In United States v. United States Steel Corp., __F.Supp.2d__, 2014 WL 1577837 (N.D. Ind. Apr. 18, 2014), an Indiana district court judge granted the defendant’s motion for reconsideration, candidly admitted he was wrong the first time, and held that the five-year statute of limitation applied to claims for injunctive relief in certain Clean Air Act permitting cases.
The EPA and three similar state environmental agencies brought suit against U.S. Steel related to a modification of a company furnace located in Indiana. U.S. Steel performed the work in 1990, and the plaintiff environmental agencies alleged that U.S. Steel never got the required “construction permit.” Specifically, the plaintiffs alleged that the work in 1990 constituted a “major modification” under the Clean Air Act. A major modification would trigger requirements under the Clean Air Act’s PSD (“Prevention of Significant Deterioration) and NSR (New Source Review) permitting programs. In general, these requirements include government review, modification permits, and installing mechanisms for minimizing pollution. The plaintiffs alleged that U.S. Steel did not comply with these requirements when it performed the work in 1990, and the plaintiffs sought financial penalties and injunctive relief.
Since the claim was filed in 2012 and related to the 1990 project, U.S. Steel brought a motion to dismiss based on the five-year statute of limitations. The court agreed that the statute of limitations barred the claim for financial penalties. However, the court initially did not find that the statute of limitations barred the request for injunctive relief.
After U.S. Steel filed a motion for reconsideration, the court reevaluated the Seventh Circuit Court of Appeal’s decision in United States v. Midwest Generation, LLC, 720 F.3d 644 (7th Cir. 2013), and found that Midwest Generation prohibited the government from seeking injunctive relief for alleged permitting violations that were committed and completed long ago. The court admitted that it found the Seventh Circuit’s reasoning less than crystal clear, and noted that the Seventh Circuit did not mention injunction directly. However, the court re-examined Midwest Generation and determined that injunctive relief was limited to the five-year statute of limitations.