On July 8, 2013, the Seventh Circuit Court of Appeals affirmed a 2011 Illinois District Court decision and held that a failure to obtain a Prevention of Significant Deterioration (PSD) construction permit is not a continuing violation, and therefore any legal claim that a facility modification requires a PSD permit must be brought within five years of the commencement of construction, or it is barred by the statute of limitations (United States v. Midwest Generation LLC, 7th Cir., No. 12-1026 and No. 12-1051 7/8/13). This decision will be a significant blow to EPA and environmental groups' efforts to prosecute PSD claims for modifications that occurred more than five years ago.
...This decision is important for at least four significant reasons. First, this decision has the potential to significantly reduce, and in some cases, perhaps completely eliminate, legacy PSD enforcement liability associated with older boilers and other emission sources. Second, it significantly undermines EPA's approach to a national PSD enforcement initiative, which has routinely included significant "look-backs" to reevaluate historic projects that were allegedly constructed without PSD permits. Third, and of importance in Wisconsin, this decision can be cited as precedent to reverse Judge Crabb's decision in Sierra Club v. Dairyland Power Cooperative, CA No. 10-cv-303-bbc, 2010WL 4294622 (W.D. Wisc. Oct. 21, 2010) that a failure to obtain a PSD permit is an ongoing violation. And finally, this decision affirms previous decisions from the Eighth and Eleventh Circuits, which both previously held that the failure to obtain a PSD permit is a one-time violation.
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