 135
S. Ct. at 2717 (Kagan, J. dissenting). Following the “appropriate and necessary”
finding, coal-fired power plants are listed under Section 112(c) and the U.S. EPA must
then “promulgate regulations establishing emission standards for each category or
subcategory of major sources and area sources of hazardous air pollutants listed for
regulation.” 42 U.S.C. § 7412(c)(2), (d)(1). A decision to list a category of sources
pursuant to Section 112(c) is not a final agency action that is subject to immediate
judicial review. Id. § 7412(e)(4). Instead, judicial review must wait until the U.S. EPA
has issued regulations pursuant to Section 112(d). Id.
The U.S. EPA completed the study required by Section 112(n)(1)(A), and in
2000 concluded that the regulation of coal- and oil-fired power plants is appropriate

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and necessary. Environmental Protection Agency Notice of Regulatory Finding, 65
Fed. Reg., 7,0825, 7,9826 (Dec. 20, 2000). However, it did not promulgate any
regulations until 2012, and those regulations did not apply to existing coal-fired
power plants until 2015. See 40 C.F.R. § 63.9984.
Plaintiffs rely upon this statutory structure in arguing that Edwards was not
subject to Section 112 of the Clean Air Act for purposes of § 212.124(d)(2). Although
they acknowledge that Edwards was listed pursuant to Section 112(c), they point out
that Edwards did not need to comply with any regulatory obligations under Section
112 during the relevant period.
Listing under Section 112(c) does have certain legal consequences, however,
and Defendants seize onto them in arguing that Edwards was subject to Section 112
for purposes of § 212.124(d)(2). Under Section 112(g), listed major sources that are
not subject to regulations issued pursuant to Section 112(d) must still meet
“maximum

achievable

control

technology

emission

limitations”

following

construction, reconstruction, or modification. 42 U.S.C. § 7412(g); Memorandum from
Robert J. Meyers to Regional Administrators (Jan. 7, 2009) (Doc. 109-22 at 2) (“coaland oil-fired EGUs, which were a listed source category under Section 112 beginning
December 20, 2000, remain on the Section 112(c) list and therefore are subject to
Section 112(g). . . .”). These standards are established “on a case-by-case basis,” 42
U.S.C. § 7412(g), and are ordinarily made prior to a plant’s construction,
reconstruction, or modification. Wildearth Guardians, 932 F. Supp. 2d at 1240.
Edwards – which was in operation at the time that coal-fired power plants were
listed – was not immediately subject to any emission standards under Section 112.

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Instead, at the time of listing, any obligations that Edwards had under Section 112
were necessarily abstract or conditional. Edwards only became subject to
promulgated Section 112 regulations after the relevant time period at issue. Further,
under Section 112(g), Edwards would only have needed to meet certain established
emission standards if it was modified or reconstructed, but it was not. Thus, the
structure of Section 112 suggests that Edwards was not subject to it even though it
was listed.11
A review of regulatory history confirms that a power plant is only subject to
Section 112 for purposes of § 212.124(d)(2) if it is subject to standards promulgated
pursuant to it. See First Nat’l Bank, 172 F.3d at 477 (explaining that the regulatory
history of a regulation is relevant in determining the intent of the regulation).
Section 212.124 was issued by the IPCB, an entity that is tasked with “determin[ing],

Defendants’ insistence that it is the U.S. EPA’s official policy that Edwards was
subject to Section 112 is unpersuasive. In the Meyers Memorandum issued on
January 7, 2009, the EPA’s principal deputy assistant administrator wrote to the U.S.
EPA’s regional administrators regarding the “[a]pplication of CAA Section 112(g) to
Coal- and Oil-Fired Electric Utility Steam Generating Units that Began Actual
Construction or Reconstruction Between March 29, 2005 and March 14, 2008.” (Doc.
109-22 at 2). Meyers wrote the memo after the United States Court of Appeals for the
District of Columbia Circuit vacated a rule that had delisted coal-fired power plants.
See New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008). He concluded that since those
plants “remain on the Section 112(c) list” they are “subject to Section 112(g).” (Doc.
109-22 at 2).
The memorandum was written in a particular context: assessing whether units
that began construction or reconstruction following the delisting rule but prior to the
delisting rule’s vacatur needed to comply with Section 112(g). Defendants’ reliance
on this language to suggest that Edwards is “subject to Chapter 112 of the CAA” for
purposes of § 212.124(d)(2) takes the memorandum out of this particular context,
which has nothing to do with an interpretation of § 212.124(d)(2). Indeed, Defendants’
position is inconsistent with the position that the U.S. EPA subsequently took in
litigation where § 212.124(d) was squarely at issue. See Complaint, United States v.
Midwest Generation, LLC, No. 1:09-cv-05277, at ¶¶ 53, 72, 90, 108, 126, 144, 172,
190, 208, 226 (N.D. Ill. Aug. 27, 2009).

