Natl Parks v. TVA ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0086p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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NATIONAL PARKS CONSERVATION ASSOCIATION,
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INC.; SIERRA CLUB, INC.; and OUR CHILDREN’S
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EARTH FOUNDATION,
Plaintiffs-Appellants, -
No. 05-6329
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v. -
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Defendant-Appellee. -
TENNESSEE VALLEY AUTHORITY,
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Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 01-00071—Thomas Varlan, District Judge.
Argued: September 18, 2006
Decided and Filed: March 2, 2007
Before: BATCHELDER and MOORE, Circuit Judges; COHN, District Judge.*
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COUNSEL
ARGUED: George E. Hays, San Francisco, California, for Appellants. Frank H. Lancaster,
TENNESSEE VALLEY AUTHORITY, Knoxville, Tennessee, for Appellee. ON BRIEF: George
E. Hays, San Francisco, California, Wade V. Davies, RITCHIE, DILLARD & DAVIES, Knoxville,
Tennessee, Michael A. Costa, San Francisco, California, William J. Moore III, LAW OFFICE OF
WILLIAM J. MOORE III, Jacksonville, Florida, for Appellants. Frank H. Lancaster, Harriet A.
Cooper, Gregory R. Signer, TENNESSEE VALLEY AUTHORITY, Knoxville, Tennessee, for
Appellee. Andrew G. Frank, NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL,
New York, New York, Louis E. Tosi, SHUMAKER, LOOP & KENDRICK, Toldeo, Ohio, Michael
E. Born, Michael A. Snyder, SHUMAKER, LOOP & KENDRICK, Columbus, Ohio, for Amici
Curiae.
MOORE, J., delivered the opinion of the court, in which COHN, D. J., joined.
BATCHELDER, J. (p. 10), delivered a separate dissenting opinion.
*
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by
designation.
1
No. 05-6329 Nat’l Parks Conservation Assoc. et al. v. TVA Page 2
_________________
OPINION
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KAREN NELSON MOORE, Circuit Judge. Three environmental organizations brought this
suit under the Clean Air Act’s citizen-suit provisions, alleging that the Tennessee Valley Authority
(“TVA”) shirked its duty to obtain appropriate pollution limitations at a power plant it operates in
Clinton, Tennessee. The district court granted summary judgment to TVA, concluding that the
statute of limitations had run on the plaintiffs’ claim for statutory penalties and that the concurrent-
remedy rule barred their claim for injunctive relief. We conclude that the district court’s ruling on
the statute of limitations was in error, REVERSE its grant of summary judgment, and REMAND
this case for further proceedings consistent with this opinion.
I. BACKGROUND
A. Regulatory Framework
The primary purpose of the Clean Air Act (“CAA”) is “to protect and enhance the quality
of the Nation’s air resources so as to promote the public health and welfare and the productive
capacity of its population.” 42 U.S.C. § 7401(b)(1). To achieve these goals, Congress instructed
the United States Environmental Protection Agency (“EPA”) to develop limits on the maximum
concentrations of various pollutants allowable in different areas of the country, known as National
Ambient Air Quality Standards (“NAAQS”). Id. § 7409. To enforce these limits, the CAA employs
a system of cooperative federalism, requiring states to create plans “provid[ing] for implementation,
maintenance, and enhancement” of the NAAQS. Id. § 7410(a)(1). Such a plan, called a “state
implementation plan” (“SIP”), must:
! include enforceable emissions limitations and control measures, as well as
compliance schedules, id. § 7410(a)(2)(A);
! provide for monitoring and analysis of air quality, id. § 7410(a)(2)(B);
! include an enforcement program, id. § 7410(a)(2)(C);
! regulate the construction and modification of sources of pollution, id.;
! prohibit emissions that will harm other states’ efforts toward reducing air
pollution, id. § 7410(a)(2)(D)(i);
! assure proper funding, staffing, and legal authority to carry out the SIP, id.
§ 7410(a)(2)(E); and
! require polluters to monitor the output of pollution and report the results to the
state, id. § 7410(a)(2)(F).
