BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ILLINOIS ENVIRONMENTAL PROTECTION )
AGENCY,
)
Complainant,
v.
AMEREN ENERGY GENERATING
COMPANY, AMEREN
CORPORATION, and
JERRY SIMPSON,
)
)
)
)
)
)
)
)
)
)
AC 09-49
(Administrative Citation)
(IEPA
No.1 03-09-AC)
Respondents.
TO:
John Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100 West Randolph
Chicago, Illinois
60601
NOTICE OF FILING
Michelle Ryan
Illinois Environmental Protection Agency
Assistant Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
PLEASE TAKE
NOTICE that I have electronically filed with the Office of the Clerk of the
Pollution Control Board,
MOTION TO DISMISS RESPONDENTS AND SUBSTITUTE
PARTIES
AND APPEARANCE,
copies of which are herewith served upon you.
Dated: June
29,2009
Kathryn M. Long
SCHIFF
HARDIN LLP
One Westminster Place
Lake Forest, Illinois
60045
(847) 295-4324
Email: klong@schiffhardin.com
Ameren Energy Generating Company, Ameren
Corporation and Jerry Simpson
Kathryn
~Ju~
M. L g
Electronic Filing - Received, Clerk's Office, June 29, 2009
CERTIFICATE OF SERVICE
I, the undersigned, certifY that on this 29
th
day of June, 2009, I have served electronically
the attached
MOTION TO DISMISS RESPONDENTS AND SUBSTITUTE PARTIES AND
APPEARANCE,
upon the following persons:
John Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite
11-500
100 West Randolph
Chicago, Illinois
60601
therriauj@ipcb.state.il.us
June 29, 2009
Kathryn M. Long
SCHIFF HARDIN LLP
One Westminster Place
Lake Forest, Illinois 60045
(847) 295-4324
Email: klong@schiffhardin.com
Michelle Ryan
Illinois Environmental Protection Agency
Assistant Counsel
1021 North Grand Avenue, East
P.O.Box 19276
Springfield, Illinois 62794-9276
Kathryn
M~
Long
7
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ILLINOIS ENVIRONMENTAL PROTECTION )
AGENCY,
)
Complainant,
v.
AMEREN ENERGY GENERATING
COMPANY, AMEREN CORPORATION and
JERRY SIMPSON,
Respondents.
)
)
)
)
)
)
)
)
)
)
APPEARANCE
AC 09-49
(Administrative Citation)
(IEPA No. 103-09-AC)
I, Kathryn M. Long, hereby file my appearance in this proceeding, on behalf of Ameren
Energy Generating Company, Ameren Corporation and Jerry Simpson.
Kathryn M. Long 1
Kathryn M. Long
SCHIFF HARDIN LLP
One Westminster Place
Lake Forest, Illinois 60045
(847) 295-4324
klong@schiffhardin.com
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Complainant,
v.
AMEREN ENERGY GENERATING
COMPANY, AMEREN
CORPORATION, and
JERRY
SIMPSON,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
AC 09-49
(Administrative Citation)
(IEPA No. 103-09-AC)
MOTION TO DISMISS RESPONDENTS AND SUBSTITUTE PARTIES
Respondents Arneren Corporation, Arneren Energy Generating Company and Jerry
Simpson, by and through their attorneys Schiff Hardin, LLP, move to dismiss themselves as
parties
to this proceeding, substitute new parties and, in support, state as follows:
I. Introduction
The Complainant has misidentified the proper parties to this matter. Respondents
Ameren Corporation, Arneren Energy Generating Company (AEG) and Jerry Simpson should be
dismissed
as parties to this proceeding because the administrative citation does not allege that the
named parties actively participated in or were personally involved with the acts resulting in
liability. The allegations in the administrative citation improperly name Arneren Corporation,
AEG and Mr. Simpson as parties and are insufficient
to establish a cause of action against them.
The proper respondent in this matter
is ArnerenEnergy Resources Generating Company (AERG)
which
is a subsidiary of Central Illinois light Company (CILCO), Inc. Both AERG and ClLCO
are subsidiaries of Ameren Corporation. AERG operates the Duck Creek Power Station, the
facility
at issue, on behalf of ClLCO. Furthermore, with the proposed substitution of parties,
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Ameren Corporation, Mr. Simpson, an officer of a variety of Ameren-affiliated companies, and
AEG are not necessary parties for the Board's complete determination of these proceedings.
II. Standard of Review
In rendering a decision on a motion to dismiss, the Illinois Pollution Control Board must
take all well pled facts contained in the pleading as true and all inferences from them must be
drawn in favor
of the nonmovant. People v. Skokie Valley Asphalt, Co., Inc., PCB 96-98 slip
op. at 6 (Jun. 5,2003); People v. Stein Steel Mills Services, Inc., PCB 02-01, (Nov. 15,2001).
