Sierra Club v. Okla. Gas & Elec. Co.
| Citation | 816 F.3d 666 |
| Decision Date | 08 March 2016 |
| Docket Number | No. 14–7065.,14–7065. |
| Parties | SIERRA CLUB, Plaintiff–Appellant, v. OKLAHOMA GAS AND ELECTRIC COMPANY, Defendant–Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
816 F.3d 666
SIERRA CLUB, Plaintiff–Appellant,
v.
OKLAHOMA GAS AND ELECTRIC COMPANY, Defendant–Appellee.
No. 14–7065.
United States Court of Appeals, Tenth Circuit.
March 8, 2016.
David C. Bender, McGillivray Westerberg & Bender LLC (Jacquelyn L. Dill, Dill Law Firm, P.C., Oklahoma City, OK, with him on the briefs), Madison, WI, for Appellant.
Brian J. Murray, Jones Day (Charles T. Wehland and Meghan E. Sweeney, Jones Day, Chicago, IL, and Donald K. Shandy and Patrick R. Pearce, Jr., Ryan Whaley Coldiron Shandy PLLC, Oklahoma City, OK, with him on the brief) Chicago, IL, for Appellee.
Before TYMKOVICH, Chief Judge, EBEL, and BRISCOE, Circuit Judges.
TYMKOVICH, Chief Judge.
Sierra Club brought a citizen suit seeking civil penalties against Oklahoma Gas and Electric Company "(OG & E)" for alleged violations of the Clean Air Act. Sierra Club asserts that in March and April of 2008, OG & E, the owner and operator of a coal-fired power plant in Muskogee, modified a boiler at the plant without first obtaining an emission-regulating permit as required under the Act. Because Sierra Club filed its action more than five years after construction began on the plant, the district court dismissed its claim under Rule 12(b)(6) as barred by the statute of limitations. The court also dismissed Sierra Club's claims for declaratory and injunctive relief because these remedies were predicated on the unavailable claim for civil penalties.
We agree with the district court and conclude that Sierra Club's claim for civil penalties is statutorily time-barred under 28 U.S.C. § 2462 because it was brought more than five years after the date when the cause of action first accrued. In addition, Sierra Club's claims for declaratory and injunctive relief are precluded because they are based on the same facts as the time-barred claim for civil penalties.
Accordingly, we AFFIRM.
I. Background
The Clean Air Act (CAA) directs states to achieve and maintain air quality standards set by the EPA. Each state must adopt a state implementation plan (SIP) for meeting these goals, subject to EPA approval. See 42 U.S.C. §§ 7407(a), 7410(a), 7410(k). In "attainment" areas, where air quality is already up to standards, see id. § 7407(d)(1)(A)(ii), SIPs must comply with the federal Prevention of Significant Deterioration (PSD) program, see id. §§ 7470–7492. The purpose of this program is to protect air quality from significant deterioration caused by new emissions. See id. § 7470. To further that aim, the PSD program provides that a "major emitting facility" cannot be constructed or modified without a permit that sets emission limitations. Id. § 7475(a)(1)1 ; see also id. § 7479(2)(c) (defining
"construction" to include "the modification ... of any source or facility"). Oklahoma's SIP, which has been approved by the EPA, honors this requirement by providing that "[n]o person shall cause or allow the construction or modification of any source" without obtaining a PSD permit from the Oklahoma Department of Environmental Quality. Oklahoma SIP Regulations § 1.4.2(a)(1);2 see also id. § 1.4.4 (setting specific requirements that major emission sources must meet to receive a permit).
According to the complaint, OG & E began modifying a boiler at its Muskogee power plant sometime in March 2008. The plant is a major emitting facility located in an attainment area and therefore was subject to the PSD permit requirement. OG & E did not obtain a PSD permit before commencing the project. Nor did the company secure one before the modification ended sometime in April 2008. Sierra Club alleges that the modification resulted in an increase in the emission of pollutants.