After several years under this regulatory regime, Congress recognized that merely setting
ceilings on emissions did not discourage existing polluters from increasing their pollution levels up
to these limits, or encourage new polluters to minimize their emissions. To fix this defect, Congress
amended the CAA in 1977 to include the “New Source Review” program. United States v. Duke
Energy Corp., 278 F. Supp. 2d 619, 628 (M.D.N.C. 2003), aff’d, 411 F.3d 539 (4th Cir. 2005), cert.
granted sub nom. Envtl. Def. v. Duke Energy Corp., 126 S. Ct. 2019 (2006). New Source Review
featured “provisions for the protection of areas with relatively clean air [known as] Prevention of
Significant Deterioration,” or “PSD.” Duke Energy, 278 F. Supp. 2d at 628.
No. 05-6329 Nat’l Parks Conservation Assoc. et al. v. TVA Page 3
Under PSD, each SIP must “contain emission limitations and such other measures as may
be necessary . . . to prevent significant deterioration of air quality”1 by new sources of pollution or
old sources that have undergone modifications. 42 U.S.C. § 7471. Because a key purpose of PSD
is “to assure that any decision to permit increased air pollution . . . is made only after careful
evaluation of all the consequences of such a decision,” id. § 7470(5), polluters “are required to limit
emissions to a ‘baseline rate’ and [to] obtain a permit before constructing or modifying facilities.”
Duke Energy, 278 F. Supp. at 628 (emphasis in original). These permits are often referred to as
“PSD permits,” and they must both “set[] forth emission limitations for such facility,” 42 U.S.C.
§ 7475(a)(1), and require that any proposed facility must be “subject to the best available control2
technology for each pollutant . . . emitted from, or which results from” the facility, id. § 7475(a)(4).
Additionally, PSD permits require the owner or operator of the plant to agree to ongoing monitoring
“to determine the effect which emissions from any such facility may have, or is [sic] having, on air
quality” in affected areas. Id. § 7475(a)(7).
Tennessee’s SIP provides for separate permits for construction and operation of sources of
air pollution, compare TENN. COMP. R. & REGS. § 1200-3-9-.01 with id. § 1200-3-9-.02, but
prohibits the issuance of an operating permit until all requirements of the construction permit are
met, id. § 1200-3-9-.01(1)(e). Tennessee’s construction-permit regulations prohibit the
commencement of “modification of an air contaminant source . . . without [the operator’s] first
having applied for and received . . . a construction permit for the construction or modification of
such air contaminant source.” Id. § 1200-3-9-.01(1)(a). In turn, any construction or modification
must comply with the emissions limitations expressed in “the approved construction permit
application,” and also with “all provisions of the regulations of [the Tennessee SIP], any applicable
measures of the control strategy, and all provisions of the Tennessee Air Quality Act.” Id. § 1200-3-
9-.01(1)(d). Plants must also operate in accordance with the limits expressed in construction permits
because, as the deputy director of the Tennessee Air Pollution Control Division explained in
deposition, the limitations included in construction permits are carried into operating permits, which
contain no independent emissions limitations themselves. Joint Appendix (“J.A.”) at 625-26, 632
(Styke Depo. at 90-93, 119).
The construction permitting requirements of Tennessee’s SIP also provide:
In the case where a source or modification was constructed without first obtaining
a construction permit, a construction permit may be issued to the source or
modification to establish as conditions of the permit, the necessary emission limits
and requirements to assure that these regulatory requirements are met. The
appropriate enforcement action shall be pursued to insure that ambient air quality
standards and other regulatory requirements will be met.
TENN. COMP. R. & REGS. § 1200-3-9-.01(1)(e). This provision places upon polluters an ongoing
duty to ensure that they obtain the appropriate emissions limitations in their construction permits,
even if they failed to do so before construction. These limitations include Best Available Control
Technology (“BACT”), id. § 1200-3-9-.01(4)(j), and other limitations flowing from the SIP’s PSD
provisions, see id. § 1200-3-9-.01(4).
