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Last year, after a string of defeats for EPA in its NSR
enforcement initiative,
I suggested that the initiative was in trouble, but that EPA
was probably not yet ready to concede defeat. After the latest
blow, earlier this month, EPA has to be reconsidering. I assume
that EPA won't give up completely until it has lost everywhere
or the Supreme Court has weighed in, but the NSR initiative is
definitely on life support at this point.
EPA's damage claims were
time-barred by the general five-year statute of limitations.
EPA's injunctive relief claims
were barred, for two separate reasons:
First, because the Clean Air Act permits injunctive relief for
PSD/NSR claims prior to
construction, it impliedly precludes injunctive relief
after construction is
complete.
Second, because the concurrent remedy doctrine bars injunctive
relief where underlying legal claims are barred by the statute of
limitations.
EPA's Title V claims fail because
"the Clean Air Act does not authorize a collateral attack on a
facially valid, but allegedly improper, state permit."
It only adds insult to injury that EPA had another claim
dismissed, notwithstanding a tolling agreement, because the tolling
agreement applied only to violations alleged in a specific notice
of violation issued by EPA, and EPA later issued an
"amended" NOV, and sued under the amended NOV, without
ensuring that the tolling agreement was amended to cover the new
NOV as well.
Not a good day for EPA.
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