ELR Citation: ELR 20081
No(s). 09-5277 (N.D. Ill. Mar 9, 2010)

A district court granted a motion to dismiss certain counts related to the PSD provisions of the CAA against an owner and operator of six coal-fired power plants. Plaintiffs, the United States and the state of Illinois, asserted, among other things, that the owner/operator violated, and continues to violate, CAA §165 and the implementing PSD regulations by failing to obtain a PSD permit prior to the operation of major modifications undertaken by the prior owner. Based on the plain meaning of CAA §165, the implementing regulations, and prior cases, the court held that CAA §165 prohibits constructing or modifying, but not operating, a source without a permit. Moreover, plaintiffs’ PSD counts are time barred to the extent they seek monetary damages. As to equitable relief, plaintiffs have failed to state any basis for liability for those PSD counts related to the major modifications undertaken by the prior owner since the owner/operator did not own or operate the sources at issue when the alleged violations occurred. Plaintiffs are therefore not entitled to any relief—injunctive or otherwise—for these counts.