1
The PSD program applies only to regions that the EPA classifies as being in “attainment” of NAAQS or as
“unclassifiable.” 42 U.S.C. § 7471. More stringent requirements apply to areas designated as being in “nonattainment”
of NAAQS under 42 U.S.C. § 7407(d)(1)(A)(iii).
2
Best available control technology, commonly referred to as “BACT,” is not actually technology; instead, it
is “an emission limitation based on the maximum degree of reduction” possible, taking into account a number of factors.
42 U.S.C. § 7479(3).
No. 05-6329 Nat’l Parks Conservation Assoc. et al. v. TVA Page 4
The Tennessee SIP’s PSD program, however, does not apply to all modifications of
emissions sources. Instead, the PSD regulations — a subset of the generally applicable construction
regulations described above — apply only to new construction and to “major modifications” that
would produce “a significant net emissions increase” of a pollutant. Id. § 1200-3-9-.01(4)(a)(1)-(2).
Similar to the general construction regulations, the PSD program employs a permitting process that
forbids any owner or operator to commence construction without the necessary approvals or to
“construct[] or operate[] a source or modification” inconsistently with the applicable PSD permit.
Id. § 1200-3-9-.01(4)(a)(3). And like the general construction regulations, the emissions limitations
established in a PSD permit determine the emissions limitations in an operating permit. As the
Tennessee Air Pollution Control Division’s deputy director put it, “The PSD permit establishes an
initial limit which would be carried over to a separate operating permit and subsequent operating
permits until such time that a recision [of the PSD permit] occurred.” J.A. at 635 (Styke Depo. at
131). Further, Tennessee’s PSD program requires that subject sources “shall apply best available
control technology” and “shall meet each applicable emissions limitation under . . . the State
Implementation Plan.” TENN. COMP. R. & REGS. § 1200-3-9-.01(4)(j).
B. Relevant Factual Background
TVA, a corporation created by statute with a board of directors appointed by the President,
16 U.S.C. §§ 831-831a, owns and operates the Bull Run power plant in Clinton, Tennessee. In
1988, TVA performed a “major overhaul” of the boiler used to produce electricity, in which it
replaced approximately 58,000 feet of tubing inside the boiler. Joint Appendix (“J.A.”) at 644-45.
This quantity amounts to about 26.5% of the total tubing inside the boiler. TVA admits that it never
applied for, or obtained, a PSD permit under the Tennessee SIP’s PSD regulations, and does not
indicate whether it applied for any other permit before the project.
Following an investigation, in November 1999, the EPA issued an administrative compliance
order (“ACO”) concluding that the boiler overhaul at Bull Run constituted a modification of the
plant, and therefore triggered the PSD provisions of the Tennessee SIP. TVA v. Whitman, 336 F.3d
1236, 1244 (11th Cir. 2003), cert. denied, 541 U.S. 1030 (2004). The ACO further required TVA
to obtain all required permits and enter into a compliance agreement with the EPA. Id.After extensive negotiations between TVA and the EPA and various amendments of the
ACO, the EPA “decided to ‘reconsider’ the ACO by ‘adjudicating’ the issue of whether TVA had
violated the CAA” before the EPA’s Environmental Appeals Board (“EAB”), which substantially
“affirmed” the ACO. Id. at 1245-46. The EPA chose to pursue the matter in front of the EAB rather
than file an enforcement action because it believed that TVA could not be sued in federal court. Id.
at 1239. TVA petitioned for review of the EAB’s decision in the Eleventh Circuit, which ultimately
concluded that critical aspects of the ACO procedure violated due process. Id. at 1256-60. For this
reason, the court further concluded that ACOs lack legal consequence and cannot constitute final
agency action. Accordingly, the court held that it lacked jurisdiction over the dispute, and that the
EPA must prove violations of the CAA in an enforcement action brought in U.S. district court rather
than through its ACO procedure. Id. at 1260. Apparently still clinging to its belief that it could not
sue TVA in federal court, the EPA has not pursued such an action.