11

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defin[ing] and implement[ing] the environmental control standards applicable to the
State of Illinois.” 415 Ill. Comp. Stat. § 5/5(b). At the time that it promulgates a final
regulation, the IPCB must also issue a written opinion that explains its decision. 35
Ill. Admin. Code § 102.608. In the IPCB’s final order and opinion that accompanied §
212.124, it explained the language in § 212.124(d)(1)-(2) exempting sources that are
subject to Chapters 111 and 112 of the Clean Air Act. See Final Order, Illinois
Pollution Control Board, In re: Particulate Emission Limitations, Rule 203(g)(1) of
Chapter 2, 1988 Ill. ENV LEXIS 319, at *16 (June 30, 1988). The IPCB explained that
it “made certain clarifications to the text of the proposed rules,” before final adoption,
including “language to clarify that Section 212.124(d)(1) does not apply to sources
subject to New Source Performance Standards, i.e., subject to Section 111 or 112 of
the Clean Air Act.” Id. It also added language “to clarify that Section 212.124(d)(2)
does not apply to sources subject to New Source Performance Standards.” Id. at *1617.
This indicates that the IPCB understood the regulatory language at issue to
be equivalent to “subject to standards issued pursuant to Section 111 or 112 of the
Clean Air Act.” As with Section 112, Section 111 does not itself establish standards.
Rather, it simply establishes the manner through which standards shall be set.
Section 111 of the Clean Air Act authorizes the U.S. EPA to either develop regulations
governing new sources (New Source Performance Standards regulations) or to
require states to regulate existing sources. See 42 U.S.C. § 7411(b), (d). So, the IPCB’s
explanation that § 212.124(d)(2) does not apply to “sources subject to” regulatoryestablished standards – and its acknowledged shorthand for that (sources “subject to

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Section 111 or 112 of the Clean Air Act,”) suggest that the IPCB does not consider
listed sources to be subject to Section 112 of the Clean Air Act unless the listed source
is subject to emission standards established through Section 112(d) or (g).
In light of the foregoing, the Court concludes that, for purposes of §
212.124(d)(2), Edwards was not subject to Section 112 of the Clean Air Act during the
period of exceedances at issue in this case.

Therefore, it was subject to §

212.124(d)(2).
2. Section 212.124(d)(2) provides Edwards with its sole method of
proving the Particulate Matter Defense
The next issue is whether Defendants can prove the particulate matter defense
in any way other than that provided by § 212.124(d)(2). As shown by the text,
structure, and regulatory history of § 212.124(d), Edwards is limited to the method
provided in § 212.124(d)(2) to establish the particulate matter defense.
Defendants argue that the first sentence of § 212.124(d) – “Compliance with
the particulate regulations of this Part shall constitute a defense.” – provides a
general particulate matter defense that they can prove with any admissible evidence.
They suggest that subsections (d)(2)(A) and (d)(2)(B) provide operators of power
plants with a particular method for proving compliance as a safe harbor that aids but
does not otherwise restrict the particulate matter defense.
This argument is contrary to the structure of § 212.124(d). It is a basic tenant
that a regulation “ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”
See TRW, Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks omitted).
Defendants’ reading of the regulation would render § 212.124(d)(1) superfluous.
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Section 212.124(d)’s two major subsections apply to mutually exclusive sets of
emission units. Section 212.124(d)(2) only applies to a subset of coal-fired power
plants, while § 212.124(d)(1) applies to a broader range of power plants but does not
apply to those covered by § 212.124(d)(2). While subsection (d)(2) describes a
particular way of proving compliance with the particulate matter regulations,
subsection (d)(1) provides a general particulate matter defense: “[T]he opacity
limitations . . . shall not apply if it is shown that the emission unit was, at the time
of such emission, in compliance with the applicable particulate emissions limitations.
. . .”
As established above, Edwards is subject to subsection (d)(2) and therefore
cannot be subject to subsection (d)(1). If Edwards could mount a general defense
based upon the first sentence of subsection (d), it would essentially be mounting the
same defense established by subsection (d)(1). In that case, the division between
subsections (d)(1) and (d)(2) would collapse, and it would be superfluous to explicitly
allow emission sources subject to (d)(1) a general defense.
A review of the rule’s regulatory history confirms this reading of the text. See
First Nat’l Bank, 172 F.3d at 477. In its final order and opinion, the IPCB explained
that “Section 212.124(d)(1) and (2) are defense provisions for different types of
sources.” Final Order, Illinois Pollution Control Board, In re: Particulate Emission
Limitations, Rule 203(g)(1) of Chapter 2, 1988 Ill. ENV LEXIS 319, at *16. The stack
testing method described in subsection (d)(2) “is clearly designed for accurate
measurement of stack particulate emissions,” and is even “the preferred method of
demonstrating compliance under Section 212.124(d)(1).” Id. at *19. However,

