Case: 4:11-cv-00077-RWS Doc. #: 858 Filed: 02/15/17 Page: 1 of 3 PageID #: 48498 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION UNITED STATES OF AMERICA, Plaintiff, v. AMEREN MISSOURI, Defendant. Case No. 4:11 CV 77 RWS SIERRA CLUB S MOTION TO INTERVENE Sierra Club respectfully moves to intervene in the above-captioned proceeding pursuant to Section 304 of the Clean Air Act and Fed. R. Civ. P. 24(a. Section 304(b(1(B provides that any person may intervene as a matter of right in a Clean Air Act enforcement suit brought by EPA or a state. 42 U.S.C. 7604(b(1(B. Sierra Club counsel consulted the parties, and has been advised that this motion is opposed by the defendant, and that the United States has not yet determined its position. A memorandum setting forth Sierra Club s contentions of fact and law, argument, and authorities accompanies this motion. In accordance with Rule 24(c, Sierra Club s [Proposed] Complaint in Intervention is attached hereto as Exhibit A. Date: February 15, 2017 Respectfully submitted, /s/ Benjamin Blustein Benjamin Blustein (pro hac vice motion pending MINER, BARNHILL & GALLAND, P.C. 325 N. LaSalle, Suite 350 Chicago, IL 60654 Tel: (312 751-1170
Case: 4:11-cv-00077-RWS Doc. #: 858 Filed: 02/15/17 Page: 2 of 3 PageID #: 48499 Fax: (312 751-0438 bblustein@lawmbg.com David Baltmanis (pro hac vice motion pending MINER, BARNHILL & GALLAND, P.C. 325 N. LaSalle, Suite 350 Chicago, IL 60654 Tel: (312 751-1170 Fax: (312 751-0438 dbaltmanis@lawmbg.com Sunil Bector (pro hac vice motion pending SIERRA CLUB 2101 Webster, Suite 1300 Oakland CA 94612 Tel: (415 977-5759 Fax: (415 977-5793 sunil.bector@sierraclub.org Attorneys for Plaintiff Sierra Club
Case: 4:11-cv-00077-RWS Doc. #: 858 Filed: 02/15/17 Page: 3 of 3 PageID #: 48500 CERTIFICATE OF SERVICE I hereby certify that on February 15, 2017, I caused a copy of the foregoing Motion to Intervene to be filed and served upon all counsel of record via CM/ECF. /s/ Sunil Bector Counsel for Sierra Club
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 1 of 16 PageID #: 48501 Exhibit A
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 2 of 16 PageID #: 48502 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION UNITED STATES OF AMERICA, Plaintiff, and SIERRA CLUB, Plaintiff-Intervenor v. AMEREN MISSOURI, Defendant. Case No. 4:11 CV 77 RWS [PROPOSED] COMPLAINT IN INTERVENTION INTRODUCTION 1. Plaintiff-Intervenor Sierra Club brings this complaint against Union Electric Company d/b/a Ameren Missouri ( Defendant or Ameren for violations of the Clean Air Act ( CAA or the Act, 42 U.S.C. 7401 et seq., at the Rush Island Plant in Festus, Missouri. Pursuant to Sections 113 and 167 of the Act, 42 U.S.C. 7413(b and 7477, Sierra Club seeks injunctive relief for violations of: (a the New Source Review ( NSR, Prevention of Significant Deterioration ( PSD provisions of the CAA, 42 U.S.C. 7470-92 and applicable implementing regulations; (b the federally approved and enforceable Missouri State Implementation Plan ( Missouri SIP ; (c Title V of the Act, 42 U.S.C. 7661-7661f; (d federal regulations implementing Title V of the Act at 40 C.F.R. Part 70; and (e Missouri s federally approved Title V program, 10 C.S.R. 10-6.065. 1
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 3 of 16 PageID #: 48503 2. Ameren performed major modifications of the Rush Island Plant in violation of the CAA. Ameren failed to obtain the required permits for these multi-million dollar modifications. Nor did Ameren install and operate state-of-the-art air pollution controls, as the law requires, including the best available control technology ( BACT to reduce emissions of sulfur dioxide ( SO 2. 3. As a result of Ameren s operation of the Rush Island Plant following these unlawful modifications, significant amounts of SO 2 pollution have been, and continue to be, released into the air. The Rush Island Plant ranks among the largest sources of air pollution in Missouri and the nation, emitting tens of thousands of tons of SO 2 each year. These emissions harm public health and the environment, contributing to premature mortality, asthma attacks, acid rain and other adverse effects in downwind communities and natural areas. JURISDICTION AND VENUE 4. This Court has jurisdiction over the subject matter of this action pursuant to Sections 113(b and 167 of the Act, 42 U.S.C. 7413(b and 7477, and pursuant to 28 U.S.C. 1331, 1345, 1355, and 1395(a. This Court has jurisdiction over Sierra Club s claims pursuant to 42 U.S.C. 7604(b(1(B. 5. Venue is proper in this District pursuant to Sections 113(b of the Act, 42 U.S.C. 7413(b, and 28 U.S.C. 1391(b and (c because the violations which constitute the basis of this Third Amended Complaint occurred in this District and the Rush Island Plant is operated by Defendant in this District. NOTICES 6. On May 27, 2011, the United States Environmental Protection Agency ( U.S. EPA issued an amended Notice of Violation ( NOV to Defendant pursuant to Section 2
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 4 of 16 PageID #: 48504 113(a(l and (b(l of the Act, 42 U.S.C. 7413(a(l and (b(l, and provided a copy of the amended NOV to the State of Missouri. U.S. EPA previously issued the NOVs to Defendant on October 14, 2010 and January 26, 2010 and provided a copy of these NOVs to the State of Missouri. 7. The 30-day period between issuance of the NOV and commencement of a civil action, required under CAA Section 113, 42 U.S.C. 7413, has elapsed. 8. The United States of America ( United States, acting on behalf of the Administrator of the U.S. EPA, has provided notice of the commencement of this action to the State of Missouri, pursuant to Section l 13(b of the Act, 42 U.S.C. 7413(b. AUTHORITY 9. Authority to bring this action is vested in the Attorney General of the United States by CAA Section 305, 42 U.S.C. 7605, and pursuant to 28 U.S.C. 516 and 519. 10. Sierra Club brings this Complaint in Intervention pursuant to 42 U.S.C. 7604(b(1(B, which provides Sierra Club an unconditional right of intervention when the U.S. EPA or a State has commenced an enforcement action for claims against any person who is alleged to have violated or be in violation of an emissions standard or limitation under the Clean Air Act. See 42 U.S.C. 7604(a(1. The claims asserted in the United States Third Amended Complaint allege violations of emissions standards or limitations found in the Missouri SIP and Rush Island s Title V permit. 42 U.S.C. 7604(f. DEFENDANT 11. Defendant Ameren is a Missouri corporation. Defendant's incorporated name is Union Electric Company, but Defendant conducts business under the name Ameren Missouri. 3
