A federal appellate ruling blocking environmentalists from suing a power plant for past violations appears.to have created a split in the federal circuits on whether facilities' long-time failure to obtain a new source review (NSR) permit for past modifications results in "continuing" violations that trump the five-year statute of limitations that generally applies to Clean Air Act cases. The ruling by the U.S. Court of Appeals for the 11th Circuit is a setback for environmentalists and states, who are suing the Tennessee Valley Authority (TVA) in a bid to force its facilities to install pollution control technologies. Activist sources say they are considering several options, including appealing the ruling to the Supreme Court and asking the full 1 lth Circuit to review its ruling in an en banc appeal. Relevant documents are available on InsideEPA.com. See page 2 for details. The ruling is especially significant because environmentalists were pursuing the litigation after the court dismissed EPA's enforcement action against the facility in a landmark 2003 ruling, TVA v. EPA, a rejection of one of EPA's most high-profile efforts to enforce the contested NSR program.
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