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U.S. v. EME HOMER CITY GENERATION, L.P.

Nos. 11-4406, 11-4407, 11-4408.

727 F.3d 274 (2013)

UNITED STATES of America Commonwealth of Pennsylvania, Department of Environmental Protection; State of New York; State of New Jersey, (Intervenors in District Court) v. EME HOMER CITY GENERATION, L.P.; Homer City OL1, LLC; Homer City OL2, LLC; Homer City OL3, LLC; Homer City OL4, LLC; Homer City OL5, LLC; Homer City OL6, LLC; Homer City OL7, LLC; Homer City OL8, LLC; New York State Electric and Gas Corporation; Pennsylvania Electric Company, United States of America, Appellant. United States of America Commonwealth of Pennsylvania, Department of Environmental Protection; State of New York; State of New Jersey, (Intervenors in District Court) v. EME Homer City Generation, L.P.; Homer City OL1, LLC; Homer City OL2, LLC; Homer City OL3, LLC; Homer City OL4, LLC; Homer City OL5, LLC; Homer City OL6, LLC; Homer City OL7, LLC; Homer City OL8, LLC; New York State Electric and Gas Corporation State of New York, Appellant. United States of America Commonwealth of Pennsylvania, Department of Environmental Protection; State of New York; State of New Jersey, (Intervenors in District Court) v. EME Homer City Generation, L.P.; Homer City OL1, LLC; Homer City OL2, LLC; Homer City OL3, LLC; Homer City OL4, LLC; Homer City OL5, LLC; Homer City OL6, LLC; Homer City OL7, LLC; Homer City OL8, LLC; New York State Electric and Gas Corporation Commonwealth of Pennsylvania, Department of Environmental Protection; State of New Jersey, Appellants.

United States Court of Appeals, Third Circuit.

Filed: August 21, 2013.

Attorney(s) appearing for the Case

David J. Hickton , Paul E. Skirtich , Office of United States Attorney, Pittsburgh, PA, Robert J. Lundman [Argued], John Sither , L. Katherine Vanderhook-Gomez , United States Department of Justice, Washington, DC, for Appellant United States of America.

Richard P. Dearing , Claude S. Platton [Argued], Monica B. Wagner , Office of Attorney General of the State of New York, New York, NY, Michael Heilman , Commonwealth of Pennsylvania, Pittsburgh, PA, Michael J. Myers , Office of Attorney General of New York, Albany, NY, Jon C. Martin , Lisa J. Morelli , Office of Attorney General of New Jersey, Trenton, NJ, for Appellants.

Stephen J. Bonebrake , Andrew N. Sawula , Schiff Hardin , Brian J. Murray , Jones Day, Chicago, IL, Kevin P. Holewinski , Jones Day, Beth M. Kramer , Jeffrey Poston , Chet M. Thompson [Argued], Crowell & Moring, John P. Elwood [Argued], Kevin A. Gaynor , Benjamin S. Lippard , Jeremy C. Marwell , Vinson & Elkins, Paul D. Clement , David Z. Hudson , Bancroft, Paul E. Gutermann , Akin, Gump, Strauss, Hauer & Feld, Washington, DC, James J. Jones , Rebekah B. Kcehowski , Jones Day, Peter T. Stinson , W. Alan Torrance , Dickie, McCamey & Chilcote, Pittsburgh, PA, for Appellees.

Before: SMITH, FISHER, and CHAGARES, Circuit Judges.

OPINION

SMITH, Circuit Judge.

The owners of a coal-fired power plant failed both to obtain a preconstruction permit and to install certain pollution-control technology before making changes to the plant. The Environmental Protection Agency and several states say the owners were required to do so. But the EPA1 did not cry foul until more than a decade after the changes, well after the owners had sold the plant. Now the EPA wants...

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