United States v. Eme Homer City Generation L.P.
823 F. Supp. 2d 274
W.D. Pa.2011Background
- This case involves alleged PSD and Title V violations at the Homer City coal-fired plant in Pennsylvania.
- Former Owners (NYSEC, PENELEC) owned the plant from 1968–1999; Current Owners (EME Homer City Gen, OLs) have operated since 1999.
- Former Owners undertook 1991, 1994, 1995, 1996 projects without PSD permits; PSD/BACT implications disputed.
- EPA NOVs issued 2008 and 2010; Plaintiffs allege PSD breaches and incomplete Title V application.
- Title V operating permit issued January 2004 (effective December 1, 2004); current owners contend PSD obligations were not applicable to them.
- Court dismisses PSD and Title V claims against all defendants and dismisses state-law nuisance claims as preempted; orders dismissal with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| PSD violations time-bar on civil penalties | U.S. contends Current Owners liable for ongoing PSD failures | Current Owners not involved in original PSD decisions; penalties time-barred | Penalties barred; PSD violations are not ongoing against Current Owners |
| Injunctive relief under PSD against Former Owners | Plaintiffs seek injunction to enforce PSD/BACT and remedy harms | PSD violations are past; injunction improper against Former Owners | Injunctive relief denied; PSD claims dismissed for Former Owners as time-barred and not properly actionable |
| Title V claims against Former Owners | Title V permits flawed due to PSD permit omissions; vendor liability | Title V claims cannot be based on PSD omissions; Former Owners not liable | Title V claims against Former Owners dismissed with prejudice; facially valid Title V permit issued to Current Owners |
| Title V claims against Current Owners—scope and incorporation | Title V incorporates PSD/BACT requirements | Title V does not incorporate PSD conditions; permit valid | Title V claims against Current Owners not time-barred; claims rejected as to incorporation and permit validity |
| State-law APCA/SIP and public nuisance claims | APCA/SIP parallels federal claims; nuisance claims viable | State claims duplicative or preempted by federal regime | State-law claims dismissed as duplicative/preempted; public nuisance claims dismissed |
Key Cases Cited
- Cinergy Corp., 458 F.3d 705 (6th Cir.2006) (BACT/PSD permitting issues under preconstruction requirements; case-by-case determinations)
- Midwest Generation, LLC, 694 F.Supp.2d 999 (N.D. Ill.2010) (PSD preconstruction permit requirements tied to permitting process; findings on liability)
- Otter Tail Power Co., 615 F.3d 1017 (8th Cir.2010) (BACT limits not ongoing absent PSD process; operating permits distinction)
- Niagara Mohawk Power Corp., 263 F.Supp.2d 650 (W.D.N.Y.2003) (PSD preconstruction requirement is not ongoing post-construction for after-the-fact owners)
- National Parks Conservation Ass’n, Inc. v. TVA, 502 F.3d 1316 (11th Cir.2007) (PSD ongoing obligations; not extending to after-the-fact challenges)
- United States v. AM General Corp., 34 F.3d 472 (7th Cir.1994) (collateral attack on facially valid Title V permit; limits)