United States v. Midwest Generation, LLC
720 F.3d 644
| 7th Cir. | 2013Background
- Commonwealth Edison modified five coal-fired power plants between 1994–1999 that had been grandfathered from pre-1977 PSD permitting requirements. Plaintiffs assume those modifications required preconstruction permits under 42 U.S.C. §7475(a).
- Commonwealth Edison did not obtain the §7475 construction permits or install BACT; the plants were later sold to Midwest Generation. Plaintiffs are the United States and Illinois.
- Plaintiffs sued in 2009, more than five years after the last modification; the district court dismissed the §7475(a) claim as time-barred under the five-year statute of limitations, entering partial final judgment for appeal.
- Plaintiffs argued the failure to obtain a preconstruction permit is a continuing violation (or causes continuing injury), making the suit timely; defendants argued the violation was a discrete preconstruction violation that accrued when construction began.
- The court treated three meanings of "continuing violation": ongoing discrete violations, cumulative acts, and continuing injury from a completed violation, and analyzed which applied to §7475(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to obtain a §7475 preconstruction permit constitutes a continuing violation so the claim is timely | Each day the plant operates without a §7475 permit is a new violation | §7475 is a preconstruction requirement; violation completes when construction commences without a permit | Held against plaintiffs; violation accrued at construction, statute of limitations bars suit |
| Whether ongoing operation without BACT makes §7475 a continuing operational obligation | §7475(a)(4) makes BACT an ongoing obligation (“subject to” BACT) | §7475(a)(4) prescribes conditions precedent to construction, not operational requirements | Held BACT under §7475 is a preconstruction condition; failure to obtain permit is not a daily operational violation |
| Whether continuing injury from past failure to install BACT tolls or restarts limitations | Continuing emissions are ongoing injury tied to past failure, so claim remains timely | Continuing effects of a time-barred violation are not independently wrongful to restart limitations | Held continuing-injury argument fails; enduring consequences do not overcome statute of limitations |
| Whether state-law provisions (e.g., 415 ILCS 5/9.1(d)(2)) convert past §7475 violations into current unlawful operation | State statute’s “or operate” language makes current operation unlawful due to prior §7475 breach | §7475 addresses preconstruction; federal noncompliance in the past does not automatically create a present federal violation under §7475 | Held claim under §5/9.1(d)(2) based solely on past §7475 violations is not resolved here; derivative federal claim fails as pleaded |
Key Cases Cited
- Environmental Defense v. Duke Energy Corp., 549 U.S. 561 (discusses scope of modifications triggering PSD/permit requirements)
- Gabelli v. SEC, 133 S. Ct. 1216 (statute of limitations for government enforcement begins at accrual, not discovery)
- Sierra Club v. Otter Tail Power Co., 615 F.3d 1008 (operating a facility post-construction without a permit is not a new §7475 violation)
- National Parks & Conservation Ass'n v. Tennessee Valley Auth., 502 F.3d 1316 (similar holding: operation post-construction is not a fresh §7475 violation)
- United Air Lines, Inc. v. McMann, 434 U.S. 192 (enduring consequences of time-barred acts are not independently wrongful)
- Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (continuing effects do not reset statute of limitations)
- United States v. Cinergy Corp., 458 F.3d 705 (7th Cir. discussion of modification/permit issues)
- United States v. Cinergy Corp., 623 F.3d 455 (further 7th Cir. analysis on PSD/permit questions)