III. Background
AERG is the operator of a facility located at 17751 North Ci1co Road, Canton, Fulton
County, Illinois (the
"Duck Creek Facility"). CILCO is the owner of the Duck Creek Facility.
Ameren Corporation a holding company which is the parent
of a number of entities that operate
regulated utilities and non-rate regulated generation businesses in Illinois. Mr. Simpson is an
officer
of a number of Ameren-affiliated companies, including AERG and AEG, and as such is
responsible for a variety
of administrative and executive responsibilities. However, Mr. Simpson
does not have personal knowledge or responsibility for the day-to-day operations
of the Duck
Creek Facility.
In addition to the power station, AERG operates ancillary facilities at the site
including an ash pond and landfill both duly permitted by the Illinois Environmental
Protection
Agency.
In February 2007, in accordance with Illinois Environmental Protection Agency
requirements, AERG initiated the installation
of new pollution control equipment at its power
generating plant.
Pursuant to the requirements of 35 Ill. Adm. Code 225.233(e)(3) (Amendments
to 35 Ill. Adm. Code 225: Control of Emissions from Large Combustion Sources (Mercury
Monitoring),
R09-10 (Jun. 18, 2009)
(pending publication in the Illinois Register)),
Ameren
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must have the Duck Creek scrubber in operation by 2010 in order to comply with Illinois'
mercury regulations.
In
connection with the installation of the new scrubbers, AERG planned to
construct a landfill to handle the coal combustion byproduct
("CCB") from the power generating
plant in place of the ash ponds. Ameren and the Agency have been in discussion for years
regarding environmental conditions and the proper closure
of the ash ponds. NPDES permits to
operate the ash ponds expire in July
2010 and the Agency has indicated that such permits may
not be renewed. Ameren Services Company, which provides a variety of administrative and
business services for the Ameren entities including environmental permitting, submitted an
initial construction permit application to develop the new landfill to the Illinois Environmental
Protection Agency on May 18,
2005. The landfill is intended to replace the ash ponds as a
repository for coal combustion byproduct following the installation
of the scrubber systems.
AERG proceeded to design and construct the landfill in accordance with a construction permit
issued by the Agency.
Despite
AERG's diligence and cooperation with Illinois Environmental Protection
Agency requests, four years later, Illinois Environmental Protection Agency had still not issued a
permit to AERG to operate the new landfill.
On March 6, 2009, Ameren notified Illinois
Environmental Protection Agency that the Duck Creek scrubber replacement project was nearing
completion and that, upon completion, coal combustion waste handling processes at the plant
will change, requiring AERG to change its management
of CCB. Ameren advised Illinois
Environmental Protection Agency that it would like to begin utilizing the new landfill, for which
the design and construction standards had already been approved and implemented.
On March 10, 2009, Steve Nightingale of Illinois Environmental Protection Agency
informed Ameren he requested that
AERG's permit be given top priority and hoped that a permit
would be issued shortly. Subsequently, AERG began to utilize the new landfill, believing that
to be environmentally preferable to temporarily stacking CCB on the ground or in the ash ponds,
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a source of groundwater impacts. Accordingly, AERG began stacking ash within a small portion
of the landfill, the facility designed and constructed for such purposes. On April 9, 2009, Robert
J. Wagner of Illinois Environmental Protection Agency conducted an inspection of the Duck
Creek Facility and noted that AERG had placed CCB into the landfill prior
to the issuance of the
operating permit.
On May 27, 2009, Complainant, Illinois Environmental Protection Agency, filed the
above-captioned administrative citation.
The administrative citation named Ameren
Corporation,
as owner, AEG, as operator, and Mr. Jerry Simpson, as "Chief Operator," as
respondents. The administrative citation alleged three violations
of Section 21 (0) of the Act: (1)
conducting a sanitary landfill without the necessary permits; (2) conducting a sanitary landfill
which resulted in deposition
of refuse in an unpermitted portion of the landfill; and (3)
conducting a sanitary landfill in a manner resulting in the failure to submit reports required
by
permits or Board regulations. 415 ILCS 5/21(0)(7), (9), (11) (2007).
