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Appeals court affirms dismissal of New Source Review case


From the July 24, 2013 issue of Public Power Daily

Originally published July 24, 2013

By Robert Varela
Editorial Director
Ruling that the statute of limitations had run out, a federal appeals court affirmed the dismissal of suits over alleged violations of the Clean Air Act’s New Source Review provisions for modifications made at five coal-fired plants in the 1990s. The U.S. Court of Appeals for the 7th Circuit rejected the argument by the federal government and the state of Illinois that the failure of the plant owners to obtain permits represented a "continuing violation" that effectively reset the statute of limitations clock.

Nothing in the Clean Air Act "even hints at the possibility that a fresh violation occurs every day until the end of the universe if an owner that lacks a construction permit operates a completed facility," the court said in its July 7 decision in United States v. Midwest Generation. The statute of limitations "begins with the violation, not with a public agency's discovery of the violation."

The case involved five coal-fired plants that Commonwealth Edison modified between 1994 and 1999 without obtaining construction permits. Commonwealth Edison took the position that permits were not required and that it therefore was not obliged to install the best available control technology, the court said. This was a risky strategy, but no one sued until 2009, well after the five-year statute of limitations had ended, the court said. 

Commonwealth Edison later sold the plants to Midwest Generation, but "Midwest cannot be liable when its predecessor in interest would not have been liable had it owned the plants continuously," the court ruled.

While the government did not contend that the time was extended by delay in discovering the modifications, "no such argument would be tenable," the court said.

The court noted that two other appeals courts have reached similar conclusions on the issue of continuing violations, the 8th Circuit in 2010 in Sierra Club v. Otter Tail Power Co. and the 11th Circuit in a 2007 decision in National Parks and Conservation Association Inc. v. Tennessee Valley Authority.

"Today's emissions cannot be called unlawful just because of acts that occurred more than five years before the suit began," the 7th Circuit said in rejecting arguments of continuing injury from the failure to obtain a permit. "Once the statute of limitations expired, Commonwealth Edison was entitled to proceed as if it possessed all required construction permits."

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