The Fifth Circuit joined the overwhelming majority of US courts of appeals that have ruled that the statute of limitations bars civil penalties for alleged NSR violations. But in a divided opinion, the majority said injunctive relief may still be “available” to the government.
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The New Source Review (NSR) program of the Clean Air Act requires major stationary sources to go through an extensive, time-consuming, and expensive review and permitting process prior to construction. The NSR program also applies to existing facilities if they are modified in ways that result in significantly increased emissions. More than a decade-and-a-half of NSR enforcement litigation has failed to settle the main legal issues, resulting in contradictory court decisions. This lack of certainty has significant implications to how sources must evaluate compliance going forward.
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The New Source Review (NSR) Program of the Clean Air Act requires large new plants to go through an extensive, time-consuming and expensive review and permitting process prior to construction. Such sources are required through these permits, among other requirements, to install the best available control technologies (BACT) to reduce levels of specific regulated pollutants. The NSR program also applies to existing facilities if they are modified in substantial ways and if, as a result, emissions increase by significant amounts. For the first two decades of the NSR program, existing sources rarely triggered it. That is because EPA applied it in a way to be triggered only by unusual projects that would expand the capacity of the source. It is also because NSR is so time-consuming and expensive that sources generally avoided activities that would expand their capacities because they could trigger NSR. That all changed drastically in the late 1990s.
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