On February 13, 2001, Plaintiffs National Parks Conservation Association (“National Parks”)
and Sierra Club filed their original complaint. They amended the complaint to add Our Children’s
Earth Foundation (“OCE”) as a plaintiff in November 2004. The essence of their complaint is that
TVA violated the CAA and the Tennessee SIP by failing to obtain a PSD permit before it modified
the Bull Run plant in 1988, and by continuing to operate the plant without such a permit, without
having performed the required air-quality analysis, and without applying BACT. The result of these
violations, according to the plaintiffs, is that TVA has evaded the appropriate emissions limitations
No. 05-6329 Nat’l Parks Conservation Assoc. et al. v. TVA Page 5
of sulfur dioxide (SO2) and nitrogen oxides (NOx). To rectify these alleged wrongdoings, they seek
declaratory relief, an injunction, and civil penalties to be paid to the EPA.
C. Procedural History
After National Parks and Sierra Club established organizational standing, the district court
stayed all proceedings in April 2002 pending resolution of related litigation in the Eleventh Circuit.
See TVA v. United States Envtl. Prot. Agency, 278 F.3d 1184 (11th Cir. 2002), op. withdrawn in
part, Whitman, 336 F.3d 1236. The district court lifted the stay in July 2004, and the following
month, TVA moved for summary judgment on its statute of limitations defense. Before ruling on
TVA’s motion, the district court granted the plaintiffs leave to file an amended complaint, which
they did in November 2004.
On December 9, 2004, the parties jointly moved the district court to decide TVA’s statute
of limitations defense before ruling on its sovereign immunity defense. The district court granted
this motion.
After a hearing on TVA’s motion for summary judgment, the district court granted the
motion and dismissed the plaintiffs’ complaint with prejudice. In its opinion, the district court
concluded (1) that the plaintiffs did not establish a continuing violation of the CAA and the
Tennessee SIP, (2) that the plaintiffs’ cause of action accrued in 1988, and (3) because the statute
of limitations on the plaintiffs’ claim for civil penalties had run, the concurrent-remedy rule barred
the plaintiffs’ claim for injunctive relief. The plaintiffs moved for reconsideration under Federal
Rule of Civil Procedure 59(e) and for leave to amend under Rule 15. On July 22, 2005, the district
court denied both motions. The plaintiffs now appeal.
II. STANDARD OF REVIEW
We review de novo a district court’s order granting summary judgment. DiCarlo v. Potter,
358 F.3d 408, 414 (6th Cir. 2004). We will affirm a grant of summary judgment “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In reviewing the district court’s decision to
grant summary judgment, we must view all evidence in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III. ANALYSIS
A. Statute of Limitations
A five-year statute of limitations applies to any action “for the enforcement of any civil fine,
penalty, or forfeiture.” 28 U.S.C. §3 2462. The CAA provides for civil penalties of $25,000 per day
per violation, 42 U.S.C. § 7413(b), and the plaintiffs’ first amended complaint seeks such penalties.
The plaintiffs now argue that notwithstanding their request for civil penalties, this is not a case “for
the enforcement of” such penalties because TVA is immune from liability for civil penalties.
3
Section 7413(b) explicitly authorizes only the EPA Administrator “to assess and recover a civil penalty” for
a violation of “any requirement or prohibition of an applicable implementation plan or permit.” However, the citizen-suit
provision authorizes “any person” to pursue a CAA action, and authorizes the district court “to apply any appropriate
civil penalties.” 42 U.S.C. § 7604(a).
The EPA raised the penalties to $27,500 per day for violations committed between January 30, 1997, and
March 15, 2004, and to $32,500 per day for violations committed thereafter. 40 C.F.R. §§ 19.2, 19.4.
No. 05-6329 Nat’l Parks Conservation Assoc. et al. v. TVA Page 6
We recently concluded that “under any circumstances in which the State (or the United
States) declines to raise sovereign immunity as a threshold defense, . . . the federal courts have
discretion to address the sovereign-immunity defense and the merits in whichever order they prefer.”
Nair v. Oakland County Cmty. Mental Health Auth., 443 F.3d 469, 477 (6th Cir. 2006). Here, TVA
did not raise sovereign immunity “as a threshold defense,” e.g., by way of motion to dismiss.