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 5 of 16 PageID #: 48505 12. As a corporate entity, Ameren is a person within the meaning of CAA Section 302(e, 42 U.S.C. 7602(e, and 10 C.S.R. 10-6.020(2. 13. Ameren is the owner and/or operator of the Rush Island Plant in Festus, Jefferson County, Missouri. 14. Ameren s Rush Island Plant consists, in part, of Units 1 and 2, which are coalfired electric generating units. Coal-fired units include boilers that bum coal to generate heat that converts water into steam. Hot gases from burning coal flow through duct work and pass across a series of major components in the unit, which heat water into steam and ultimately pass the high temperature, high-pressure steam through steel tubes in the components to turbines that spin a generator to produce electricity. Each of these major boiler components consists of a massive array of numerous large steel tubes or, in the case of components that help preheat air in the boiler, non-pressure part tube bundles or baskets with corrugated metal heat exchanging surface. These components can weigh many tons and cost millions of dollars to replace. Major components of a coal-fired boiler include the superheater, economizer, reheater, lower slope tubes, and air preheater. When a major component in a coal-fired electric generating unit breaks down, such as one of the components replaced by Ameren, it causes the unit to be taken out of service for repairs - events known as forced outages. A deteriorated major component can cause increasing numbers of forced outages, as well as maintenance and scheduled outages needed to maintain the worn-out equipment, preventing the unit from generating electricity when it is needed. By replacing the worn-out component that is causing the outages, a utility can improve the unit's availability to operate more hours in a year. At Rush Island Units 1 and 2, the newly available hours of operation enabled by the project would be expected to be used to generate electricity. Rush Island Units 1 and 2 are both baseload coal-fired electric generating 4
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 6 of 16 PageID #: 48506 units that operate nearly continuously when available to supply the electricity needed to meet minimum levels of customer demand. These additional hours of operation translate into increased amounts of coal burned in the unit, and more annual pollution emitted from the unit s smokestack into the atmosphere. 15. In addition to improving the availability of a coal-fired generating unit, replacing deteriorated components with new, improved components can also increase the capacity of the boiler to pass steam through the components to the turbines at greater volumes and/or at higher temperatures. This can result in an increase in the amount of coal burned, and pollution emitted, during each hour of the unit's operation. Even if a project does not increase the amount of coal burned per hour, an improved component can increase the capacity and/or efficiency of the unit, which for a coal-fired generating unit like Rush Island Units 1 and 2, can make the unit more cost-effective and thus more economical to operate than other units. This can lead the utility to operate that improved unit during more hours of operation and/or at higher levels of operation, which in turn can lead to increases in coal burned at the unit and SO 2 and other pollutants emitted from the unit's smokestack on an annual basis. GOVERNMENT PLAINTIFF 16. The government Plaintiff in this action is the United States of America, by authority of the Attorney General of the United States, acting at the request of the U.S. EPA Administrator. PLAINTIFF INTERVENOR SIERRA CLUB 17. Sierra Club, the citizen Plaintiff in this action, is an incorporated, not-for-profit organization. Its headquarters are at 2101 Webster Street, Suite 1300, Oakland, CA 94612 and its Missouri Chapter office is located at 2818 Sutton Boulevard, St. Louis, MO 63143. Sierra Club s 5
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 7 of 16 PageID #: 48507 mission is to explore, enjoy, and protect the wild places of the earth; to practice and promote the responsible use of the earth s ecosystems and resources; to educate and enlist humanity to protect and restore the quality of the natural and human environment; and to use all lawful means to carry out these objectives. Sierra Club has been working to improve air quality in Missouri, and around the country, for several decades. Sierra Club has approximately 650,000 members, with over 9,500 members in Missouri, and several hundred members in the counties surrounding the Rush Island power plant. 18. Sierra Club s members and supporters live, work, and recreate near and downwind the Rush Island power plant and, consequently, breathe, enjoy, and use the ambient air in those areas. Those members enjoyment and use of the air, their property, and recreational areas is impaired by pollution in excess of what it would be if Rush Island had not violated and does not continue to violate the Clean Air Act. Rush Island emits SO 2 and other pollutants that exacerbate air pollution in the areas around and downwind of the plant. This pollution poses a public health risk, and it harms the aesthetic and recreational interests of Sierra Club s members. 19. Sierra Club has a long history of working to protect and improve air quality in Missouri, and over the past several years has prioritized advocacy and enforcement of environmental laws against Ameren s coal-fired power fleet, including the Rush Island power plant. Because Rush Island is the second-largest source of sulfur dioxide pollution in the state of Missouri, Sierra Club has a strong interest in ensuring that modern pollution controls are installed at the plant. 6
