In US v Ameren Missouri, 2011 U.S. Dist. LEXIS 152426 (E.D.Mo. 1/27/12), the federal government alleged that the defendant had violated the Clean Air Act and the State Implementation Plan (SIP) when it performed major modifications for a coal-fired power plant without first undergoing new source review (NSR) for prevention of significant deterioriation (PSD).
EPA asserted that the modifications enabled units 1 and 2 at the Rush Island Plant to burn more coal per hour of operation, allowed the Units to operate for longer periods of time and release more SO2. EPA alleged that the plant should have obtained a PSD permit , did not undergo BACT analysis for SO2, did not install or operate BACT controls for SO2, failed to comply with BACT emissions limits for SO2 and operated the units after undergoing unpermitted major modifications.
The parties agreed that the five-year statute of limitations (SOL) set forth in 28 U.S.C. 2462 was applicable to the civil penalties sought by EPA for the 2001 and 2003 modification projects. EPA filed its action in 2011 but argued that the SOL did not apply because the violations were ongoing.
The Missouri SIP and the facility Title V permit prohibited the commencement of a major modification or beginning operation after a major modification. The court said the plain meaning of this language was that it was a violation to begin construction and operation without a permit but did not prohibit ongoing operation without a permit. Since the 2001 and 2003 alleged violations occurred more than five years before the complaint had been filed, the court dismissed EPA’s civil penalty claims for failure to comply with the PSD and SIP requirements as well as the Title V PSD requirements. For the same reasons, the court dismissed the claim for failing to obtain a BACT determination and operating without complying with BACT.