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EPA Seeks Rehearing Of Ruling Backing Five-Year Limit On Filing 'New Source Review' Suits

The Department of Justice, in a Sept. 3 filing on EPA's behalf, calls the panel's July 8 ruling a "flawed interpretation" of the air law's prevention of significant deterioration and new source review permit program.

According to InsideEPA.com, the Environmental Protection Agency is asking the full U.S. Court of Appeals for the 7th Circuit to rehear a three-judge panel ruling unanimously finding that the agency's Clean Air Act new source review, or NSR, permit enforcement program is subject to the five-year statute of limitations -- a ruling seen as significantly curtailing EPA's long-standing NSR enforcement initiative.

The Department of Justice, or DOJ, in a Sept. 3 filing on EPA's behalf, calls the panel's July 8 ruling a "flawed interpretation" of the air law's prevention of significant deterioration (PSD) and NSR permit program. DOJ warns if the ruling is allowed to stand it could allow plants that violated NSR to escape suits that could force them to install pollution controls. Relevant documents are available on InsideEPA.com. (Doc ID: 2445734)

The three judges in the 7th Circuit case United States of America, et al. v. Midwest Generation, et al., ruled that EPA's power to enforce NSR/PSD is limited to five years after an alleged violation occurred, rejecting EPA's claim that NSR/PSD obligations should be treated as ongoing (Inside EPA, July 12). The permitting program requires existing sources that undertake major modifications that boost emissions to install modern pollution controls.

Industry argued successfully to the 7th Circuit that NSR enforcement is time-barred by the five-year statute of limitations, and that EPA cannot enforce against violations alleged to have occurred more than five years ago.

Since the July 8 ruling, one other appellate court and at least one federal district court have issued similar decisions. The 3rd Circuit Aug. 21 in United States of America, et al. v EME Homer City cited the 7th Circuit's ruling when it sided with industry on the five-year limit (Inside EPA, Aug. 23). DOJ in its 7th Circuit petition for rehearing says the 3rd Circuit ruling was in error, suggesting it might also appeal that ruling or perhaps cite a circuit split in an effort to win Supreme Court review.

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