Instead, it (and, for that matter, the plaintiffs) requested that the district court reserve a decision on
TVA’s immunity until after the court addressed TVA’s statute of limitations defense. The district
court did so, and because it concluded that the plaintiffs’ claims were time-barred, never reached
the immunity issue, which therefore is not presently before us. Under Nair, the district court’s
reserving adjudication of TVA’s immunity defense was within its discretion. Accordingly, the
plaintiffs’ request for civil penalties remains part of the operative complaint, and their suit is one
“for the enforcement of” civil penalties. We hold that § 2462’s five-year statute of limitations
applies.
B. Continuing Violation
Because § 2462 applies, for their suit to be timely, the plaintiffs must identify a wrongful act
that took place within five years of their filing this suit. TVA argues, and the district court
concluded, that the CAA and SIP prohibit only construction without a permit. The only construction
here at issue (TVA’s replacing tubing in the Bull Run plant’s boiler) took place in 1988,4 so
according to TVA, the statute of limitations for any violation premised upon that construction ran
in 1993. The plaintiffs counter that TVA’s subsequent and continuing failures (1) to apply BACT
and (2) to obtain a construction permit containing emissions limitations under the Tennessee SIP’s
PSD provisions are actionable. We agree.
Both parties, as well as the district court, framed this dispute as one regarding whether the
plaintiffs have alleged a “continuing violation” of the CAA. Under the continuing-violation
doctrine, the court can consider as timely all relevant violations “including those that would
otherwise be time[-]barred.” Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir.) (internal quotation
marks omitted), cert. denied, 540 U.S. 876 (2003). See also Gandy v. Sullivan County, 24 F.3d 861,
864 (6th Cir. 1994) (“The doctrine . . . may allow a court to impose liability on [a defendant] for acts
committed outside the limitations period.”).
We previously have said that “[c]ourts have been extremely reluctant to apply this doctrine
outside the context of Title VII.” LRL Props. v. Portage Metro Hous. Auth., 55 F.3d 1097, 1105 n.3
(6th Cir. 1995). Since then, we nonetheless have applied the continuing-violation doctrine to claims
for deprivations of civil rights. See, e.g., Tolbert v. Ohio Dep’t of Transp., 172 F.3d 934 (6th Cir.
1999) (applying continuing-violation theory in action brought under 42 U.S.C. § 1983 alleging
racially discriminatory allocation of highway sound barriers); Kuhnle Bros., Inc. v. County of
Geauga, 103 F.3d 516 (6th Cir. 1997) (considering continuing-violation doctrine in case involving
takings claim and due process claims for deprivations of liberty and property). No opinion has
articulated a principled reason why the continuing-violation doctrine should be limited to claims for
deprivations of civil rights and employment discrimination, and other courts have considered the
continuing-violation doctrine in environmental disputes. See, e.g., United States v. Duke Energy
Corp., 278 F. Supp. 2d 619 (M.D.N.C. 2003) (concluding violations of the North and South Carolina
SIPs’ PSD provisions are continuing violations); New York v. Niagara Mohawk Power Corp., 263
F. Supp. 2d 650, 660-63 (W.D.N.Y. 2003) (concluding violations of federal PSD regulations are not
continuing violations); United States v. Westvaco Corp., 144 F. Supp. 2d 439, 442-44 (D. Md. 2001)
(concluding violations of Maryland PSD regulations are not continuing violations).
4
Under 42 U.S.C. § 7479(2)(C), “construction” includes modification.
No. 05-6329 Nat’l Parks Conservation Assoc. et al. v. TVA Page 7
We need not decide whether the continuing-violation doctrine applies in environmental suits,
as we conclude this case presents a series of discrete violations rather than a single violation that
may or may not be “continuing” in nature. Courts have long distinguished continuing violations,
which toll the applicable statutes of limitations, from repetitive discrete violations, which constitute
independently actionable individual causes of action. For instance, in Gandy, we noted that each
check based on a discriminatory method of calculating pay constitutes a separate violation of the
Equal Pay Act, and we concluded that the plaintiff was entitled to a recovery based on any such
checks received within the limitations period. 24 F.3d at 863-64. We further recognized, “Although
[the cause of action is] ‘continuing in nature,’ invocation of the continuing violations doctrine is not
necessary since plaintiffs . . . are not attempting to file an otherwise untimely action and are not
attempting collection of damages for conduct outside the limitations period.” Id. at 864.