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subsection (d)(1) provides a broader defense than (d)(2) because sources subject to it
“(1) may not have a stack or (2) may be allowed to use other methods in lieu of the
stack test to show compliance.” Id. The IPCB’s explanation of the difference between
(d)(1) and (d)(2) establishes that its decision to divide § 212.124(d) into two
subsections and provide subsection (d)(1) with a general defense was purposeful. It
also establishes that the IPCB did not intend for the method described in (d)(2) to be
a safe harbor. Rather, the method in subsection (d)(2) is the method through which
an emission unit subject to subsection (d)(2) must establish the defense, and only
units covered by subsection (d)(1) are “allowed to use other methods in lieu of the
stack test . . . .” See id. The U.S. EPA’s understanding of § 212.124(d) is consistent
with the IPCB’s, as it commented on the “clearly define[d] criteria for a source’s use
of compliance with the particulate regulations as a defense to a violation of the
applicable opacity standards.” Approval and Promulgation of Implementation Plans;
Illinois, 57 Fed. Reg. 61,834-01 (Dec. 29, 1992).12
In light of the clear structure of the regulation and the compelling regulatory
history, Defendants’ arguments to the contrary must be rejected. Defendants
primarily argue that § 212.124(d)(2) does not restrict them because the text of the
regulation is framed permissibly. They note that subsection (d)(2) provides “a
defense” to opacity exceedances. Pointing to other regulatory provisions, Defendants
argue that the IPCB knows how to draft exclusive defenses but elected not to use that
sort of language in § 212.124(d): it did not describe the defense in § 212.124(d)(2) as

The U.S. EPA’s understanding of § 212.124(d) is highly relevant, as the Clean Air
Act required that the U.S. EPA approve the Illinois SIP and any changes to it. See 42
U.S.C. § 7410.

12

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“‘the’ defense, the ‘only’ defense, the ‘exclusive’ defense, the ‘sole’ defense, or the
‘single’ defense.” (Doc. 109 at 46).
This textual argument is right, in a sense, but it does not prove what
Defendants want it to prove. The particulate matter defense is not the exclusive
defense available for opacity exceedances. Indeed, § 212.124 itself provides for
defenses other than the particulate matter defense at issue here. Compare 35 Ill.
Admin. Code § 212.124(a) (the startup, malfunction, and breakdown defense) with id.
§ 212.124(d) (the particulate matter defense). It is for that reason that the first
sentence of subsection (d) generally states that “[c]ompliance with the particulate
regulations of this Part shall constitute a defense.” 35 Ill. Admin. Code § 212.124(d)
(emphasis added).

Subsection (d)(2), which uses parallel language to the first

sentence of § 212.124(d) and also refers to itself as “a defense,” can be read naturally
to clarify the particulate matter defense defined in the first sentence by referring back
to it. See Ratzlaf v. United States, 510 U.S. 135, 143 (1994) (“A term appearing in
several places in a statutory text is generally read the same way each time it appears
. . . .”). The fact that the text of subsection (d)(2) refers to the specific particulate
matter defense as “a defense” does not mean that § 212.124(d) is broader. It just
means that § 212.124(d) itself is not an exclusive defense.
3. Fair Notice
Finally, Defendants argue that they are entitled to summary judgment on the
particulate matter defense on the basis of the fair notice doctrine. The fair notice
doctrine prohibits courts from “validating the application of a regulation that fails to
give fair warning of the conduct it prohibits or requires.” Gates & Fox Co. v. OSHRC,

