864 F. Supp. 2d 1040
D. Colo.2012Background
- Cemex operates a cement plant in Lyons, Colorado, and modified the plant from 1997-1999; the government alleges PSD/NNSR preconstruction permit violations due to these modifications.
- Cemex obtained five construction permits in 1998 addressing some emissions but not the kiln changes, and later received a Title V operating permit in 2000.
- Cemex allegedly failed to disclose kiln modifications during preconstruction/operating permit processes, despite advice to obtain PSD permits for the changes.
- The government filed suit in January 2009 under the Clean Air Act, seeking civil penalties and injunctive relief for PSD/NNSR/operating-permit issues; Cemex asserts statute of limitations and laches defenses.
- The court analyzes (i) accrual and tolling of PSD/NNSR violations, and (ii) whether Title V permits can be challenged for deficiencies arising from preconstruction failures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual and continuing violation under PSD/NNSR | Cemex modified the kiln; violations accrue at completion, not ongoing | PSD/NNSR violations are ongoing if noncompliance continues | Genuine factual dispute; tolling may apply; not barred at summary judgment |
| Equitable tolling for concealment | Government alleges Cemex concealed changes, triggering tolling | Concealment insufficient or not pleaded | Tolling is contested factually; not entitled to summary judgment on tolling |
| Title V violation from deficient operating permit | Operating permit incomplete because preconstruction faults not incorporated | Title V violations not triggered by preconstruction omissions; permit shield applies | Cemex entitled to summary judgment on Title V-based claims; claims dismissed to extent relying on Title V deficiency |
| Scope and applicability of permit shield under Title V | Shield may bar government claims | Shield applies but depends on Title V viability | Not reached since Title V-based claims are dismissed; shield not necessary to resolve at this stage |
Key Cases Cited
- National Parks Conservation Ass’n v. Tennessee Valley Authority, 502 F.3d 1316 (11th Cir. 2007) (PSD/NNSR violations can be treated as ongoing or not, depending on context)
- Sierra Club v. Otter Tail Power Co., 615 F.3d 1008 (8th Cir. 2010) (Title V/CAA regimes and permits framework; interpretation of permit requirements)
- Tiberi v. Cigna Corp., 89 F.3d 1423 (10th Cir. 1996) (Continuing wrong and accrual related to concealment)
- Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036 (10th Cir. 1980) (Equitable tolling read into federal statutes of limitation)
- Holmberg v. Am. Nobel, 327 U.S. 392 (U.S. 1946) (Equitable tolling principles)
- United States v. Marine Shale Processors, 81 F.3d 1329 (5th Cir. 1996) (PSD preconstruction permits and standards context)