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United States v. Missouri

United States District Court, E.D. Missouri, Eastern Division

February 27, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
AMEREN MISSOURI, Defendant. and SIERRA CLUB, Plaintiff-Intervenor,

          MEMORANDUM & ORDER

          RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE

         Parties move for summary judgment during the remedies phase of this Clean Air Act case. Ameren Missouri (Ameren) argues that I do not have authority to order injunctive relief for past violations of the Clean Air Act, that I cannot determine what constitutes Best Available Control Technology (BACT), and that I cannot order emissions reductions at a non-offending plant. The Environmental Protection Agency (EPA) argues that there is no material dispute that flue gas desulfurization constitutes best available control technology.

         Neither the plain language of the Clean Air Act nor the case law cited by Ameren supports its claim that no injunctive relief is available to remedy Ameren's past violations of the Clean Air Act. As a result, I will deny Ameren's motions for summary judgment.

         I will also deny the EPA's motion for summary judgment, because I cannot, as a matter of law, find that flue gas desulfurization constitutes the best available control technology.

         BACKGROUND

         On January 23, 2017, after a bench trial, I found that Ameren violated the Clean Air Act, 42 U.S.C. § 7401 et seq., by failing to obtain a permit before making major modifications to its Rush Island Plant. (ECF No. 852). Ameren replaced the economizer, reheater, lower slopes, and air preheaters at Rush Island Unit 1 in 2007, and the economizer, reheater, and air preheaters at Rush Island Unit 2 in 2010. (Id. at 17). These major elements of Rush Island's 230-feet-tall boilers had experienced operational problems including boiler tube leaks, slagging, fouling, and plugging that were consistent with them reaching the end of their 35-year expected lifespan. (Id. at 15-19). By replacing these components, Ameren extended the natural life of Rush Island. These changes also increased SO2 emissions by decreasing forced outages and load limitations. (Id. at 59-60).

         The liability and remedies phases of this case were severed in order to more orderly conduct discovery and presentation of arguments in dispositive motions and at trial. After trial, I granted the Sierra Club's motion to intervene. [No. 863]. Parties engaged in additional discovery concerning how Ameren should remedy the excess emissions released as a result of its Clean Air Act violations.

         Ameren now moves for summary judgment on three separate grounds. First, Ameren argues that the Clean Air Act only authorizes courts to order injunctive relief for ongoing violations. In the liability phase of this case, the EPA withdrew its claim for civil penalties to “simplify and streamline the trial in this case.” (ECF No. 701). Ameren now argues that EPA cannot obtain injunctive relief sought at trial despite prevailing in the liability phase, because EPA is limited to the monetary penalties previously abandoned by the EPA. Second, Ameren argues that I cannot determine what constitutes BACT in this case, because that would take away permitting authority from the Missouri Department of Natural Recourses (MDNR) and violate the federalism inherent to the Clean Air Act. Third, Ameren argues that I cannot order emissions reductions at Ameren's Labadie Energy Center, because I have not concluded that Ameren operated that power plant in violation of the Clean Air Act.

         The EPA filed a cross motion for summary judgment, arguing that as a matter of law, I should issue an injunction requiring Rush Island to acquire a PSD permit and install BACT. The EPA also argues that there is no dispute of material fact that flue gas desulfurization (FGD) constitutes BACT for Rush Island. According to EPA, Ameren determined that FGD was a feasible and effective process for reducing sulfur dioxide emissions at its Rush Island plant.

         LEGAL STANDARD

         ANALYSIS

         I. Ameren Motion for Summary Judgment No. 1: Injunctive Relief

         In its first motion for summary judgment, Ameren argues that the Clean Air Act does not authorize injunctions as a remedy for past violations. The Clean Air Act gives United States district courts “jurisdiction to restrain [a Clean Air Act] violation, to require compliance, to assess such civil penalty, to collect any fees owed the United States under this chapter . . ., and to award any other appropriate relief.” 42 U.S.C. § 7413(b) (emphasis added). Ameren argues that this provision grants jurisdiction only to restrain ongoing violations and to assess penalties for past violations. Under Ameren's interpretation, the Clean Air Act does not authorize me to grant any injunctive relief when a defendant has been found liable for a past violation.