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790 F.2d 154, 156 (D.C. Cir. 1986). When “regulations and other policy statements
[issued by the relevant regulator] are unclear . . . and where the agency itself
struggles to provide a definitive reading of the regulatory requirements, a regulated
party is not ‘on notice’ of the agency’s ultimate interpretation of the regulations, and
may not be punished.” Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1333-34 (D.C. Cir. 1995).
Courts assess whether a regulated entity had fair notice of the reach of a regulation
by considering whether “by reviewing the regulations and other public statements
issued by the agency, a regulated party acting in good faith would be able to identify,
with ‘ascertainable certainty’ the standards with which the agency expects parties to
conform. . . .” United States v. Southern Indiana Gas and Elec. Co., 245 F. Supp. 2d
1994, 2011 (S.D. Ind. 2003) (quoting Gen Elec. Co., 53 F.3d at 1329).
Defendants contend that their reading of § 212.124(d) is reasonable, and they
argue that they lacked fair notice of any contrary interpretation that would subject
Edwards to § 212.124(d)(2). This argument, however, does not contend with the
IPCB’s public statements. Defendants, “acting in good faith,” could have reasonably
ascertained that Edwards was subject to § 212.124(d)(2) based upon the “public
statements issued by” the IPCB at the time that it promulgated § 212.124. See
Southern Indiana Gas and Elec. Co., 245 F. Supp. 2d at 2011. The IPCB’s order
definitively explained that § 212.124(d)(2) “does not apply to sources subject to . . .
Standards” issued pursuant to Sections 111 or 112 of the Clean Air Act. See In re:
Particulate Emission Limitations, 1988 Ill. ENV LEXIS 319, at *16-17. Defendants
had fair notice that Edwards was subject to § 212.124(d)(2) during the relevant time
period because it was not subject to any standards during that time.

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Defendants could have also reasonably ascertained that the method provided
by § 212.124(d)(2) was Edwards’ sole available method of proving the particulate
matter defense. As explained above, Defendants could have looked to the text and
structure of the regulation itself. They could have also relied upon the IPCB and the
U.S. EPA’s public statements, which were consistent with the regulation’s text and
structure. See, e.g., id. at *18-19 (explaining that “[o]ne reason for the different
defense provision between [subsections (d)(1) and (d)(2)] is that the performance test
conducted in accordance” with subsection (d)(2) may not apply to sources subject to
subsection (d)(1), and sources subject to subject to (d)(1), unlike those subject to (d)(2),
may have other methods for proving the defense available); Approval and
Promulgation of Implementation Plans; Illinois, 57 Fed. Reg. 61,834-01 (praising the
“clearly define[d] criteria” for the particulate matter defense).
4. Conclusion
Section 212.124(d)(2)(B) provides the sole particulate matter defense available
to Defendants on Counts One and Two. To satisfy it, Edwards needed to conduct a
stack test while operating with an opacity that was equal to or greater than the
original exceedance within sixty days of that exceedance. There is no evidence that
Edwards conducted any such tests, so Plaintiffs are entitled to summary judgment
on Defendants’ particulate matter defense for those counts.
Section 212.124(d)(2)(A) provides the sole particulate matter defense available
to Defendants on Count Three. To satisfy it, Edwards needed to conduct a stack test
under the same operating conditions that were present during the initial exceedance
within sixty days of that exceedance.

Plaintiffs are also entitled to summary

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judgment on Defendants’ particulate matter defense for all exceedances on Count
Three except for those that occurred within sixty days prior to a stack test, which
Plaintiffs excluded from their motion. Defendants are not entitled to summary
judgment as to Counts One, Two, and Three because they have not shown, through
undisputed evidence, compliance with § 212.124(d)(2).
B.

