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Luminant Generation Sees Several NSR Claims Dismissed
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On August 21, the U.S. District Court for the Northern District of Texas sided with Luminant Generation Co. LLC and dismissed a number of claims in a Clean Air Act violation lawsuit filed by the Justice Department (DOJ).  Judge Ed Kinkeade dismissed five of the Clean Air Act violation claims against Luminant and Big Brown Power Co. LLC, because they were time-barred by a five-year statute of limitations.  Two other claims were dismissed, because they failed to state a claim.  Only two claims remain before the court.

 

The DOJ filed the lawsuit in the U.S. District Court for the Northern District of Texas on Aug. 16, 2013, alleging Luminant and Big Brown Power violated new source review (NSR) and prevention of significant deterioration (PSD) provisions of the Clean Air Act when it modified the Big Brown and Martin Lake generating plants in East Texas.  The DOJ alleged six counts of PSD violations, two counts of Title V violations and one count of violation of Section 114 of the Clean Air Act, which gives EPA broad authority to request information. 

 

The modifications to the plants occurred between 2005 and 2009, according to background information in the order.  The plants were originally grandfathered under NSR, but that status ended when the plants were modified, and the defendants were required to comply with the NSR program, the DOJ said.  The department added that the defendants continue to violate the Clean Air Act by operating units without required permits and controls and therefore a statute of limitation doesn't apply.

 

Because the Clean Air Act does not establish a limitations period, legal claims brought under the law are subject to a general five-year statute of limitations, the order said.  A claim under the Clean Air Act first accrues on the date that a violation first occurs and that is the date used to determine the five-year limit.  The court sided with the companies that the violations cannot be considered ongoing under the Clean Air Act and therefore the statute of limitations applies.  Claims one through three and claims five and six occurred between February 2005 and March 2008.  Those claims accrued more than five years before the lawsuit was filed and were dismissed with prejudice.  Claim four occurred on March 1, 2009, within the five-year time frame, the order said.

 

The court also sided with the companies and dismissed two Title V claims.  Title V of the Clean Air Act requires major sources of emissions to obtain an operating permit that consolidates all of the law's requirements applicable to a facility into a single document.  Title V permits are a required part of state implementation plans.  A Title V violation is one in which a facility didn't get the permit or violated the terms of the permit.

 

In its complaint, the DOJ said that the companies did not amend their Title V permit to include all of the Clean Air Act's applicable requirements, including the obligation to secure PSD permits.  But the court sided with Luminant and Big Brown Power, stating that the DOJ wasn't alleging any violations of the terms of the permits but that the permits themselves weren't proper.  The two Title V claims were therefore dismissed with prejudice, because they failed to state a claim, the order said.  The two claims that remain before the court include one PSD violation and one count of violation of Section 114 of the Clean Air Act. 
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