Envtl. Assessments & Impact Statements
8/30/2009 1:20:09 PM EST
Site preparation activities are not powerplant construction for purposes of a PSD permit, and thus a challenge based on the lack of a PSD permit will fail if all the power company has done is prepare a site for construction, rules 8th Circuit
Partner, Ropers Majeski Kohn & Bentley
A hunting club alleged that the power company had begun actual construction of the proposed power plant without first obtaining a valid Prevention of Significant Deterioration (PSD) permit as required by the CAA. The power company noted that construction of the plant had not been undertaken, only site preparation (e.g., site clearing; grading and site leveling; installing a detention pond for surface water runoff control; installing construction trailers, office trailers, break trailers, and porta-potties; installing parking lots, storage and laydown areas for construction equipment and construction materials; installing utilities [telephone lines, computer lines, electrical, sanitary and potable water] to construction facilities; ordering, mobilizing and storing construction equipment on site; ordering, mobilizing and storing construction materials on site; installing access roads to and on site; and, installing temporary security fencing on site). Following a hearing, the District Court denied the hunting club’s request for an injunction. At this time the PSD permit had not been issued, although it subsequently was. The hunting club appealed the denial of the request for an injunction.
The power company moved to dismiss the appeal as moot. In its motion the power company asserted that it had subsequently received the PSD permit under the CAA and had lawfully began construction, rendering moot the club's appeal of the denial of its motion for a preliminary injunction to halt preconstruction activities.
In Hempstead County Hunting Club, Inc. v. Southwestern Elec. Power Co., 558 F.3d 763 (8th Cir. 2009), the Court of Appeals considered the issue. The Court noted that the District Court's consideration of injunctive relief extended only to preconstruction activities conducted before the PSD permit was issued, and its consideration of the merits extended only to measuring the club's likelihood of success on its underlying claim. Because the Arkansas Department of Environmental Quality had not issued a permit at the time that the District Court issued its decision, no question regarding the validity of the subsequently issued powerplant PSD permit was deemed to be properly before the District Court. Because no permit had been issued at the time that the club brought its citizen's suit, the club could not have alleged that the subsequently issued PSD permit was invalid. Thus, the Court of Appeals dismissed the club’s appeal. Create an account or login to post comments.