The

Startup,

Malfunction,

and

Breakdown

Defense

Next, Defendants argue that the vast majority of the exceedances at issue are
excusable because they occurred during periods of malfunction and breakdown.
Defendants would need to rewrite the contours of this defense in order to take
advantage of it for nearly all of the exceedances at issue.
The Illinois SIP provides that Edwards may operate during periods of
malfunction and breakdown if its Permit allows it to do so. See 35 Ill. Admin Code §§
201.149, 201.261, 212.124(a). Edwards’ Permit does. See Permit Condition 5(a) (Doc.
104-8 at 2) (“Operation in excess of applicable opacity, particulate matter, and carbon
monoxide emission standards, is allowed during periods of startup, malfunction, and
breakdown.”).
When the Illinois EPA has granted permission to operate during periods of
malfunction and breakdown, “full compliance with any terms and conditions
connected” with the permission “shall be a prima facie defense to an enforcement
action alleging violation of . . . the emission and air quality standards [in the SIP].”
35 Ill. Admin. Code § 201.265. Edwards’ Permit imposes certain conditions on the
plant’s ability to operate during malfunction and breakdown, including requirements
that “[t]he permittee . . . notify the Illinois EPA’s Regional Office by telephone as soon

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as possible during normal working hours upon the occurrence of excess emission due
to malfunctions or breakdowns,” and “maintain records of excess emissions during
malfunctions and breakdowns . . . [that] include . . . [t]he steps taken to prevent
similar malfunctions or breakdowns. . . .” Permit Conditions 5(c), (d)(v), (Doc. 104-8
at 2, 3).13
It is undisputed that Edwards only notified the Illinois EPA of malfunctions or
breakdowns on eight occasions during the relevant time period. Plaintiffs argue that
they are entitled to summary judgment on this defense for all exceedances that they
have not excluded from their motion because Edwards needed to notify the Illinois
EPA about each of them. See Permit Condition 5(c) (Doc. 104-8 at 2); 35 Ill. Admin
Code § 201.265.14 Defendants, however, relying on an agreement with the Illinois
EPA that is dehors the Permit, argue that they only needed to report exceedances
that lasted longer than thirty-minutes to invoke this defense rather than reporting
all of the emissions that fall outside of Edwards’ opacity limitations. As discussed
below, Defendants’ arguments cannot be reconciled with the text of the SIP or the
Permit Condition 5(c), which requires that Edwards report all opacity exceedances
due to malfunction and breakdown. Therefore it must be rejected.15

During oral argument, Defendants conceded that these conditions in Permit
Condition 5 were the sort that they needed to comply with in order to establish the
prima facie defense provided by 35 Ill. Admin. Code § 201.265.
14 Plaintiffs excluded from their motion the eight exceedances for which Defendants
notified the Illinois EPA, but do not concede that Defendants satisfied the
malfunction and breakdown defense for those exceedances.
15 Plaintiffs also challenge Defendants’ compliance with Permit Condition 5’s record
keeping requirements. It is unnecessary to resolve whether Edwards kept proper
records of malfunctions and breakdowns for resolution of these motions.
13

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Defendants have produced some evidence that Edwards has a side-agreement
with the Illinois EPA to only report exceedances that last longer than thirty minutes.
This includes Edwards’ stayed, and non-operative, Title V Permit, which would
require that Edwards only report exceedances that are greater than thirty minutes
(Doc. 104-37 at 45); an internal email that pre-dates the operative Permit in which
an environmental manager for Edwards’ former operator discusses “opacity related
requirements,” and writes, “we have to report all periods when we exceed 30% on a
unit for more that [sic] 30 consecutive minutes,” (Doc. 104-46); and opacity
operational guidance dated March 19, 2004. (Doc. 110-4).
Such an agreement – if it existed – could not be reconciled with the text of the
currently operative Permit, which says nothing about the duration of emissions and
straightforwardly requires reporting “upon the occurrence of excess emissions due to
malfunctions or breakdowns.” Permit Condition 5(c). (Doc. 104-8 at 2). Defendants
argue that the two could be squared because the Permit requires that Edwards
comply with the Illinois EPA’s “reasonable and safe directives” with respect to
malfunctions and breakdowns. (Id.). But this argument reads the language of
Edwards’ Permit out of context. Permit Condition 5(c) requires that Edwards first
“notify the Illinois EPA’s Regional Office by telephone” when there are excess
emissions, and then “comply with all reasonable and safe directives . . . regarding
such malfunctions and breakdowns.” (Id.). The phrase “such malfunctions and
breakdowns” naturally refers to the subset of malfunctions and breakdowns that
Edwards has already reported to the Illinois EPA regional office. See Such Definition,
Oxford English Dictionary, http://www.oed.com/view/Entry/193400 (last visited June

