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

ELR Citation: 43 ELR 20194
Nos. 11-4406 et al., (3d Cir., 08/21/2013)

The Third Circuit affirmed a lower court decision dismissing 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 that took place 15-20 years earlier. 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 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. The court also rejected the government's claims against the current owners. CAA §165(a) unambiguously prohibits only constructing or modifying a facility without meeting PSD requirements; the current owners have done neither.