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 8 of 16 PageID #: 48508 STATUTORY AND REGULATORY BACKGROUND 20. Sierra Club adopts and incorporates the statutory and regulatory background set forth in the United States Third Amended Complaint, paragraphs 15 to 56, except for the reference to civil penalties in paragraph 54. GENERAL ALLEGATIONS 21. Sierra Club adopts and incorporates the general allegations set forth in the United States Third Amended Complaint, paragraphs 57 to 64. FIRST CLAIM FOR RELIEF (PSD Violations at Rush Island Unit 1 in 2007 22. Paragraphs 1 through 21 are realleged and incorporated herein by reference. 23. From approximately February 2007 to May 2007, Defendant began actual construction and operation of one or more major modifications, as defined in the CAA and Missouri SIP, on Rush Island Unit 1. These major modifications included one or more physical changes and/or changes in the method of operation at Rush Island Unit 1, including, but not limited to: a project to replace the economizer, reheater, lower slope tubes, and air preheater. These multi-million dollar modifications were described in the notices of violation dated January 26, 2010, October 14, 2010, and May 27, 2011. These physical changes and/or changes in the method of operation resulted in a significant net emissions increase of SO 2, as defined in the Missouri SIP, by increasing the availability and capacity of Rush Island Unit 1 to operate more hours and at higher loads than it did during the applicable period before the major modification, thus enabling and causing Rush Island Unit 1 to burn more coal and release greater amounts of SO2 into the atmosphere on an annual and hourly basis. 7
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 9 of 16 PageID #: 48509 24. Defendant did not comply with the PSD requirements in the Act and the Missouri SIP with respect to the major modifications and subsequent operations at Rush Island Unit 1. Among other things, Defendant: (i undertook such major modifications without first obtaining a PSD permit for the construction and operation of the modified unit; (ii undertook such major modifications without undergoing a BACT determination in connection with the major modifications; (iii undertook such major modifications without installing BACT for control of SO 2 emissions; (iv has failed to operate BACT for control of SO 2 emissions pursuant to a BACT determination; (v has failed to operate in compliance with BACT emission limitations, including limitations that are no less stringent than applicable standards under Section 111 of the CAA; and (vi operated the unit after undergoing an unpermitted major modification, despite the express prohibition in the Missouri SIP against operating an unlawfully modified source. 25. Defendant has violated and continues to violate Section 165(a of the Act, 42 U.S.C. 7475(a, and the PSD regulations contained in the federally enforceable Missouri SIP. Unless restrained by an order of this Court, these violations will continue. 26. As provided in Section 113(b of the Act, 42 U.S.C. 7413(b, and Section 167 of the Act, 42 U.S.C. 7477, the violations set forth above subject Defendant to injunctive relief. SECOND CLAIM FOR RELIEF (PSD Violations at Rush Island Unit 2 in 2010 27. Paragraphs 1 through 26 are realleged and incorporated herein by reference. 28. From approximately January 2010 to April 2010, Defendant began actual construction and operation of one or more major modifications, as defined in the CAA and Missouri SIP, on Rush Island Unit 2. These major modifications included one or more physical changes and/or changes in the method of operation at Rush Island Unit 2, including, but not 8
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 10 of 16 PageID #: 48510 limited to: a project to replace the economizer, reheater, and air preheater. These multi-million dollar modifications were described in the notices of violation dated October 14, 2010 and May 27, 2011. These physical changes and/or changes in the method of operation resulted in a significant net emissions increase of SO 2, as defined in the Missouri SIP, by increasing the availability and capacity of Rush Island Unit 2 to operate more hours and at higher loads than it did during the applicable period before the major modification, thus enabling and causing Rush Island Unit 2 to bum more coal and release greater amounts of SO 2 into the atmosphere on an annual and hourly basis. 29. Defendant did not comply with the PSD requirements in the Act and the Missouri SIP with respect to the major modifications and subsequent operations at Rush Island Unit 2. Among other things, Defendant: (i undertook such major modifications without first obtaining a PSD permit for the construction and operation of the modified unit; (ii undertook such major modifications without undergoing a BACT determination in connection with the major modifications; (iii undertook such major modifications without installing BACT for control of SO 2 emissions; (iv has failed to operate BACT for control of SO 2 emissions pursuant to a BACT determination; (v has failed to operate in compliance with BACT emission limitations, including limitations that are no less stringent than applicable standards under Section 111 of the CAA; and (vi operated the unit after undergoing an unpermitted major modification, despite the express prohibition in the Missouri SIP against operating an unlawfully modified source. 30. Defendant has violated and continues to violate Section 165(a of the Act, 42 U.S.C. 7475(a and the PSD regulations contained in the federally enforceable Missouri SIP. Unless restrained by an order of this Court, these violations will continue. 9
