EME obtains dismissal of federal suit alleging violations of Clean Air Act and related regulations
Clients EME Homer City Generation, L.P.
Jones Day is defending EME Homer City Generation, L.P. ("EME"), an independent electrical power producer, in an action brought in the U.S. District Court for the Western District of Pennsylvania by the Department of Justice and the States of Pennsylvania, New York, and New Jersey. The suit alleged violations of the Clean Air Act ("CAA"), certain of its implementing regulations, and Pennsylvania state law. The United States alleged that EME had violated the CAA's Prevention of Significant Deterioration ("PSD") provisions and its operating permit provisions (Title V) by operating a unit or units at a power plant that a prior owner had allegedly modified years before without obtaining PSD permits. The States cumulatively alleged these same federal claims, as well as claims for violations of the Pennsylvania Air Pollution Control Act ("APCA"), and a claim for establishing a public nuisance under Pennsylvania law. The Court (Judge Terrence F. McVerry) dismissed all counts asserted by all plaintiffs with prejudice and without leave to amend. In a memorandum opinion and order dated October 12, 2011, the Court held that because any alleged PSD violation was committed by the prior owner of the plants (if at all), EME could not be held liable now. The Court dismissed the Title V claims as derivative of the dismissed PSD claims and the claims under Pennsylvania's APCA as similar to (and thus as flawed as) the PSD claims. Finally, the Court held that the CAA and the APCA preempted Pennsylvania's public nuisance claim.
United States, et al. v. EME Homer City Generation L.P., et al., Case No. 2:11-cv-19 (W.D. Pa.)