Additionally, in Knight v. Columbus, 19 F.3d 579 (11th Cir.), cert. denied, 513 U.S. 929(1994), the Eleventh Circuit noted, “The term ‘continuing violation’ suggests that the original
violation . . . is somehow the source of the [plaintiffs’] present ability to recover.” Id. at 582. The
Knight court continued, “The term ‘continuing violation’ also implies that there is but one incessant
violation and that the plaintiffs should be able to recover for the entire duration of the violation,
without regard to the fact that it began outside the statute of limitations.” Id. There, the plaintiffs
sought recovery under the Fair Labor Standards Act (“FLSA”) for the city’s failure to pay them for
overtime they worked. The city argued that their claims were time-barred because the decision to
classify the employees as exempt from the FLSA’s overtime provisions occurred outside the
limitations period. Noting that the conduct prohibited by the FLSA is failing to pay overtime, the
court concluded that each paycheck that did not compensate the plaintiffs for overtime constituted
a new violation. Accordingly, the court recognized that the plaintiffs did not assert a single
“continuing violation,” but instead sought recovery for “a series of repeated violations of an
identical nature” in which “each violation gives rise to a new cause of action,” id., and held that the
plaintiffs were entitled to recover for each such violation that occurred within the limitations period.
Similarly, in the context of Title VII discrimination charges filed with the EEOC, the
Supreme Court has instructed that “[e]ach discrete discriminatory act starts a new clock for filing
charges alleging that act.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
Accordingly, the Court held that a plaintiff may recover for all discrete acts of discrimination that
occur within the limitations period. Id. at 105, 114. See Sharpe, 319 F.3d at 267-68 (applying
Morgan to claims under 42 U.S.C. § 1983).
Notably, in each of these cases, the court’s analysis began with a careful examination of the
specific conduct prohibited by the statute at issue.5 In Gandy, it was paying female employees
unequally for equal work; in Knight, the prohibited conduct was failing to pay time-and-a-half for
overtime hours worked; and in Morgan, it was discrete acts or occurrences of discrimination, such
as suspension or termination. We follow these examples, and turn now to the precise conduct
prohibited by the CAA.
C. Actionable Conduct
The CAA’s citizen-suit provision authorizes the plaintiffs to sue anyone “who is alleged to
have violated (if there is evidence that the alleged violation has been repeated) or to be in violation
of (A) an emission standard or limitation under this chapter.” 42 U.S.C. § 7604(a)(1). An “emission
standard or limitation under this chapter” includes “any . . . standard, limitation, or schedule
established under any permit issued . . . under any applicable State implementation plan approved
5
The same is true for cases analyzed as potential continuing violations under Tolbert v. Ohio Department of
Transportation, 172 F.3d 934, 941 (6th Cir. 1999), because the first prong of the test articulated in Tolbert requires the
court to identify the “wrongful conduct” alleged in the complaint.
No. 05-6329 Nat’l Parks Conservation Assoc. et al. v. TVA Page 8
by the [EPA] Administrator, any permit term or condition, and any requirement to obtain a permit
as a condition of operations.” Id. § 7604(f)(4) (emphasis added). So defined, the provisions of the
particular state’s SIP determine what conduct is actionable under the CAA. For the plaintiffs’
claims to be timely, then, they must identify (1) a standard or limitation that TVA violated or (2) any
required permit that it failed to obtain, within five years of bringing this suit.
1. Failure to Apply BACT
The district court never determined whether the 1988 project at Bull Run constitutes a “major
modification,” as is required for the PSD regulations to apply to the project. See TENN. COMP. R.