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 11 of 16 PageID #: 48511 31. As provided in Section 113(b of the Act, 42 U.S.C. 7413(b, and Section 167 of the Act, 42 U.S.C. 7477, the violations set forth above subject Defendant to injunctive relief. THIRD CLAIM FOR RELIEF (Title V Violations at Rush Island Unit 1 32. Paragraphs 1 through 32 are realleged and incorporated herein by reference. 33. As set forth above, Defendant commenced construction of major modifications at Rush Island Unit 1. As a result, these major modifications triggered the requirements to, inter alia, undergo a BACT determination, obtain a PSD permit establishing emissions limitations that meet BACT requirements pursuant to such a determination, and operate in compliance with such limitations. Defendant has failed to satisfy these requirements. 34. Subsequently, Defendant failed to submit an accurate and complete Title V permit application for Rush Island Unit 1 that identifies all applicable requirements, accurately certifies compliance with such requirements, contains a compliance plan for all applicable requirements for which the source was not in compliance, including the requirement to meet BACT pursuant to a determination under PSD, and other specific information that may be necessary to implement and enforce the applicable requirements of the Act and/or Missouri s Title V regulations or determine the applicability of such requirements. Defendant also failed to supplement or correct the Title V permit applications containing such information for Rush Island Unit 1. 35. Defendant has failed to obtain a proper or adequate Title V operating permit for Rush Island Unit 1 that contains one or more emissions limitations for SO 2 that meet BACT. Defendant has thereafter operated Rush Island Unit 1 without meeting such limitations and without having an adequate operating permit that requires compliance with such limitations or 10
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 12 of 16 PageID #: 48512 that contains a compliance plan for all applicable requirements for which the source is not in compliance. 36. Defendant has violated its Title V Operating Permit applicable to Rush Island Unit 1 during the times relevant to this Third Amended Complaint by failing to accurately certify compliance with all of the federally enforceable terms and conditions contained in the permit. 37. Defendant has violated its Title V Operating Permit applicable to Rush Island Unit 1 during the times relevant to this Third Amended Complaint by commencing one or more major modifications of Rush Island Unit 1 and by operating Rush Island Unit 1 after the major modification(s without obtaining a permit from the permitting authority under 10 C.S.R. 10-6.060. 38. Defendant s conduct has violated and continues to violate Sections 502(a, 503(c and 504(a of the Act, 42 U.S.C. 7661a(a, 7661b(c, and 7661c(a, and the Title V implementing regulations including 40 C.F.R. 70.5-70.6, and 10 C.S.R. 10-6.065. 39. Unless restrained by an order of this Court, these violations of the Act will continue. 40. As provided in Section 113(b of the Act, 42 U.S.C. 7413(b, and Section 167 of the Act, 42 U.S.C. 7477, the violations set forth above subject Defendant to injunctive relief. FOURTH CLAIM FOR RELIEF (Title V Violations at Rush Island Unit 2 41. Paragraphs 1 through 41 are realleged and incorporated herein by reference. 42. As set forth above, Defendant commenced construction of major modifications at Rush Island Unit 2. As a result, these major modifications triggered the requirements to, inter alia, undergo a BACT determination, obtain a PSD permit establishing emissions limitations that 11
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 13 of 16 PageID #: 48513 meet BACT requirements pursuant to such a determination, and operate in compliance with such limitations. Defendant has failed to satisfy these requirements. 43. Subsequently, Defendant failed to submit an accurate and complete Title V permit application for Rush Island Unit 2 that identifies all applicable requirements, accurately certifies compliance with such requirements, contains a compliance plan for all applicable requirements for which the source was not in compliance, including the requirement to meet BACT pursuant to a determination under PSD, and other specific information that may be necessary to implement and enforce the applicable requirements of the Act and/or Missouri s Title V regulations or determine the applicability of such requirements. Defendant also failed to supplement or correct the Title V permit applications containing such information for Rush Island Unit 2. 44. Defendant has failed to obtain a proper or adequate Title V operating permit for Rush Island Unit 2 that contains one or more emissions limitations for SO 2 that meet BACT. Defendant has thereafter operated Rush Island Unit 2 without meeting such limitations and without having an adequate operating permit that requires compliance with such limitations or that contains a compliance plan for all applicable requirements for which the source is not in compliance. 45. Defendant has violated its Title V Operating Permit applicable to Rush Island Unit 2 during the times relevant to this Third Amended Complaint by failing to accurately certify compliance with all of the federally enforceable terms and conditions contained in the permit. 46. Defendant has violated its Title V Operating Permit applicable to Rush Island Unit 2 during the times relevant to this Third Amended Complaint by commencing one or more major modifications at Rush Island Unit 2 and by operating Rush Island Unit 2 after the major 12
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 14 of 16 PageID #: 48514 modification(s without obtaining a permit from the permitting authority under 10 C.S.R. 10-6.060. 47. Defendant s conduct has violated and continues to violate Sections 502(a, 503(c and 504(a of the Act, 42 U.S.C. 7661a(a, 7661b(c, and 7661c(a, and the Title V implementing regulations including 40 C.F.R. 70.5-70.6, and 10 C.S.R. 10-6.065. 48. Unless restrained by an order of this Court, these violations of the Act will continue. 49. As provided in Section 113(b of the Act, 42 U.S.C. 7413(b, and Section 167 of the Act, 42 U.S.C. 7477, the violations set forth above subject Defendant to injunctive relief. PRAYER FOR RELIEF WHEREFORE, based upon all the allegations contained in Paragraphs 1 through 50 above, Sierra Club requests that this Court: 1. Permanently enjoin the Defendant from operating the Rush Island Plant except in accordance with the CAA and any applicable regulatory requirements; 2. Order the Defendant to apply for and comply with permits for the Rush Island Plant that are in conformity with the requirements of the PSD program, the Missouri SIP, and with the federal and Missouri Title V programs; 3. Order the Defendant to remedy its past and ongoing violations by, among other things, requiring Defendant to install and operate BACT at the Rush Island Plant to control emissions of SO 2 ; 4. Order Defendant to conduct audits of its operations to determine if any additional modifications have occurred which would require it to meet the requirements of PSD and report the results of these audits to the United States and Sierra Club; 13
