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Sierra Club. v. Duke Energy Ind., Inc.

Citation: 40 ELR 20257
No. No. 1:08-cv-437, (S.D. Ind., 09/20/2010)

A district court held that an environmental group's claims against an electric company for violating PSD requirements before making major modifications to one of its plants are time barred, but it stayed final entry of the judgment pending the ruling of the Seventh Circuit in a similar case. PSD obligations are not ongoing. Rather, violations of the CAA's PSD requirements are discrete infractions governed by the five-year limitations period. If the company did violate the CAA by failing to obtain a PSD permit, apply best available control technology limits, or conduct a source impact analysis, any such violation was by law a one-time infraction that accrued at the time of construction or modification of the plant. Because each of the major modifications was commenced more than five years before the initiation of the instant lawsuit, the group's claims for civil remedies are barred by the applicable limitations period. In addition, the concurrent remedy doctrine bars the group's equitable claims brought on the same facts. And the group's allegations that the company violated the CAA's Title V program constitutes an impermissible collateral attack on the company's facially valid Title V permit. The court, therefore, granted summary judgment in favor of the company. However, it stayed entry of final judgment pending the ruling of the Seventh Circuit in United States v. Cinergy Corp., 397 F. Supp. 2d 1025 (S.D. Ind. 2005), appeal docketed, Nos. 09-3344 et al. (7th Cir. Sept. 21, 2009), as that appeal addresses the application of the statute of limitations to the plaintiff's claims that the defendant violated the PSD requirements of the CAA.