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29, 2016) (“Such” refers to “the character, degree, or extent described, referred to, or
implied in what has been said.”). The directives anticipated by the Permit are specific
directives regarding already-reported exceedances, and not general directives with
respect to all future excess emissions.
Defendants also argue that Edwards complied with the SIP because most of
the excess opacity emissions due to malfunction and breakdown were short and
quickly corrected, and the SIP requires reporting during periods of “continuous
emission.” See 35 Ill. Admin. Code § 201.263. This argument is also unpersuasive.
The text of § 201.263 states that its terms are preempted by contrary terms in the
operating permit. See id. (requiring reports during “continued operation of an
emission source” in certain circumstances, “except if otherwise provided in the
operating permit.”). Edwards’ Permit requires reporting “upon the occurrence of
excess emission due to malfunctions or breakdowns.” Permit Condition 5(c) (Doc. 1048 at 2). This language in the Permit controls over any arguably contrary language in
the regulation. See 35 Ill. Admin. Code § 201.263.
Defendants’ attempt to rewrite the text of the Permit through informal
agreement must be rejected. The purported agreement between Edwards and the
Illinois EPA is dehors the Permit, so it is immaterial. No matter how longstanding
the agreement may have been, or its merit, the agreement cannot modify or
supplement Permit Condition 5(c). The Court previously held that third parties like
Plaintiffs can independently enforce the terms of Edwards’ Permit under the Clean
Air Act. See Nat. Res. Def. Council v. Ameren Energy Resources Co., Case No. 13-1181,
2013 WL 5799435 (C.D. Ill. Oct. 28, 2013). In such a context, courts and plaintiffs

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alike should be able to rely upon the language of the Permit and regulators’
reasonable interpretations of the language in the Permit. See Nat. Res. Def. Council,
Inc. v. Texaco Ref. & Mktg., Inc., 20 F. Supp. 2d 700, 710 n. 5 (D. Del. 1998), aff’d 182
F.3d 904 (3d Cir. 1999) (in the Clean Water Act context, explaining that “the agency’s
interpretation of the permit should be considered if not in conflict with the plain
language of the permit.”) (emphasis added). Allowing for informal amendments to the
text of the very document that the Clean Air Act allows Plaintiffs to enforce would
undercut the purposes of the Clean Air Act’s citizen suit provision. If Edwards and
the Illinois EPA wished to amend the Permit, they should have complied with the
provisions of the Illinois SIP that allow for amendment. See 35 Ill. Admin. Code §
201.167 (“The Agency may revise any permit issued . . . or any condition contained in
such permit . . . [u]pon reapplication by the permittee; or. . . [u]pon the revision of the
[statute or regulations].”).
Defendants argue, as a fallback, that they can prove the malfunction and
breakdown defense even if they have not complied with the conditions associated with
the Permit. They say that the prima facie defense provides the easiest method: if the
record reflected that Edwards complied with the terms and conditions of the
malfunction and breakdown defense in its Permit, it would presumptively establish
the defense. But, they argue that this doesn’t preclude the opportunity to establish a
malfunction and breakdown defense the hard way: without the presumption provided
for by the prima facie defense.
However, compliance with the terms and conditions of the Permit provides the
only method through which Edwards can prove the malfunction and breakdown

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defense. Here, a prima facie defense is synonymous with an affirmative defense. See
Lutz v. Chesapeake Appalacia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013) (explaining
that only once a defendant has made a prima facie defense will “the burden shift[] to
the plaintiff to establish an exception . . . .”); Premier Capital Mgmt., LLC v. Cohen,
No. 02 C 5368, 20008 WL 4378300, at *14 (N.D. Ill. Mar. 24, 2008) (“Thus, Plaintiffs
need only rebut if the defendants make out a prima facie affirmative defense” and do
not need to “preemptively offer facts to overcome the defenses as part of their case in
chief.”).
Allowing Defendants to prove the malfunction and breakdown defense in some
way other than compliance with the Permit’s conditions would present an unworkable
legal problem: there would be no clear boundaries on the defense. In other states, the
malfunction and breakdown defense is often defined by regulation. For example,
Georgia regulations provide that “[e]xcess emissions resulting from startup,
shutdown, [or] malfunction of any source which occur through ordinary diligence is
employed shall be allowed” so long as: (1) the best operational practices to reduce
emissions were used; (2) pollution control equipment was operated properly; and (3)
“the duration of excess emissions [was] minimized.” Sierra Club v. Georgia Power Co.,
443 F.3d 1346, 1351 (11th Cir. 2006) (discussing Ga. Comp. R. & Regs. 391-31.02(2)(a)7(i)). And in Texas, power plants must meet ten criteria in order to establish
the defense, including showing that opacity was properly documented and reported
to the regulator. See Sierra Club v. Energy Future Holdings Corp., No. W-12-CV-108,
2014 WL 2153913, at *2 (W.D. Tex. March 28, 2014) (discussing 30 Tex. Admin. Code
§ 101.222(d), (e)). Illinois has not promulgated these sorts of standards through

