966 F. Supp. 2d 801
N.D. Ind.2013Background
- EPA and three states sued U.S. Steel alleging Clean Air Act (CAA) violations at three plants; motion to dismiss focuses on Gary Works No. 4 furnace reline performed in 1990.
- U.S. Steel did not obtain a pre-construction NSR permit for the 1990 reline; it obtained a Title V operating permit in 1996. EPA alleges the reline was a "major modification" requiring NSR and BACT and that the Title V permit was therefore defective.
- Claims at issue: Count 1 (NSR/BACT violations) and portions of Count 3 (Title V permit deficiencies tied to the 1990 reline).
- Central procedural question: whether 28 U.S.C. § 2462’s five-year limitation bars EPA’s claims (civil penalties and/or injunctive relief) based on the 1990 events.
- Seventh Circuit decision in Midwest Generation (addressing whether NSR violations are continuing) controls the federal-law analysis and was applied by the court here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2462 bars civil penalties for the 1990 reline | EPA: discovery/continuing-violation doctrines extend limitations; violations continue daily | U.S. Steel: § 2462 five-year bar applies; claims accrued in 1990 | Held: § 2462 bars civil penalties; Midwest Generation rejects continuing federal NSR violation theory; state-SIP continuing-violation theory also rejected for Indiana |
| Whether federal NSR violations constitute a continuing violation | EPA: operating without required permits/BACT is ongoing daily noncompliance | U.S. Steel: violation is one-time at construction/modification completion | Held: Not a continuing violation under 42 U.S.C. § 7475; violation accrues at construction/modification (Midwest Generation) |
| Whether Indiana SIP creates an ongoing duty (i.e., continuing violation under state law) | EPA: Indiana’s SIP “shall apply” BACT language creates ongoing obligation similar to Tennessee | U.S. Steel: Indiana SIP’s language ties BACT to proposed (preconstruction) units; no ongoing duty | Held: Court rejects continuing-violation reading for Indiana SIP; ‘‘shall apply’’ is tied to the preconstruction process, not a freestanding ongoing duty; state-law penalty claims also time-barred |
| Whether § 2462 bars injunctive relief and whether the concurrent-remedy doctrine precludes equitable relief | EPA: injunction is remedial (restore compliance), so § 2462 inapplicable; government may seek equity despite limitations | U.S. Steel: injunction is punitive/forfeiture in effect; concurrent-remedy rule should bar equitable relief when legal remedy is time-barred | Held: § 2462 does not bar remedial injunctions; injunction here is remedial (bring U.S. Steel into compliance); concurrent-remedy doctrine does not bar government equitable enforcement (so injunctive claims may proceed) |
Key Cases Cited
- U.S. v. Midwest Generation, LLC, 720 F.3d 644 (7th Cir. 2013) (rejects continuing-violation theory for federal NSR permitting/BACT obligations)
- National Parks & Conservation Ass’n v. Tenn. Valley Auth., 480 F.3d 410 (6th Cir. 2007) (applied Tennessee SIP language to find ongoing post-construction duties; outlier on continuing-violation issue)
- Sierra Club v. Otter Tail Power Co., 615 F.3d 1008 (8th Cir. 2010) (rejects continuing-violation theory and construes BACT duties as tied to permitting)
- United States v. Telluride Co., 146 F.3d 1241 (10th Cir. 1998) (injunctive relief that restores the environment is remedial, not a penalty under § 2462)
- E.I. du Pont de Nemours & Co. v. Davis, 264 U.S. 456 (1924) (principle that sovereign actions are not subject to time limitations absent clear congressional intent)
- Guaranty Trust Co. v. United States, 304 U.S. 126 (1938) (sovereign immunity from laches and public-policy basis for permitting government equitable enforcement)