& REGS. 1200-3-9-.01(4)(c). Accordingly, that issue is not before us. Because on summary
judgment we are required to view all evidence in the light most favorable to the opponents of the
motion, here the plaintiffs, we assume without deciding that the project constitutes a major
modification and that the PSD requirements of Tennessee’s SIP apply.
One provision of the PSD regulations states, “A major modification shall apply best
available control technology for any pollutant for which it would result in a significant net emissions
increase at the source.” Id. § 1200-3-9-.01(4)(j)(3) (emphasis added). This provision, by its own
terms, creates an ongoing obligation to apply BACT, regardless of what terms a preconstruction
permit may or may not contain. Even if TVA had obtained a construction permit that did not require
BACT, such an approval “shall not relieve any owner or operator of the responsibility to comply
fully with applicable provisions under [the Tennessee SIP] and any other requirements under local,
State, or Federal law.” Id. § 1200-3-9-.01(4)(a)(5). Because the SIP requires that modified sources
apply BACT, TVA may not rely on any preconstruction approval to justify its post-construction
failure to comply with this provision (again, assuming that the Bull Run overhaul was a “major
modification”).
Under § 1200-3-9-.01(4)(j), failing to apply BACT is actionable, and this cause of action
manifests itself anew each day a plant operates without BACT limits on emissions. The violations
that plaintiffs allege thus occurred both inside and outside the limitations period. We hold that
insofar as the plaintiffs seek assessment of penalties for violations occurring prior to February 13,
1996, their actions are time-barred. Insofar as they seek penalties for later violations, their claims
are timely.
2. Failure To Obtain Appropriate Construction Permit After Construction
The plaintiffs also show that TVA violated its ongoing requirement to obtain the appropriate
construction permit after completing construction. Tennessee’s SIP forbids “the construction . . .
or the modification of an air contaminant source” unless the owner or operator first “applie[s] for
and receive[s] from the Technical Secretary a construction permit for the construction or
modification of such air contaminant source.” TENN. COMP. R. & REGS. § 1200-3-9-.01(1)(a). This
provision appears to support TVA’s position — i.e., that the SIP prohibits only construction without
a permit.
However, under the Tennessee SIP, the obligation to obtain an appropriate permit is ongoing,
and applies even to those sources that did not obtain the appropriate permits before construction:
“In the case where a source or modification was constructed without first obtaining a construction
permit, a construction permit may be issued to the source or modification to establish as conditions
of the permit, the necessary emissions limits and requirements to assure that these regulatory
requirements are met.” Id. § 1200-3-9-.01(1)(e). In other words, while § 1200-3-9-.01(1)(a)
contains the Tennessee SIP’s preconstruction permitting requirement, § 1200-3-9-.01(1)(e)
establishes that the duty to obtain a construction permit containing the proper emissions limits is
ongoing, even post-construction.
No. 05-6329 Nat’l Parks Conservation Assoc. et al. v. TVA Page 9
Despite § 1200-3-9-.01(1)(e)’s seemingly permissive language (“may be issued”), the
provision’s following sentence reveals that obtaining a permit guaranteeing “that ambient air quality
standards and other regulatory requirements will be met” is mandatory, as it requires that “[t]he
appropriate enforcement action shall be pursued.” Id. (emphasis added). The PSD provisions of
Tennessee’s SIP, id. § 1200-3-9-.01(4), are among these “other regulatory requirements.”
TVA admits that it never received a permit containing emissions limitations under the
Tennessee SIP’s PSD provisions. Consequently, TVA has been, and remains, in violation of § 1200-
3-9-.01(1)(e)’s requirement that it obtain a permit containing “the necessary emission limits and
requirements to ensure that [the SIP’s] regulatory requirements are met.”6 Like the alleged failure
to apply BACT, this alleged violation manifests itself each day the plan operates. Accordingly, we
hold that the violations predating February 13, 1996 are time-barred, while the remaining violations
are not.
D. Concurrent-Remedy Rule
Because we conclude that the plaintiffs’ claims for civil penalties are timely under 28 U.S.C.
