The Eighth Circuit Court of Appeals has dismissed a Clean Air Act (CAA) citizen suit filed in June 2008 seeking civil penalties against a South Dakota power plant for allegedly failing to obtain necessary permits and for violating emissions standards.Sierra Club v. Otter Tail Power Co., No. 09-2862 (8th Cir. 8/12/10).

The lawsuit alleged that defendant failed to obtain permits for a series of modifications at the Big Stone Generating Station near the South Dakota/Minnesota border and failed to comply with best available control technology (BACT). According to district court records, the plant’s first operating permit was issued in January 1975, and the plant began opera- tions in May, burning lignite coal as its primary fuel. In August, the plant began burning subbituminous coal as its primary fuel.

Plaintiffs alleged that the conversion resulted in a significant net emissions increase in nitrogen oxide and particulate matter and that defendants did not obtain a permit under the CAA’s prevention of significant deterioration (PSD) provisions. Plaintiffs also challenged changes made in 1998 to the plant’s boiler and amendments the state made in August 2001 to the plant’s permit. In April 2009, the district court dismissed the lawsuit, finding that it was not filed within the five-year statute of limitations, and plaintiffs appealed.

Affirming the district court, the appellate court held that plaintiffs’ failure to object to the 2001 permit modification or seek judicial review of that modification divested the district court of juris- diction over plaintiffs’ claims under section 7607(b) (2) of the CAA. The court also ruled that because plaintiffs’ civil penalty claims are barred by the statute of limitations, the equitable remedies it seeks are likewise barred.