The Nickel Report

The New Source Review (NSR) Program of the Clean Air Act (CAA) requires large new plants (in the parlance of the Act “major” “stationary sources”) to go through an extensive, time consuming and expensive review and permitting process prior to construction. Such sources are required through these permits, among other requirements, to install the best available control technologies (BACT) to reduce levels of specific regulated pollutants. The NSR program also applies to existing facilities if they are modified in substantial ways and if, as a result, emissions increase by significant amounts (these are known as “major modifications”).

For the first two decades of the NSR program, existing sources rarely triggered it. That is because EPA applied it in a way to be triggered only by unusual projects that would expand the capacity of the source. It is also because NSR is so time-consuming and expensive that sources generally avoided activities that would expand their capacities because they could trigger NSR.

That all changed drastically in the late 1990s. EPA’s enforcement arm, in an effort to drive policy, filed and/or threatened a large number of lawsuits to force the installation of controls not otherwise required by the Clean Air Act. To achieve this goal, EPA asserted in the lawsuits and notices of violation a theory of universal liability: any maintenance project—anything larger than day-to-day activity like “changing oil” in a car—is a “change” that could trigger NSR; and any such “change,” if it addresses reliability, availability or efficiency issues that the plant might have experienced in the recent past, said EPA, will “increase” total emissions as compared to the recent past and therefore will trigger NSR. A favorite tactic in these lawsuits, for both EPA and citizen groups, is to assert NSR violations for projects that had been undertaken by the plants many years, even decades, in the past. Plaintiffs demanded very large civil penalties and injunctive relief that would require “current” BACT (i.e., what’s currently state-of-the-art controls), not what consisted BACT at the time the projects were undertaken.

One of the key issues in these cases is whether the statute of limitations and related doctrines bar civil penalties and/or injunctive relief for an alleged failure to obtain an NSR permit for a project undertaken more than five years before the complaint is filed. In particular, the dispute has centered on whether the failure to obtain a pre-construction permit—the NSR permit—is a one-time violation that occurs at the time of construction, or a “continuing violation” that accrues every day the plant operates without installing the BACT equipment that would have been required in such a permit. The Third, Seventh, Eighth, Tenth, and Eleventh Circuits have held that a failure to obtain an NSR permit is a one-time violation that accrues at the time of construction. So the general federal statute of limitations applies and bars civil penalties for any project undertaken more than five years before the complaint. The Sixth Circuit ruled differently in one case, but on the basis of a peculiar difference in the applicable Tennessee regulations.

The Eighth, Tenth, and Eleventh Circuit cases involved citizen groups as plaintiffs. In these cases, the courts held that injunctive relief is also unavailable for old projects when the statute of limitations has expired, under the “concurrent remedy doctrine.” The Tenth and Eleventh Circuits have said in other decisions involving the Clean Water Act, however, that concurrent remedy is an equitable doctrine (in the nature of laches) that does not apply to the government . The Seventh and Third Circuit held that injunctive relief was unavailable in those cases for alleged past NSR violations, even though the government was the plaintiff. The government generally distinguishes these cases on the grounds they involved peculiar circumstances in which the companies that undertook the project in the ancient past had since sold the plants, so the current owner/operator has not done anything wrong. But the Seventh Circuit does not cite that fact as the basis of its holding barring injunctive relief. And the Third Circuit also said that the basis of its decision is that the Clean Air Act does not authorize injunctive relief for violations that are wholly in the past, which is what one-time NSR violations are.

In litigating the statute of limitations issue, the plaintiffs have repeatedly argued that the Fifth Circuit had already decided that NSR violations are continuing and are not barred by the statute of limitations in a 1996 case called United States v. Marine Shale Processors. But none of the circuit courts that decided the issue even bothered to discuss Marine Shale because the statute of limitations portion of that case plainly did not involve the NSR program.

These issues have now (actually) come to a head before the Fifth Circuit in United States v. Luminant. The district court in Luminant agreed with the unanimous view of the five circuits having addressed the issue that federal NSR violations are one-time violations, and the statute of limitations therefore bars civil penalties for projects undertaken more than five years before the complaint. The district court also held that injunctive relief is also barred both under the concurrent remedy doctrine and because, as the Third Circuit explained, the statute does not authorize injunctive relief for wholly past violations.

The Fifth Circuit heard oral argument on March 5, 2018, on the government’s appeal. It is always hazardous to read the tea leaves based on oral argument. But Marine Shale hardly got mentioned. And the questioning sure seemed to proceed from the premise that the court would likely agree with the Third, Seventh, Eighth, Tenth, and Eleventh Circuits that NSR violations are one-time violations and that the statute of limitations bars civil penalties for projects undertaken more than five years before the complaint. Will the Fifth Circuit also affirm the dismissal of injunctive relief? The implications for government and citizen suit NSR actions would be substantial. We will soon find out.