         “When determining the meaning of a statute, [my] starting point must be the plain language of the statute” itself. Watson v. Ray, 192 F.3d 1153, 1155 (8th Cir. 1999). The plain language of § 7413(b) gives the EPA authority to “commence a civil action” for injunctive relief or civil penalties, “or both, ” whenever a person “has violated or is in violation of any requirement or prohibition of” EPA air quality control programs. (emphasis added). This statutory language places no restriction on injunctive relief for past violations. On the contrary, the statute authorizes the EPA to seek injunctive relief whenever a person has violated the Clean Air Act. The plain language in § 7413(b) places no limitation on a district court's jurisdiction to grant an injunction concerning a past violation. Instead, it provides jurisdiction “to restrain [a Clean Air Act] violation, to require compliance, ” to assess civil penalties, collect fees, or “to award any other appropriate relief.” Id. (emphasis added).

         Ameren argues that this grant of authority is circumscribed by § 7477 which reads in part, “[t]he Administrator shall, and a State may, take such measures, including issuance of an order, or seeking injunctive relief, as necessary to prevent the construction or modification of a major emitting facility which does not conform to the requirements of this part . . .” 42 U.S.C. § 7477. The plain language of this section does not circumscribe or even refer to the grant of jurisdiction in § 7413(b). Ameren's interpretation of the rule, however, concludes that this section makes injunctive relief available only when necessary to prevent construction or modification. Ameren argues that, as a result, an injunction can only issue before construction or modification occurs. Under this reading, § 7477 would allow Ameren and other parties to entirely evade the permitting requirements of the Clean Air Act. Ameren's argument would permit Ameren to construct or modify a power plant without obtaining the required permit. And, if the construction were completed before EPA sued, then-under Ameren's interpretation-a district court could not order Ameren to obtain a permit.

         To support this interpretation, Ameren cites cases where equitable claims were dismissed pursuant to the statute of limitations. In Sierra Club v. Otter Trail Power Co, for example, the Eighth Circuit affirmed the district court's dismissal of Sierra Club's legal and equitable claims. 615 F.3d 1008, 1018-19 (8th Cir. 2010). The Eighth Circuit held that operating a power plant without a permit does not constitute an ongoing violation that tolls the statute of limitations. 615 F.3d 1008, 1013 (8th Cir. 2010). Instead, the concurrent remedy doctrine directs that, if a Clean Air Act plaintiff's legal remedies were time barred, its injunctive remedy was time barred as well. Id. at 1015. The Eighth Circuit did not hold and provided no dicta in Otter Tail that district courts lack jurisdiction to grant injunctive relief in timely filed Clean Air Act cases.

         Similarly, in United States v. EME Homer City Generation L.P., the Third Circuit did not limit the EPA's ability to obtain injunctive relief for past violations. 727 F.3d 274, 289 (3d Cir. 2013). Instead, it noted that the EPA “can still obtain an injunction requiring” compliance even five years after the “completion of a facility's modification.” Id. “But when more than five years have passed since the end of construction and the facility has been taken over by new owners and operators, the Clean Air Act protects their reasonable investment expectations.” Id. In this case, Ameren does not allege that the statute of limitations has run, nor that “the facility has been taken over by new owners and operators.” The holding in Homer City does not apply to the facts here.

         Finally, the one district court case that adopts Ameren's interpretation of the statute has been reversed by the Fifth Circuit. United States v. Luminant Generation Co., LLC, No. 3:13-CV-3236-K, 2015 WL 5009378, at *1 (N.D. Tex. Aug. 21, 2015), rev'd in part and remanded sub nom., 905 F.3d 874 (5th Cir. 2018). In Luminant Generation, the Fifth Circuit noted it had “been referred to no authority that § 7477 is meant to displace the enforcement authority provided under § 7413.” 905 F.3d at 888. Citing the broad grant of jurisdiction in § 7413(b), the Fifth Circuit rejected “the district court's broad holding that it simply lacks jurisdiction to consider . . . injunctive relief” requested for a past violation of the Clean Air Act. Id.

         As a result, Ameren's argument concerning injunctive relief is unfounded, and I will deny its Motion for Summary Judgment No. 1.

         II. Ameren Motion for Summary ...


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