Emission Permit Gamble Paid Off for ComEd

     CHICAGO (CN) – Commonwealth Edison hit pay dirt on its gamble to avoid installing clean air technology at five power plants in the 1990s, the 7th Circuit ruled.
     Any “major emitting facility” built or substantially modified after August 7, 1977, requires a construction permit, in addition to operating permits subject to regulation under the Clean Air Act.
     One condition of a construction permit is installation of “the best available control technology for each pollutant subject to regulation under” the act.
     ComEd modified five of its Illinois coal-fired power plants between 1994 and 1999, then sold them to Midwest Generation.
     All the plants were in operation before 1977, so were grandfathered until their modification, but ComEd did not obtain permits, and therefore, did not install new control technology.
     “This was a risky strategy because, if someone had contested the decision within the statute of limitations (five years), then Commonwealth Edison could have needed to undertake a further round of modifications to get the permit and might have had to pay hefty penalties for the delay,” the federal appeals court explained Monday. “As it happened, however, no one sued until 2009, a decade after the last of the modifications had been completed.”
     A federal judge dismissed the case as untimely, and the 7th Circuit affirmed. “Commonwealth Edison needed permits before undertaking the modifications,” Chief Judge Frank Easterbrook wrote for the three-judge panel.
     But, “by the time this suit commenced, between 10 and 15 years had passed since the modifications were finished, at least double the five-year period of limitations,” he added.
     The government cannot show that ComEd’s failure to obtain a construction permit represents a “continuing violation,” according to the eight-page ruling.
     “Today’s emissions cannot be called unlawful just because of acts that occurred more than five years before the suit began,” Easterbrook wrote. “Once the statute of limitations expired, Commonwealth Edison was entitled to proceed as if it possessed all required construction permits.”

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