ST. LOUIS — A federal judge, exasperated by the lack of progress in identifying a way for the region’s power company to atone for more than a decade of illegal air pollution, said this week he’s sending the case to mediation.
St. Louis-based electric utility Ameren and the U.S. Department of Justice are eyeing a solution: To pay for tons of sulfur dioxide pumped into the air from the coal-fired Rush Island power plant in Jefferson County, the company could purchase electric buses for area schools and high-grade air filters for area homes.
But they don’t agree on how many.
Federal Judge Rodney Sippel made clear this week he’s tired of the gridlock.
“What are you doing?” Sippel asked Ameren’s lawyers on Thursday. “You’ve been on notice for seven years.”
The U.S. Department of Justice sued Ameren in 2011, alleging Ameren had illegally upgraded Rush Island without installing the required air pollution controls. The Sierra Club intervened alongside the U.S., and, in 2017, Ameren was found guilty of a chain of Clean Air Act violations.
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Parties in the case now need to pick a mediator. Lawyers for Ameren agreed that mediation is the best option to accelerate negotiations.
“You can be in the same room and talk,” said Ron Safer, a lawyer representing Ameren in the case. “It’s much more efficient.”
But the sides remain far apart on the number of electric buses or air filters Ameren should provide, with dueling proposals that are perhaps in the “same ballpark, but maybe not the same game yet,” Elias Quinn, a senior attorney for the DOJ, said at Thursday’s hearing.
The company’s legal wrongdoing at Rush Island traces back to decisions made almost two decades ago.
In 2007 and again in 2010, Ameren rebuilt the plant’s generators without obtaining the necessary permits, just as the generators were reaching the end of their intended lifespan — significantly increasing their longevity and the amount of power and pollution they produced.
That led to an “impermissible” release of more than 250,000 tons of sulfur dioxide, and to “a significant increased risk of disease and death” in downwind communities, Sippel said in court documents.
Ameren now aims to retire the plant in October — an action and time range it proposed after being confronted with a court-ordered alternative to install expensive but widely adopted pollution controls, called scrubbers, at the facility.
Sippel had also originally sought to have Ameren offset Rush Island’s illegal pollution totals by reducing an equal amount of sulfur dioxide emissions from its Labadie Energy Center in Franklin County — the largest coal plant in Missouri, which also lacks scrubbers and emits about 40% more SO2 than the nation’s next closest coal plant.
An appeals court scrapped that element of Sippel’s order, saying that “the government never provided notice of or alleged” that Labadie violated the Clean Air Act.
But the Environmental Protection Agency did issue similar notices of violation to all of Ameren’s coal plants for unpermitted “major modifications that caused a significant net emissions increase” — including at Labadie in at least 2010 and 2011.
The EPA has not clarified why only the Rush Island plant has faced a lawsuit about the matter.
“It was a perfect remedy because it was the same pollution in the same region,” Sippel said at Thursday’s hearing. “But that’s off the table.”
The last two years have focused on negotiations seeking “an equitable remedy” for Rush Island’s pollution. Legal filings from recent months have focused on solutions, such as the investments in electric buses and air filters.
Entering Thursday’s hearing, plaintiffs in the case proposed that Ameren distribute 150,000 high-efficiency particulate air filtration devices in the St. Louis area, and provide 150 electric buses and charging equipment to regional schools.
Ameren has balked at various calls for remedies, throughout recent years. Lately, though, the company has proposed purchasing 20 electric school buses and charging equipment, along with 97,000 air filters for customers, while arguing that its plans to retire Rush Island earlier than its former 2039 target — and fully cutting off its emissions — should also count as part of a remedy.
Sippel called Ameren’s position “unfounded.”
“Ameren’s position that an equitable remedy is not available for its unlawful pollution has already been…
Read More: Rush Island impasse tires judge; Ameren ordered to mediation