IV. Discussion
Ameren has no desire to needlessly prolong or engage in an extensive factual dispute as
to the circumstances giving rise to this matter. Rather, Ameren's objective is to have the
administrative citation directed to the proper entity and
to explain the circumstances under which
the citation was issued. Nevertheless, the Agency has failed to meet its burden
to show that
Respondents Ameren Corporation, AEG and Mr. Simpson had personal involvement or active
participation in the acts resulting in liability. People
v. Tang, 346 Ill.App3d 277, 289, 805
N.E.2d 243, 253-54 (1 st Dist. 2004). The Board should dismiss AEG, Ameren Corporation and
Mr. Simpson
as respondents in this proceeding. AERG, not AEG, is the operator of the Duck
Creek Facility and should be named in AEG's place. As the mere parent
of AERG, Ameren
Corporation had no control over the day to day operations
of the Duck Creek Facility. Likewise,
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Mr. Simpson had no personal involvement or active participation in the day to day operations of
the Duck Creek Facility. Accordingly, the Agency has failed to meet its burden under Illinois
law to allege facts establishing that Ameren Corporation, AEG, or Mr. Simpson had personal
involvement or active participation in the acts resulting in liability. The administrative citation
should instead, name AERG as the proper respondent.
The Board has adopted the principle established by Illinois case law that,
"in order to
state a claim for personal liability against a corporate officer under the Act, a plaintiff must do
more than allege corporate wrongdoing." People v. Community Landfill Corporation,
et. ai,
PCB 97-193, PCB 04-207 (consol.) slip op. at 7 (Nov. 4, 2004) (citing Tang, 805 N.E.2d at 253).
Personal involvement or active participation in the management
of a corporation is not enough.
Rather, a plaintiff must demonstrate that a corporate officer had personal involvement or active
participation
in the acts resulting in liability.
Id. (citing Tang, 805 N.E.2d at 253-54 (emphasis
added)). In the case
at hand, the administrative citation does not contain any allegations that
Mr.
Simpson was personally involved or actively participated in the acts resulting in liability.
Likewise, while the administrative citation refers to Robert Wagner's inspection report
as listing
specific acts and omissions in support
of the violations alleged against the named parties, the
inspection report does not state that
Mr. Simpson had any specific involvement in the alleged
violation.
In Community Landfill, the Board found that allegations that corporate officers signed
and submitted permit applications and reports related
to the landfill at issue were sufficient to
state a claim that the individual corporate officers were personally involved and actively
participated in the acts resulting in liability. Community Landfill,
PCB 04-207, slip op. at 7.
However, unlike Community Landfill, the administrative citation in this case does not allege that
Mr. Simpson was personally involved or actively participated in any acts resulting in liability.
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As for Ameren Corporation, the United States Supreme Court has held that "a parent
corporation that actively participated in, and exercised control over, the operations
of a
subsidiary may [not], without more, be held liable as an operator
of a polluting facility owned or
operated by the subsidiary [unless the corporate veil may be pierced]." United States v.
Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 1881 (1998). However, the administrative citation
does not allege that Ameren Corporation has misused the corporate form to accomplish any
wrongful purposes on its own behalf which could serve as a basis for piercing the corporate veil
or that Ameren Corporation directly participated in the operation of the Duck Creek Facility.
See id., 524 U.S. at 62, 66, 118 S.Ct. at 1885, 1887. Therefore, the administrative citation fails
to allege sufficient facts to establish a cause
of action against Ameren Corporation.
The same analysis that applies
to Ameren Corporation also applies in the case of AEG.
Although AEG is an affiliate
of AERG, it is not the owner or operator of the Duck Creek
Facility. Because the administrative citation does not allege any facts which could serve as a
basis for piercing the corporate veil or that AEG directly participated in the operation
of the
Duck Creek Facility, the administrative citation fails
to allege sufficient facts to establish a cause
of action against AEG. See id.
It
is AERG, not AEG, Ameren Corporation or Mr. Simpson, that manages the day to day
operations
of the Duck Creek facility. There are no specific allegations in the administrative
citation or the inspection report that show Ameren Corporation, AEG, or Mr. Simpson actively
participated in the alleged violations. Therefore, the Agency has failed
to meet its burden to
show that the named respondents could be liable for the alleged violation.
V. Conclusion
AERG has discontinued the conduct that is the subject matter of this Administrative
Citation
is in ongoing discussions with the Agency as to the issuance of a permit to operate the
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duly constructed and designed landfill. Moreover, in order to fully and completely resolve this
matter, AERG has submitted the penalty requested by the Agency herein. However, the
allegations in the administrative citation improperly name AEG, Ameren Corporation and Mr.
Simpson
as parties and are insufficient to establish a cause of action against them. None of the
respondents
is alleged to have actively participated in or been personally involved in the acts
resulting in liability nor has any party been involved with the day-to-day operations
at the Duck
Creek Facility.
WHEREFORE, Respondents Ameren Corporation, Ameren Energy Generating Company
and Mr. Jerry Simpson respectfully request that the Board grant their motion to dismiss with
prejudice and that AmerenEnergy Resources Generating Company be substituted as the proper
party in this matter.
Dated: June 29,
2009
Kathryn M. Long
SCHIFF HARDIN LLP
One Westminster Place
Lake Forest, Illinois 60045
(847) 295-4324
Respectfully submitted,
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