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regulation; instead the standards are included in the permits issued to power plants.
Therefore, without reference to the Permit conditions, there would be no obvious
elements to the malfunction and breakdown defense that Edwards would need to
satisfy.
Finally, Defendants argue that they would be denied fair notice if the Court
concluded that they were liable for Clean Air Act violations because they failed to
comply with the Permit’s reporting requirements for malfunctions and breakdowns.
As previously explained, Courts determine whether a regulated entity had fair notice
“by reviewing the regulations and other public statements issued by the agency,” and
determining whether “a regulated party acting in good faith would be able to identify
with ‘ascertainable certainty,’ the standards with which the agency expects parties
to conform . . . .” Southern Indiana Gas and Elec. Co., 245 F. Supp. 2d at 2011 (quoting
Gen. Elec. Co., 53 F. 3d at 1329).
Defendants’ fair notice defense is unpersuasive because they cannot point to
any textual ambiguity in the Permit that was issued by the Illinois EPA, nor can they
point to any public statements by the Illinois EPA that are contrary to the language
included in the Permit. Defendants’ fair notice argument is better conceived of as an
argument that Plaintiffs should be estopped from enforcing the Permit because
Defendants reasonably relied upon private statements made by the Illinois EPA that
are contrary to the language of the permit. To establish an estoppel defense,
Defendants would need to, among other things, show that they reasonably relied
upon statements made by Plaintiffs. See Edgewater Hosp., Inc. v. Bowen, 857 F.2d

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1123, 1137 (7th Cir. 1988). They have not done so, and at oral argument, counsel for
Defendants conceded that they were not making an estoppel argument.
Edwards cannot satisfy the malfunction and breakdown defense for those
unreported exceedances. Therefore, Plaintiffs’ motion for partial summary judgment
as to the malfunction and breakdown defense is granted for those exceedances at
issue in their motion. To the extent that Defendants have sought summary judgment
on the eight properly-reported exceedances, their motion is denied because they have
not provided evidence of compliance with each of the other conditions associated with
permission to operate during periods of malfunction and breakdown.
C. Off-line Defense
Finally, the parties dispute the applicability of the opacity regulations during
periods in which the emission units at Edwards were not operating. Approximately
200 of the opacity exceedances for which Plaintiffs have moved for summary
judgment occurred during periods when the operating unit was offline and
undergoing maintenance activities.
The parties agree that Edwards’ visible emissions exceeded thirty-percent
opacity during these periods of maintenance. Indeed, Defendants’ expert Richard
McRanie opined that “[o]pacity excursions can occur during off-line/shutdown periods
for a variety of reasons. Most of the reasons revolve around maintenance activities
inside the boiler, ductwork and ESP.”16 (Doc. 109-9 at 17). Plaintiffs conceed that

An ESP is an “electrostatic precipitator,” which is a tool utilized by coal-fired power
plants to minimize pollution.
16

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Edwards’ particulate matter limitations do not apply to units during these periods.17
Defendants argue that opacity limitations should not, either.
In Sierra Club v. Georgia Power, No. 3:02-CV-141-JTC, 2007 U.S. Dist. LEXIS
100219 (N.D. Ga. Jan. 11, 2007), a district court in Georgia determined that opacity
limits do not apply to coal-fired power plants in Georgia when a unit is not operating.
Id. at *23-24. That court examined both the record and the Georgia SIP, which
exempts maintenance activities from emissions standards, and concluded that
“[n]othing in the record indicates that the opacity regulations are intended to control
[offline] exceedances, as opposed to those exceedances relating to the combustion of
fuel, which occur while the unit is operating.” Id. at *24.
Defendants argue that this logic should apply here, especially because opacity
goes hand-in-hand with particulate matter limitations. They point primarily to the
structure of § 212.124(d)(2)(B) for support. Section 212.124(d)(2)(B), as discussed
earlier, allows power plants to excuse periods of heightened opacity by showing
compliance with particulate matter emissions “under the same operating conditions.”
Defendants argue that by framing the particulate matter defense in these terms, §
212.124(d)(2)(B) implies that actionable opacity exceedances only occur when a unit
is operating. Otherwise, there would be opacity exceedances for which the particulate
matter defense could not apply.
Unlike in Georgia Power, however, other aspects of Edwards’ Permit and the
Illinois SIP imply that opacity limits apply even when a unit is offline. Certain other