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 15 of 16 PageID #: 48515 5. Order Defendant to surrender emission allowances or credits to offset and mitigate its illegal emissions; 6. Order Defendant to take other appropriate actions to remedy, mitigate, and offset the harm to public health and the environment caused by the violations of the CAA alleged above; 7. Order Defendant to pay Sierra Club s costs of litigation, including reasonable attorney and expert witness fees, pursuant to 42 U.S.C. 7604(d; and, 8. Grant such other relief as the Court deems just and proper. Date: February 15, 2017 Respectfully submitted, /s/ Benjamin Blustein Benjamin Blustein (pro hac vice motion pending MINER, BARNHILL & GALLAND, P.C. 325 N. LaSalle, Suite 350 Chicago, IL 60654 Tel: (312 751-1170 Fax: (312 751-0438 bblustein@lawmbg.com David Baltmanis (pro hac vice motion pending MINER, BARNHILL & GALLAND, P.C. 325 N. LaSalle, Suite 350 Chicago, IL 60654 Tel: (312 751-1170 Fax: (312 751-0438 dbaltmanis@lawmbg.com Sunil Bector (pro hac vice motion pending SIERRA CLUB 2101 Webster, Suite 1300 Oakland CA 94612 Tel: (415 977-5759 Fax: (415 977-5793 sunil.bector@sierraclub.org Attorneys for Plaintiff Sierra Club 14
Case: 4:11-cv-00077-RWS Doc. #: 858-1 Filed: 02/15/17 Page: 16 of 16 PageID #: 48516 CERTIFICATE OF SERVICE I hereby certify that on February 15, 2017, I caused a copy of the foregoing [Proposed] Complaint in Intervention to be filed and served upon all counsel of record via CM/ECF. /s/ Sunil Bector Counsel for Sierra Club 15
Case: 4:11-cv-00077-RWS Doc. #: 859 Filed: 02/15/17 Page: 1 of 14 PageID #: 48517 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION UNITED STATES OF AMERICA, Plaintiff, v. AMEREN MISSOURI, Defendant. Case No. 4:11 CV 77 RWS MEMORANDUM IN SUPPORT OF SIERRA CLUB S MOTION TO INTERVENE I. INTRODUCTION Sierra Club respectfully seeks to intervene in this matter to ensure that its interests are protected during the remedial and any subsequent stages of the litigation. Pursuant to Section 304(b(1(B of the Clean Air Act, 42 U.S.C. 7604(b(1(B, Sierra Club has an unconditional right of intervention. Moreover, Sierra Club meets all of the requirements for intervention of right under Rule 24(a(1 of the Federal Rules of Civil Procedure. Put simply, Sierra Club seeks intervention to ensure that appropriate remedies are pursued and implemented to address the Clean Air Act violations which this Court found in its Memorandum Opinion and Order of January 23, 2017 ( Order, and to protect Sierra Club s interests during any appeals or settlement discussions. Sierra Club acted promptly to intervene as soon as it became apparent that its interests may no longer be protected by the United States. Because the remedies phase has not yet begun, intervention will not cause any delay or other prejudice to the existing parties. 1
Case: 4:11-cv-00077-RWS Doc. #: 859 Filed: 02/15/17 Page: 2 of 14 PageID #: 48518 II. BACKGROUND A. Background on Sierra Club and its Members. Sierra Club is an incorporated, not-for-profit environmental organization whose purpose includes reducing and eliminating pollution and protecting public health including pollution resulting from the combustion of coal, among the largest contributors to air pollution in the United States. Pollution from coal-burning plants negatively affects Sierra Club s members. Sierra Club has over 650,000 members nationwide, including over 9,500 members in Missouri. Many of these members live, work, and recreate in and around Jefferson County, Missouri, as well as other areas near and downwind from the Rush Island power plant. Sierra Club members are exposed to sulfur dioxide pollution from the Rush Island plant, and their health, welfare, and recreational interests are harmed by that pollution. Exposure to SO 2 emitted by the Rush Island plant increases the risk that these members will suffer from respiratory, cardiac, and other diseases in the future. Sierra Club has a long history of working to protect and improve air quality in Missouri. It has a particularly strong interest in ensuring that the Rush Island coal-burning power plant operates in compliance with the Clean Air Act ( Act or CAA because the plant is Missouri s second-largest source of SO 2 pollution. Those interests are especially pertinent to the proceedings that will follow this Court s recent Order finding that Ameren violated its operating permit and the Act by failing to obtain the requisite permits and installing best available pollution control technology when it made major modifications to Rush Island Unit 1 in 2007 and Rush Island Unit 2 in 2010. Sierra Club has a strong interest in ensuring that appropriate measures, including proper pollution controls, are pursued and implemented at Rush Island to remedy these CAA violations. 2
Case: 4:11-cv-00077-RWS Doc. #: 859 Filed: 02/15/17 Page: 3 of 14 PageID #: 48519 B. Sierra Club has Well-Founded Reasons to Seek Intervention at this Juncture. Sierra Club has been aware of this litigation since it was filed. Until recently, Sierra Club believed that its interests would be protected by the United States. However, the new Administration which assumed control of this litigation on January 20, three days before the Court entered its Order, has made public comments indicating a significant likelihood that Sierra Club s interests will no longer be protected by the United States. The Administration s public statements make apparent that it intends to curtail environmental enforcement by the EPA, on whose behalf this case was brought. Speaking about the EPA as a candidate during a March 2016 presidential debate, President Trump promised to get rid of it in almost every form. 1 After the election, then-president-elect Trump stated, Environmental protection, what they do is a disgrace. 2 Myron Ebell, who led the Administration s EPA transition team, has recommended that its staff be reduced by two-thirds, from approximately 15,000 to 5,000 staffers. 3 Scott Pruitt, the Administration s nominee to run the EPA, has repeatedly demonstrated an approach to environmental enforcement that is diametrically opposed to Sierra Club s interests. As Attorney General of Oklahoma, Mr. Pruitt dismantled the environmental enforcement unit in his home state. 4 He describes himself in his official state website biography 1 Davenport, Coral. E.P.A. Faces Bigger Tasks, Smaller Budgets and Louder Critics. The New York Times 18 Mar. 2016: www.nytimes.com. 2 Davenport, Coral. Scott Pruitt Is Seen Cutting the E.P.A. With a Scalpel, Not a Cleaver. The New York Times 05 Feb. 2017: www.nytimes.com. 3 Id. 4 Lipton, Eric and Davenport, Coral. Scott Pruitt, Trump s E.P.A. Pick, Backed Industry Donors Over Regulators. The New York Times 14 Jan. 2017: www.nytimes.com. 3
