ELR Citation: ELR 20213
No(s). 09-2862 (8th Cir. Aug 12, 2010)

The Eighth Circuit upheld a lower court decision dismissing an environmental group's CAA citizen suit against a coal-fired power plant for failing to obtain permits for a series of modifications to the plant and exceeding applicable emission limits. Because the last of the modifications at issue was done in 2001 and the group did not file suit until 2008, its prevention of signification deterioration (PSD) civil penalty claims are barred by the five-year statute of limitations. The group argued that the CAA and its regulations impose ongoing operational requirements, but the CAA and its regulations prohibit only construction or modification of a facility without a PSD permit. Nothing in the statute gives any indication that the CAA imposes ongoing operational conditions under the PSD program. The group also argued that the applicable regulations impose an ongoing duty to employ best achievable control technology (BACT) regardless of whether a facility obtained a PSD permit before construction or modification. But the command to apply BACT is not a freestanding requirement. Rather, it is tied specifically to the construction process.