This is because the particulate matter limitations are stated in terms of pounds per
million British thermal units combusted. See Permit Condition 2 (Doc. 104-8 at 2).

17

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states limit the applicability of opacity limits during periods of maintenance. See
Georgia Power, 2007 U.S. Dist. LEXIS 100219, at *24; Pub. Citizen v. Am. Elec. Power
Co., No. 5:05-CV-39-DF, 2006 WL 3813762, at *5 (E.D. Tex. Dec. 27, 2006); Sierra
Club v. Energy Future Holdings Corp., 921 F. Supp. 2d 674, 684 (W.D. Tex. 2013).
But Defendants cannot point to an analogous section of the Illinois SIP that limits
the applicability of opacity regulations during periods of maintenance or shutdown.
Indeed, Edwards’ opacity limitation is framed as a uniform thirty-percent limit, with
no reference to whether the unit is operating or undergoing maintenance. See 35 Ill.
Admin. Code § 212.123(a); Permit Condition 3 (Doc. 104-8 at 2).
In light of this, the Court concludes that opacity limits continue to apply during
periods of maintenance. Defendants are correct that opacity is most often used as a
proxy for particulate matter. That is why the particulate matter defense in §
212.124(d)(2)(B) exists. But just because particulate matter emissions cannot be
measured during times of maintenance or shutdown does not mean that the opacity
limits should not apply during those times. Indeed, there are strong policy reasons
that it should: opaque clouds that Edwards emits during maintenance activities could
have preventable and high amounts of unmeasured particulate matter. It is sensible,
then, to subject those emissions to the opacity limits even if the particulate matter
defense cannot apply. If Illinois wished to create explicit exemptions from generally
applicable opacity limits during periods of maintenance, it could have. See, e.g.,
Georgia Power, 2007 U.S. Dist. LEXIS 100219, at *24. It did not, and interpreting the
Illinois SIP to imply that it did would conflict with the EPA’s determination that units
are not exempt from opacity regulations during periods of offline maintenance. See

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State Implementation Plans: Response to Petition for Rulemaking, 80 Fed. Reg.
33,840, 33,911 (June 12, 2015) (“[T]he EPA does not agree with commenters that total
exemptions from opacity emission limitations during [maintenance] activities are
consistent with CAA requirements for SIP provisions. . . [M]aintenance activities are
predictable and planned activities during which sources should be expected to comply
with applicable emission limitations.”).
For these reasons, Defendants’ motion for summary judgment on this issue is
granted as to Count Three. The fact that Edwards was off-line, however, is not a
defense to Counts One and Two.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Partial Summary Judgment
(Doc. 104) is GRANTED IN PART and DENIED IN PART. The Court concludes that
Plaintiffs have standing to bring this lawsuit, grants summary judgment to Plaintiffs
on all opacity exceedances in Counts One and Two for which they have moved for
summary judgment, and grants summary judgment to Plaintiffs on all exceedances
for which they have moved for summary judgment with respect to Count Three except
for those opacity exceedances that occurred while the relevant unit was off-line.
Defendants’ Motion for Summary Judgment (Doc. 108) is GRANTED with respect to
those particulate matter exceedances in Count Three that occurred while the relevant
unit was off-line, but otherwise DENIED. Plaintiffs’ Motion to Strike (Doc. 119) is
DENIED AS MOOT. Plaintiffs’ motion to exclude certain expert testimony (Doc. 113)
remains pending. By September 1, 2016, Plaintiffs shall notify the Court whether this
order has mooted any of the issues raised in that motion. IT IS SO ORDERED.

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Entered this 23rd day of August, 2016.

s/Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

50