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United States v. Midwest Generation, LLC

ELR Citation: 43 ELR 20153
Nos. 12-1026, -1051, (7th Cir., 07/08/2013)

The Seventh Circuit held that the statute of limitations bars EPA's and Illinois' CAA suit against a power company for failing to obtain preconstruction permits and to use best available control technology (BACT) at five coal-fired power plants that were modified prior to it acquiring them in 1999. EPA and the state argued that the case is timely because the company's failure to obtain the preconstruction permit under CAA §165 is a continuing violation. But the violation was complete when the construction began without a permit, and case law supports this view. Also unavailing was their contention that a continuing injury from the company's failure to use BACT makes this suit timely. What the plants emit today is subject to ongoing regulation under rules other than §165. Today's emissions cannot be called unlawful just because of acts that occurred more than five years before the suit began. Once the statute of limitations expired, the company was entitled to proceed as if it possessed all required construction permits. The court, therefore, affirmed the lower court's dismissal.