Yes, Virginia, NSR Really is a Preconstruction Permitting Program: Another NSR Enforcement Case Fails on Statute of Limitations Grounds

The trend of cases holding that the NSR provisions of the Clean Air Act constitute a one-time preconstruction review requirement got stronger earlier this month, as the decision in Sierra Club v. Oklahoma Gas and Electric Company dismissed claims by the Sierra Club related to facility modifications that occurred more than five years prior to entry of a tolling agreement between the parties.  The decision may not break any new ground, but it does help solidify some issues:

  • The statute of limitations begins to run when construction commences (“the last possible moment at which a preconstruction violation occurs is when the actual construction is commenced….”)
  • The “concurrent remedy” doctrine means that the statute of limitations applies to injunctive relief as well as damages

Sierra Club also brought claims alleging that OGEC violated its permit limits for opacity and particulate matter.  Those claims survived a motion to dismiss by OGEC premised on the argument that Sierra Club had not met federal pleading standards.  The relevant paragraph of the complaint provided as follows:

On numerous occasions, [OG&E] emitted air pollution from the stack of Muskogee Unit 6 in amounts that exceeded the limits on opacity and particulate matter (TSP) set fourth [sic] in Permit PSD-OK-57.

To the Court, this was more than sufficient.  “Even if Sierra Club’s Complaint was limited to Paragraph 61…, it would be sufficient … because it contained all of the facts necessary to support the claim.”  Basically, the Court left details about dates and times to the discovery process.

A split decision, but the NSR aspect is the more important issue.

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