Yes, Virginia, NSR Really Is A Preconstruction Permitting Program: Another NSR Enforcement Case Fails On Statute Of Limitations Grounds

The trend of cases holding that the NSR provisions of the Clean Air Act constitute a one-time preconstruction review requirement got stronger earlier this month, as the decision in Sierra Club v. Oklahoma Gas and Electric Company dismissed claims by the Sierra Club related to facility modifications that occurred more than five years prior to entry of a tolling agreement between the parties.  The decision may not break any new ground, but it does help solidify some issues:

• The statute of limitations begins to run when construction commences ("the last possible moment at which a preconstruction violation occurs is when the actual construction is commenced....")
• The "concurrent remedy" doctrine means that the statute of limitations applies to injunctive relief as well as damages