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National Parks Conservation Ass'n v. Tennessee Valley Auth.

ELR Citation: 37 ELR 20056
Nos. No. 05-6329, (6th Cir., 03/02/2007)

The court reversed a lower court's grant of summary judgment in favor of the Tennessee Valley Authority (TVA) in a case brought by environmental groups claiming the agency shirked its duty to obtain appropriate pollution limitations at a power plant it operates in Tennessee. The TVA argued that the Clean Air Act (CAA) and Tennessee state implementation plan (SIP) only prohibit construction without a permit. Because the only construction at issue here took place in 1988, the statute of limitations for any violation premised upon that construction ran in 1993. The lower court agreed, holding that the five-year statute of limitations barred the groups' claims. But the groups alleged that the TVA failed to apply best available control technology (BACT) and failed to obtain a construction permit containing emissions limitations under the Tennessee SIP's prevention of significant deterioration provisions. Both causes of action manifest themselves anew each day the plant operates without BACT limits or in violation of the SIP. Because these subsequent and continuing failures are actionable under the CAA, the groups' claims for civil penalties are timely insofar as they related to violations that occurred within five years of the date they filed their initial complaint.