Case: 4:11-cv-00077-RWS Doc. #: 859 Filed: 02/15/17 Page: 4 of 14 PageID #: 48520 as a leading advocate against the EPA s activist agenda. 5 Attorney General Pruitt sued the EPA at least 10 times, 6 including lawsuits to overturn federal rules limiting SO 2 pollution from power plants such as the Cross-State Air Pollution Rule 7 and the Mercury and Air Toxics Standards, 8 as well as the Clean Power Plan 9 and EPA efforts to reduce ozone pollution. 10 Regulation through litigation is wrong in my view, Mr. Pruitt told The Oklahoman newspaper in April 2015. 11 Mr. Pruitt also testified before Congress that the EPA was never intended to be our nation s foremost environmental litigator. 12 Mr. Pruitt s alliances and coordination with energy lobbyists such as his signing letters on Oklahoma state stationary which were actually drafted by energy company lawyers and which 5 https://www.ok.gov/oag/media/about_the_ag/. 6 In his recent responses to Senate questions, Mr. Pruitt stated: As Attorney General of Oklahoma, I have participated personally and substantially in the following suits against the EPA: EME Homer City Generation v. EPA, No. 12-1182 (U.S.S.C. Michigan v. EPA, No. 14-46 (U.S.S.C. Murray Energy Corp. v. EPA, Nos. 14-1112, 14-1151 (D.C. Cir. Murray Energy Corp. v. EPA, Nos. 15-1385, 15-1392, 15-1490, 15-1491 & 15-1494 (D.C. Cir. Oklahoma v. EPA, Nos.12 9526, 12 9527 (10th Cir. Oklahoma ex rel. Pruitt v. EPA, No. 16-5038 (10th Cir.. Oklahoma ex rel. Pruitt v. McCarthy, No. 15- cv-369 (N.D. Okla.. Oklahoma v EPA, No, 13-cv-00726 (W.D. Okla. West Virginia v. EPA, No. 14-1146 (D.C. Cir. West Virginia v. EPA, No. 16-1264 (D.C. Cir.. 7 EME Homer City Generation v. EPA, No. 12-1182 (U.S.S.C. 8 White Stallion Energy Center v. EPA, No. 12-1100 (D.C. Cir. 9 Murray Energy Center v. EPA, Nos. 14-1112, 14-1151 (D.C. Cir. 10 Murray Energy Center v. EPA, Nos. 15-1385, et al. (D.C. Cir. 11 Green, Rick. Oklahoma rivers are clearer despite no ruling in poultry case. The Oklahoman 13 Apr. 2015: www.newsok.com. 12 http://www.npr.org/2016/12/07/504723628/trump-selects-oklahoma-attorney-general-scott-pruitt-torun-the-epa 4
Case: 4:11-cv-00077-RWS Doc. #: 859 Filed: 02/15/17 Page: 5 of 14 PageID #: 48521 criticized federal environmental rules further demonstrate that Sierra Club s interests in the present litigation will no longer be adequately protected by the EPA. 13 III. DISCUSSION Federal Rule of Civil Procedure 24(a provides that, upon a timely motion, the Court must permit anyone to intervene who (1 is given an unconditional right to intervene by a federal statute. Fed. R. Civ. P. 24(a(1. In this Circuit, [w]e construe Rule 24 liberally and resolve any doubts in favor of the proposed intervenors. Kan. Pub. Employees Ret. Sys. v. Reimer & Koger Assoc., Inc., 60 F.3d 1304, 1307 (8th Cir. 1995 (internal citation omitted. Sierra Club meets the Rule 24(a(1 criteria here because it has an unconditional right to intervene pursuant to Section 304(b(1(B under the Clean Air Act, 42 U.S.C. 7604(b(1(B, and it has acted in a timely manner in light of all the circumstances in the case. Sierra Club also meets the requirements of Article III standing. A. Sierra Club has an Unconditional Right to Intervene under the Clean Air Act. Sierra Club has an unconditional right of intervention under the citizen suit provision of the Clean Air Act, 42 U.S.C. 7604, which provides that, if the EPA Administrator is prosecuting an action to enforce compliance with an emission standard or limitation, then any person may intervene as a matter of right. Id., 7604(b(1(B. The term person includes a corporation or association, 42 U.S.C. 7602(e, and thus includes a non-profit public benefit corporation such as Sierra Club. Emission standard or limitation under the chapter is defined broadly to include 13 Lipton, Eric. Energy Firms in Secretive Alliance with Attorneys General. The New York Times 06 Dec. 2014: www.nytimes.com. 5
Case: 4:11-cv-00077-RWS Doc. #: 859 Filed: 02/15/17 Page: 6 of 14 PageID #: 48522 (4 any other standard, limitation, or schedule established under any permit issued pursuant to subchapter V of this chapter or under any applicable State implementation plan approved by the Administrator, any permit term or condition, and any requirement to obtain a permit as a condition of operations. Id., 7604(f(4. Thus, emission standard or limitation includes any standard or limitation established under a Title V permit or a State Implementation Plan ( SIP. Here, the Court has already found that Ameren violated the PSD, Title V, and its operating permit. Thus, Sierra Club has an unconditional right to intervene pursuant to Section 304(b(1(B of the Clean Air Act. United States v. Duke Energy Corp., 171 F.Supp.2d 560 (M.D.N.C. 2001 (granting intervention of right under Fed.R.Civ.P. 24(a(1 to environmental groups in PSD action brought by United States because Section 304(b(1(B provides unconditional right to intervene. 