§ 2462 insofar as they relate to violations occurring within five years of February 13, 2001, we need
not address the district court’s application of the concurrent-remedy rule.
IV. CONCLUSION
For the foregoing reasons, we conclude that the plaintiffs’ claims for civil penalties are
timely insofar as they relate to violations that occurred within five years of the date they filed their
initial complaint. Accordingly, we REVERSE the district court’s decision to the contrary, and
REMAND for further proceedings consistent with this opinion.
6
This, of course, assumes that the Bull Run project was a major modification to which the PSD regulations
apply. On remand, the district court may determine whether the project constituted a major modification under TENN.
COMP. R. & REGS. § 1200-3-9-.01(4)(b)(2), including whether the project “result[ed] in a significant net emissions
increase of any pollutant subject to regulation.”
No. 05-6329 Nat’l Parks Conservation Assoc. et al. v. TVA Page 10
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DISSENT
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ALICE M. BATCHELDER, Circuit Judge. I respectfully dissent because I do not agree that
this case involves a “series of discrete violations.” I believe this case involves, at most, a single
violation that occurred in 1988, and therefore, its statute of limitations expired five years later. I
would affirm the district court.
Under Tennessee law, the TVA was required to obtain two separate permits: a construction
permit, see Tenn. Comp. R. & Regs. 1200-3-9.01; and an operating permit, see id. at .02. The TVA
has an operating permit and no one in the present case has alleged any violation of it. The claim
here is that because the TVA failed to obtain a construction permit prior to its plant modification in
1988 (or any time since), it is emitting pollutants above the allowable BACT levels. Based on my
reading of the law, I would hold that, even if this claim is true, this condition constitutes a series of
discrete harms and not a series of discrete violations.
By way of example, suppose I contracted with a carpenter to repair the roof of my home.
If he failed to do so, then he would have breached the contract – a single violation. Under this
scenario, I suffer a new harm every time it rains, i.e., every time water comes into my living room
through the faulty roof. The carpenter does not, however, breach the contract anew every time it
rains; that is, the carpenter does not commit a new and discrete violation. I believe the same
reasoning applies to the present case, and this reasoning is consistent with Tolbert v. Ohio
Department of Transportation, 172 F.3d 934, 940 (6th Cir. 1999) (distinguishing “continuing ill
effects” from “continuing unlawful acts”). To complete the present example: if a violation (rather
than merely a new harm) occurs each time it rains, then the corollary is that it must rain in order for
a violation to occur, and under such a theory, I would not be able to sue the carpenter for breaching
the contract to repair my roof until after I had suffered through at least one rain storm. In truth,
however, I could sue the carpenter as soon as I became aware of his breach of the contract; I need
not wait for it to rain, and if I were to wait, I would likely be held accountable for such a delay.
Returning to the present case, let us assume, arguendo, that the TVA was in fact required
to obtain a construction permit before beginning its modification of the Bull Run plant in 1988. By
failing to do so, it committed a violation. Under this scenario, the plaintiffs may have suffered a new
harm every time thereafter that the plant was in operation (i.e., emitting pollutants above the BACT
levels), but just as with the carpenter, the TVA did not violate the construction permit requirement
anew every time the plant was operating. That is, the TVA did not commit a new and discrete
violation of the construction permit requirement every time it operated the plant, particularly if the
TVA was in compliance with its operating permit. To complete this reasoning; if a violation (rather
than merely a harm) occurs each time the plant operates, then the corollary is that the plant must
operate in order for a violation to occur, and under such a theory, there would be no violation for
failing to obtain a construction permit until after the TVA had operated the plant at least one time.
While that is an apt description of an operating permit, it is an inapt description of a construction
permit.
Because I find this “discrete violations” approach unsupported by law or reason, I must
respectfully dissent. This seems to me to be the plaintiffs’ strained attempt to circumvent their
failure to act within the statute of limitations. If they have a claim that the TVA is violating its
operating permit by emitting pollutants in excess of BACT levels, then they should file that claim.
The present claim, however, expired in 1993. I would affirm.