January 01, 2016

In Brief

Theodore L. Garrett

Air quality

US v. Luminant Generating Co., No. 3:13-CV-3236-K, 2015 WL 5009378 (N.D. Tex. Aug. 21, 2015).
A federal district court dismissed five of six claims of prevention of significant deterioration (PSD) violation against Luminant, operator of a Texas power plant, for modifying generating units between 2005 and 2008 without the required permits and without installing best available control technology (BACT) pollution controls. The court rejected the government’s argument that violations of preconstruction requirements are ongoing, and held that the “violations were complete when modification [of the plant] began.” Because the five claims for construction that began between 2005 and 2008 accrued more than five years before the suit was filed in 2013, the court held that these claims were barred by the statute of limitations. The court also denied the government’s request for injunctive relief, holding that because the government’s legal claims are barred by the statute of limitations, “its claims for equitable relief are also barred under the concurrent remedies doctrine.” The court also dismissed two Title V claims for allegedly failing to secure amendments to its permit and to submit an accurate and complete application because it does not include PSD requirements. The court held that: “[f]ailure to amend a Title V permit or the submission of an incomplete permit application is not actionable in an enforcement suit under the Clean Air Act.”

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