14 14 Because the Clean Air Act grants an unconditional right to intervene, Rule 24(a(1 applies and it is unnecessary for Sierra Club to satisfy the demonstration required by intervention of right under Rule 24(a(2. Duke Energy Corp., 171 F.Supp.2d at 565 n. 1. However, Sierra Club could make this showing as well if necessary. Under Rule 24(a(2, the court must permit anyone to intervene who claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant s ability to protect its interest, unless existing parties adequately protect the interest. For the reasons described in this memorandum, Sierra Club meets the requirements of 24(a(2 because: (1 Sierra Club and its members who live, work, and recreate in the vicinity of the Rush Island plant have an interest in the plant s compliance with the Clean Air Act; (2 resolution of the underlying lawsuit may as a practical matter impair or impede Sierra Club s ability to protect that interest; and (3 there is a significant likelihood that Sierra Club s interests will no longer be protected by the United States. Mille Lacs Band of Chippewa Indians v. State of Minn., 989 F.2d 994, 100-01 (8th Cir. 1993 (counties and landowners permitted to intervene as of right under Rule 24(a(2 because they met the required minimal burden of showing their local and individual interests were not adequately protected by the State of Minnesota; Mausolf v. Babbitt, 85 F.3d 1295, 1302 (8th Cir. 1996 (conservation groups seeking to preserve wilderness nature of national park had requisite interest in lawsuit seeking to undo snowmobiling restrictions. 6
Case: 4:11-cv-00077-RWS Doc. #: 859 Filed: 02/15/17 Page: 7 of 14 PageID #: 48523 B. Sierra Club s Motion to Intervene is Timely. Moreover, Sierra Club moved promptly to intervene once it became apparent that its interests may not be adequately protected by the United States. Whether a motion to intervene is timely is determined by considering all the circumstances of the case. No ironclad rules govern this determination. Mille Lacs Band of Chippewa Indians v. State of Minn., 989 F.2d 994, 998 (8th Cir. 1993 (internal citation omitted; United States v. Ritchie Special Credit Investments, Ltd., 620 F.3d 824, 832 (8th Cir. 2010 ( Timeliness is to be determined from all the circumstances (quoting NAACP v. New York, 413 U.S. 345, 365-66 (1973. Relevant considerations include: how far the litigation had progressed at the time of the motion for intervention, the prospective intervenor s prior knowledge of the pending action, the reason for the delay in seeking intervention, and the likelihood of prejudice to the parties in the action. Arrow v. Gambler s Supply, Inc., 55 F.3d 407, 409 (8th Cir. 1995. These factors must be analyzed on a case-by-case basis, based on the particular facts and circumstances. 1. Intervention is warranted by all the circumstances of the case. The first three factors to be considered the stage of the litigation, Sierra Club s knowledge of the action, and its reasons for intervening at the current juncture are interrelated and are therefore addressed together. The stage of the litigation is not solely dispositive, Ritchie, 620 F.3d at 832 (quoting NAACP v. New York, 413 U.S. at 365-66. Indeed, intervention may be permitted even after a case has progressed for a very long time. For example, in Winbush v. State of Iowa, 66 F.3d 1471,1479 (8th Cir. 1995, the district court properly permitted intervention by 21 individuals ten years after the complaint was filed, 7
Case: 4:11-cv-00077-RWS Doc. #: 859 Filed: 02/15/17 Page: 8 of 14 PageID #: 48524 and after a bench trial, because intervention occurred at a juncture in the litigation when defendants incurred minimal prejudice. Likewise, the Supreme Court in United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977, held that intervention five years after the litigation commenced was timely because, as soon as it became clear to the respondent that the interests of the unnamed class members would no longer be protected by the named class representations, she promptly moved to intervene to protect those interests. Id. at 394. As our Court of Appeals noted in Kozak v. Wells, [t]here are even occasions where intervention is proper after judgment. 278 F.2d 104, 109 (8th Cir. 1960 (citing cases. Sierra Club s decision to intervene now, rather than earlier, is reasonable under the circumstances. Sierra Club was aware of the lawsuit and considered intervening when it was filed in 2011. However, Sierra Club chose not to intervene at that time because it determined that its interests were being adequately protected by the United States. In light of public statements and actions of the new Administration officials, Sierra Club is promptly seeking intervention to ensure that its interests are adequately protected. The Supreme Court s holding in United Airlines indicates that the district court should consider not only the date on which a potential intervenor first learned of the litigation but also the date when it became clear that the intervenor s interests would no longer be protected and whether it then promptly moved to intervene to protect those interests. 432 U.S. at 394. See also WaterLegacy v. U.S. E.PA., 300 F.R.D. 332, 343-344 (D. Minn. 2014 (in finding intervention timely, district court determined that intervenor was aware of litigation when it was 8
Case: 4:11-cv-00077-RWS Doc. #: 859 Filed: 02/15/17 Page: 9 of 14 PageID #: 48525 filed, but did not have a reason to know that its interests were not being represented by the EPA until one year later whereupon it filed a motion to intervene. 15 Here, Sierra Club did not act out of neglect or a lack of diligence. Rather, Sierra Club made a reasoned decision to intervene, and acted promptly on it, once it became apparent that its interests were jeopardized. Nor is Sierra Club s decision to intervene based upon a routine change of Administrations. The President has vowed to dismantle the EPA, and his nominee to helm the EPA has sued that agency multiple times to prevent enforcement of federal environmental regulations. Further, all of the circumstances to be considered by the Court should include the Court s recent finding of liability. Given the Court s determination that Ameren has violated the Clean Air Act, those Sierra Club members who live, work, and recreate near the Rush Island plant have a heightened interest in a prompt and fair remedy to address those violations an interest that may not be pursued by the United States. This factor further supports a finding that Sierra Club s motion to intervene is timely, and filed at an appropriate time. 2. There is no likelihood of prejudice caused by the timing of Sierra Club s motion. The timing of Sierra Club s motion to intervene causes no likelihood of prejudice to the parties, Arrow, 55 F.3d at 409, and will not inconvenience the Court. In fact, with the liability phase completed, and the parties at the starting gate of the remedy phase, now is the appropriate time for intervention. 15 The Fifth Circuit, observing that [c]ourts should discourage premature intervention that wastes judicial resources, does not consider the date on which the potential intervenor became aware of the lawsuit and instead focuses on the speed with which the would-be intervenor acted when it became aware that its interests would no longer be protected by the original parties. Sierra Club v. Espy, 18 F.3d 1202, 1206 (5th Cir. 1994 (permitting industry groups to intervene in environmental action (citing Stallworth v. Monsanto Co., 558 F.2d 257, 264 (5th Cir. 1977. 9
