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United States v. EME Homer City Generation L.P.

ELR Citation: 41 ELR 20326
Nos. 2:11-cv-19, (W.D. Pa. , 10/12/2011) (McVerry, J.)

A district court dismissed the U.S. government's lawsuit against the current and former owners of a coal-fired power plant in Indiana County, Pennsylvania, for alleged CAA violations. The government alleged that the former owners undertook construction projects at the plant without having obtained the necessary PSD preconstruction permits. It also alleged that the current owners violated the PSD program by failing to implement best available control technology at units that had been improperly modified because the PSD program imposes ongoing obligations at modified facilities. But the alleged PSD violations constitute singular, separate failures by the former owners to obtain pre-construction permits, rather than ongoing failures to comply with whatever hypothetical conditions might have been imposed during the PSD permitting process. Because the projects at issue in this case occurred 15-20 years ago and no enforcement action was taken until 2008, the five-year limitations period has long since expired. Accordingly, the government may not recover civil penalties for the alleged PSD violations. Nor is the government entitled to injunctive relief. Although the five-year limitations period applicable to civil penalties does not place a time limit on the government's ability to obtain injunctive relief, the former owners' alleged PSD violations are wholly past violations rather than continuing ones. The court also rejected the government's claim that the current owners failed to obtain a proper or valid Title V operating permit for the plant. There is no way that the current owners could have known that the Title V application submitted by the former owners was flawed because no PSD violation was ever established, and the current owners cannot be held liable for the alleged deficiencies and omissions in the underlying application submitted by the former owners.