United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM & ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE
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.
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.
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
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).
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.
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.
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.
Ameren Motion for Summary Judgment No. 1: Injunctive
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
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).
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.
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.
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.
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.
result, Ameren's argument concerning injunctive relief is
unfounded, and I will deny its Motion for Summary Judgment
Ameren Motion for Summary ...