Case: 4:11-cv-00077-RWS Doc. #: 859 Filed: 02/15/17 Page: 10 of 14 PageID #: 48526 Our Court of Appeals has explained that a district court should only consider whether any prejudice stems from the delay in seeking intervention, not from the intervenor s presence in the lawsuit. Prejudice that results from the mere fact that a proposed intervenor opposes one s position and may be unwilling to settle always exists when a party with an adverse position seeks intervention.rule 24(a protects precisely this ability to intervene in litigation to protect one s interests. Mille Lacs, 989 F.2d at 999; United States v. Union Elec. Co., 64 F.3d 1152, 1159 (8th Cir. 1995 ( The question for determining the timeliness of the motion to intervene is whether existing parties may be prejudiced by the delay in moving to intervene, not whether the intervention itself will cause the nature, duration, or disposition of the lawsuit to change. Simply stated, Sierra Club s intervention would not delay the remedy phase since it has not yet begun. All parties, including Sierra Club, would embark upon the remedy phase together. Nor would Sierra Club s intervention delay any other proceedings in the case. This case thus resembles Winbush v. State of Iowa, 66 F.3d at 1479, in which the district court properly permitted individuals to intervene in an employment discrimination suit ten years after the complaint was filed, and following a bench trial, because intervention occurred at a juncture in the litigation when defendants incurred minimal prejudice. Moreover, Sierra Club is not attempting to reopen or re-litigate any issue that has already been decided during the liability phase. Sierra Club does not challenge the scope, terms, or appropriateness of this Court s January 23 Order, or any other ruling in the case. Nor is Sierra Club adding any new claims beyond those asserted in the United States most recent amended complaint. As described in the accompanying Complaint in Intervention, submitted pursuant to Fed. R. Civ. P. 24(c, Sierra Club adopts in their entirety the United States Claims for Relief set forth in the government s Third Amended Complaint. 10
Case: 4:11-cv-00077-RWS Doc. #: 859 Filed: 02/15/17 Page: 11 of 14 PageID #: 48527 Thus, no prejudice would result from granting Sierra Club s motion to intervene. Conversely, there would be prejudice to Sierra Club if it is not allowed to intervene, since the present case is the only available venue for Sierra Club to ensure that remedies are pursued for Ameren s Clean Air Act violations at Rush Island that further the interests of Sierra Club s members. C. Sierra Club Has Article III Standing. In addition to the Fed. R. Civ. P. 24(a requirements, prospective intervenors in our Circuit must establish Article III standing. Nat'l Parks Conservation Ass'n v. U.S. EPA, 759 F.3d 969, 974 (8th Cir. 2014. Sierra Club has standing because its members have suffered actual or threatened injury, these injuries are traceable to Ameren, and will likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992. [E]nvironmental plaintiffs adequately allege injury in fact [for standing purposes] when they aver 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. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC, Inc., 528 U.S. 167, 183 (2000 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972. Sierra Club members live, work, and recreate in and around Jefferson County, Missouri, including near and downwind from the Rush Island plant and, consequently, breathe, enjoy, and use the ambient air in those areas. Those members use and enjoyment of the air, their property, and recreational areas is impaired by pollution in excess of what it would be if Rush Island had not violated the Clean Air Act. Moreover, because sulfur dioxide pollution poses a health risk, Sierra Club members are concerned that exposure to sulfur dioxide from the Rush Island plant may increase the risk that they will suffer from respiratory, cardiac, and other diseases. Sierra Club and its members have concrete interests that Ameren s Clean Air Act violations threaten 11
Case: 4:11-cv-00077-RWS Doc. #: 859 Filed: 02/15/17 Page: 12 of 14 PageID #: 48528 directly, notably the cleanup of air pollution in areas where Sierra Club members live, work, and recreate in and around the Rush Island plant. Sierra Club and its members also have an interest in public participation in the decision making process that Ameren circumvented by failing to apply for the required permits to modify the plant. These injuries are directly traceable to Ameren. Moreover, an order of this Court enjoining Ameren from operating Rush Island except in accordance with the Clean Air Act will redress the injuries to Sierra Club s members because the result will be a reduction in sulfur dioxide pollution from Rush Island. Accordingly, Sierra Club meets its Article III standing burden, as its members have suffered an injury-in-fact that is fairly traceable to Rush Island s violations of the Act and redressable by this lawsuit. IV. CONCLUSION For the foregoing reasons, Sierra Club respectfully requests that its motion to intervene be granted. Date: February 15, 2017 Respectfully submitted, /s/ Benjamin Blustein Benjamin Blustein (pro hac vice motion pending MINER, BARNHILL & GALLAND, P.C. 325 N. LaSalle, Suite 350 Chicago, IL 60654 Tel: (312 751-1170 Fax: (312 751-0438 bblustein@lawmbg.com David Baltmanis (pro hac vice motion pending MINER, BARNHILL & GALLAND, P.C. 325 N. LaSalle, Suite 350 Chicago, IL 60654 Tel: (312 751-1170 Fax: (312 751-0438 dbaltmanis@lawmbg.com 12