The NAM joined with 4 other business groups in support of a petition for rehearing of an adverse decision by the Sixth Circuit involving how far into the future the EPA or a citizen may challenge in court alleged violations of preconstruction permits under the Clean Air Act. On 8/14/07, the petition was denied.
The statute of limitations for CAA enforcement is 5 years. However, the appeals court ruled that every day a facility operates without the best available control technology constitutes a discrete violation. It also ruled that TVA has an obligation to get a construction permit even after the construction has been completed. A dissenting judge felt that the obligation to get a permit can only be violated once, like a carpenter's contract to repair a roof. Even though there may be aftereffects in each case from the failure to do the original work properly, the violation occurred at one point in time, and only the harms occur later.
Our brief argues that the lawsuit involves factual inquiries that depend on substantial amounts of data, witness testimony and other documentary evidence that becomes stale if not litigated in a reasonable amount of time. An initial inquiry into whether a change made at a facility is a modification covered by the permit requirements involves a complex multi-step analysis, made on a case-by-case basis, based on data existing at the time of the modification. The purpose of a statute of limitations is to prevent vexatious litigation years after acts giving rise to the litigation occur. In any event, companies are still subject to ongoing regulatory requirements, because they are subject to operating permits. There is no allegation that an operating permit was violated in this case.