Although the modification was completed in April 2008, Sierra Club took no legal action until 2013. At that time, it notified OG & E that it intended to bring suit under the CAA, which grants any person a cause of action against an entity that constructs or modifies a major emitting facility without a PSD permit. See 42 U.S.C. § 7604(a)(3). Sierra Club sought civil penalties under 42 U.S.C. § 7413(e)(2) for each day of unpermitted modification activity, as well as declaratory relief and an injunction requiring OG & E to obtain a PSD permit and upgrade its pollution controls so as to comply with Oklahoma regulations. The parties subsequently entered an agreement that tolled the statute of limitations effective April 1, 2013.
Because the CAA does not specify a statute of limitations for bringing a citizen suit for civil penalties, the default five-year statute of limitations for civil penalties, fines, and forfeitures under federal law applies. See 28 U.S.C. § 2462. Thus, the parties agreed that any penalties originating before April 1, 2008—five years prior to the tolling agreement—were time-barred. The question was whether Sierra Club could maintain a claim for penalties originating on April 1, 2008 or later.
The district court dismissed Sierra Club's claim for civil penalties, holding any failure on OG & E's part to obtain a PSD permit would have been a violation that accrued at the commencement of modification of the boiler, which was before April 1, 2008. The court also dismissed Sierra Club's equitable claims for injunctive and declaratory relief because they were predicated on the time-barred legal claim.3
II. Analysis
Sierra Club makes two arguments. First, it contends that the statute of limitations does not bar its claim for civil penalties because OG & E continued to violate the CAA until it completed the modification, which was sometime after April 1, 2008. Second, it asserts that its claims for equitable relief are not expired because they are separate from its claim for civil penalties; Sierra Club seeks equitable relief as an alternative remedy, rather than as a means to enforce its civil penalties claim.
We consider these arguments in turn, first holding the statute of limitations bars Sierra Club's suit for civil penalties because the claim first accrued when modification commenced. We next hold Sierra Club's actions for injunctive and declaratory relief are precluded by the concurrent remedy doctrine.4
A. Statute of Limitations
We review de novo "a district court's ruling regarding the applicability of a statute of limitations." Plaza Speedway, Inc. v. United States, 311 F.3d 1262, 1266 (10th Cir.2002) (internal quotation mark omitted). A statute of limitations defense "may be appropriately resolved on a [Rule] 12(b) motion when the dates given in the complaint make clear that the right sued upon has been extinguished." Lee v. Rocky Mountain UFCW Unions & Emp'rs Tr. Pension Plan, 13 F.3d 405, at *1 (10th Cir.1993) (Table).
An action seeking civil penalties for failure to obtain a PSD permit must be brought "within five years from the date when the claim first accrued." 28 U.S.C. § 2462. The parties agree that a PSD permit is a pre-construction or pre-modification requirement, but disagree as to whether the beginning of the limitations period is delayed as long as the unpermitted construction or modification process continues. Sierra Club argues that the statute of limitations resets on each day of unpermitted construction or modification, which in this case included days after April 1, 2008.
Sierra Club raises two distinct theories: (1) OG & E committed a new, discrete violation on each day of unpermitted modification, which we refer to as a theory of "repeated violations"; or (2) OG & E committed a single violation when it began unpermitted construction, but that violation continued until construction was completed. We refer to the latter as a theory of "continuing violation." In Sierra Club's view, if either of these theories is correct, then the statute of limitations does not preclude civil penalties for days of modification beginning with April 1, 2008. In contrast, OG & E maintains that the failure to procure a PSD permit generated a single claim for one day's penalty that accrued only on the first day of modification, which of course occurred before April 1, 2008.
We need not consider whether OG & E's position is correct because we conclude that Sierra Club's claim for penalties is time-barred for other reasons. The statute of limitations begins to run as soon as a claim "first accrue[s]." (emphasis added). Id. As explained below, if any form of violation exists beyond the first day of unpermitted modification, it is best characterized as a continuing violation rather than a series of repeated violations.5
And because this particular violation first accrued when modification commenced, the statute under § 2462 began to run on that date. That was more than five years before Sierra Club brought suit, and any penalties are accordingly time-barred.
A single violation continues over an extended period of time "when the plaintiff's claim seeks redress for injuries resulting from a series of separate acts that collectively constitute one unlawful act," as opposed to "conduct that is a discrete...
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