Sierra Club Too Late in|Challenging Coal Plant

(CN) - The 8th Circuit declined to reinstate the Sierra Club's lawsuit against the owners of a coal-fired power plant in South Dakota, saying the group waited too long to challenge modifications that allegedly increased the plant's emissions.

The Sierra Club argued that the plant's owners and operators -- Otter Tail Power Co., MDU Resources Group and Northwestern Energy -- made three significant modifications to the Big Stone Generating Station in Big Stone City, S.D., without obtaining the permits required by federal law.

In 1995, the power plant switched the type of coal used, a change that significantly increased its nitrogen oxide and particulate matter emissions, according to the Sierra Club.

The next change occurred three years later, when the owners increased the surface area of the boiler's primary superheater. The Sierra Club said this, too, increased the nitrogen oxide and sulfur dioxide emissions.

And in 2001, the owners got their permit amended to allow Big Stone to supply steam to a nearby ethanol plant.

The Sierra Club argued that each of these modifications required a new permit, which the owners did not obtain.

But a federal judge found the group's claims untimely, because the Sierra Club didn't sue until 2008, more than five years after the power plant was last modified.

The judge also dismissed the environmental group's claim that the owners needed a new permit for the steam operation because it qualified as a major new source of pollution.

The federal appeals court in St. Louis upheld the lower court's ruling. In doing so, it held that the Clean Air Act's permit requirements apply to new construction or modification, not to "ongoing operations" -- an issue never before addressed by the 8th Circuit.

Had the court taken the "ongoing operations" view, as the Sierra Club urged, the group's claims would still be viable.

But the 8th Circuit joined the 11th Circuit in determining that the permit requirement -- and any related claims -- applies only when the plant was built or modified.

Another sister court, the 6th Circuit in Cincinnati, reached the opposite conclusion, setting the stage for potential Supreme Court review.

The 8th Circuit also dismissed the Sierra Club's claim over the steam operation, saying the group should have raised that issue in administrative proceedings.

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