Petition for Writ of Certiorari — National Parks Conservation Association v. Tennessee Valley Authority (No. 07-867)

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eme Court, U.S.

Supra % a

07-867 JAN2- 2008

No. 07 SeeiCE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

National Parks Conservation Association

and Sierra Club,

Petitioners,

Tennessee Valley Authority,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals for the

Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

George E. Hays*

236 West Portal Ave. #110

San Francisco, CA 94127

(415) 566-5414

* Counsel of Record

William J. Moore, III

1648 Osceola St.

Jacksonville, FL 32204

(904) 685-2172

Michael A. Costa

3848 Sacramento St. #2

San Francisco, CA 94118

(415) 342-0042

Sean H. Donahue

2000 L St., NW #808

Washington, D.C. 20036

(202) 466-2234

Reed Zars

910 Kearney St.

Laramie, WY 82070

(307) 745-7979

Counsel for Petitioners

QUESTIONS PRESENTED

Petitioners filed this Clean Air Act enforcement

action in district court, alleging (in accord with the

position of the Environmental Protection Agency), that

respondent Tennessee Valley Authority (TVA) had

violated the Act by making major modifications to its

coal fired electric generating unit without first

obtaining a permit. The Eleventh Circuit, in a decision

that conflicts with decisions of other Circuits, ruled

that the suit was barred on statute of limitations and

notice grounds. The questions presented are: |

1. Whether petitioners’ claims for civil penalties

under the Clean Air Act’s New Source Review program

were time-barred under 28 U.S.C. 2462, a general

statute of limitations that applies to proceedings for

enforcement of civil fines, penalties, or forfeitures,

2. Whether, assuming the New Source Review

claims for civil penalties were time-barred, petitioners’

claim for injunctive relief was therefore precluded by

operation of the “concurrent remedy” doctrine, and

3. Whether National Parks Conservation Association

(NPCA) and Sierra Club gave inadequate notice of

their New Source Performance Standards claim.

PARTIES TO THE PROCEEDINGS

Petitioners NPCA and Sierra Club were plaintiffs in

the district court and appellants in the court of

appeals. Defendant TVA was appellee in the court of

appeals.

TABLE OF CONTENTS

QUESTION PRESENTED 2... ccc cccccsccees i

PARTIES TO THE PROCEEDING ............ il

TABLE OF AUTHORITIES ................. vill

Oo er ee ee ee 1

eI fk ns PRO AS aR ERE a ee 1

STATUTORY PROVISIONS INVOLVED ....... 1

Se IIE iva -0 Ske a a 6a e oe oa RRS 2

STATEMENT OF THE CASE ................ 4

REASONS FOR GRANTING THE WRIT ...... 13

I. THE WRIT SHOULD BE GRANTED TO

ADDRESS THE WIDESPREAD, DISPARATE,

AND OFTEN ERRONEOUS APPLICATION

OF 28 U.S.C. 2462 IN ENVIRONMENTAL

ENFORCEMENT CASES ............. 13

A. In Applying 28 U.S.C. 2462 in the NSR

Context, the Court Below, like Some

other Lower Courts, Relied on a False

Distinction Between “Construction” and

“Operating Permits. ............ 15

B. The Writ Should Also be Granted to

Clarify the Split Between the Sixth and

the Eleventh Circuit Over the Import of

the Independent BACT Requirement, a

Provision that is Common to All PSD

TIN one Si Vee ds 23

Il. EVEN IF 28 U.S.C. 2462 BARS PETITIONERS’

LEGAL CLAIMS, THE ELEVENTH CIRCUIT'S

RULING BARRING THEIR CLAIMS FOR

INJUNCTIVE RELIEF HAS NO STATUTORY

BASIS AND CONTRAVENES THE

DECISIONS OF THIS COURT .......... 25

Ill. THE ELEVENTH CIRCUITS RULING

DISMISSING PETITIONERS’ NSPS CLAIM

FOR INADEQUATE NOTICE GROUNDS IS

AN UNSUPPORTED RESTRICTION ON

CITIZEN SUITS INCONSISTENT WITH CAA

yy re rl meaner 33

eRe ese HN eS eek cake eeu 35

APPENDIX CONTENTS

Eleventh Circuit Decision (Oct. 4 2007) ......... la

District Court Memorandum Opinion

I ce og ee 32a

District Court Final Order

OSS a TR a Raa ae ee eI 48a

District Court Order on Tennessee Valley Authority

Motion to Dismiss Third Cause of Action (Failure to

Comply With Statutory Notice Requirements)

et: Di ee ee eke ey 50a

District Court Memorandum Opinion on Tennessee

Valley Authority Motion to Dismiss Third Cause of

Action (Failure to Comply With Statutory Notice

Requirements) (Dec. 21, 2005) ............. 52a

District Court Order Amending Judgment Order of

November 29, 2005 (Dec. 8, 2005) ........... 84a

District Court Order on Motion TVA Motion for Partial

Summary Judgment (First and Second Causes of

Action - Statute of Limitation)

ee I 8 er Cis a re ee 89a

District Court Memorandum Opinion on Motion TVA

Motion for Summary Judgment (First and Second

Causes of Action - Statute of Limitation)

CE Ws os 4 Oh St ae pete wed 9la

NPCA’s Notice Letter (Oct. 30, 2000) ........ 133a

Sierra Club’s Notice Letter (Dec. 13, 2000) ....151a

Statutory and ] Provisions

ree Bee oe ae 153a

Clean Air Act

Section 111 (42 U.S:C.§ 7411) ... 266 153a

Section 165 [42 U.S.C. § 7475] ............ 154a

Section 169 [42 U.S.C. § 7479] ............ 155a

Section 171 [42 U.S.C. § 7501] ............ 157a

Section 172 [42 U.S.C. § 7602] ............ 158a

Section 173 [42 U.S.C. § 7503] ............ 159a

Section 304 [42 U.S.C. § 7604] ............ 160a

Administrative Materials

Ng es deg us we ee 163a

MM oc vicccceaccscecvecd 163a

UE gc ckncvaccedaned 165a

EE, ccs cae Cec ansuweown 165a

50 Fed. Reg. 34804 (Aug. 28, 1985) ........ 167a

Alabama State Implementation Plan (“SIP”)

Alabama Air Pollution Control Commission

(“AAPCC”) Reg. 16.1.1 Types of Permits

RE SAR TES see ele Ere 0S pole patente batepa 175a

Alabama State Implementation Plan (“SIP”)

Alabama Air Pollution Control Commission

CAAPCC ) Mee. 16.382 GOTH ...... 2.20: 177a

Alabama State Implementation Plan (“SIP”)

Alabama Air Pollution Control Commission

(“AAPCC”) Reg. 16.4.2 ot ARG aD di”. 178a

Alabama State Implementation Plan (“SIP”) Ala.

Admin. Code Rule 335-3-14-.01 (current) .... 179a

Alabama State Implementation Plan (“SIP”) Ala.

Admin. Code Rule 335-3-14-.04 (current) .... 180a

Alabama State Implementation Plan (“SIP”) Ala.

Admin. Code Rule 335-3-14-.05 (current) .... 180a

vll

TABLE OF AUTHORITIES

CASES

3M v. Browner,

17 F.84 1453 @).C. Cir. 1900 «5 oo 6 ceed 14

A-C Reorganization Trust v. E.I. DuPont De Nemours,

968 F. Supp. 423 (E.D. Wis. 1997) adi b ebd esac te 26

Alaska Department of Environmental

Conservation v. Environmental Protection

Agency, 540 U.S. 461 (2004) ............ 4,5,19

Bartholet v. Reishauer A.G..,

953 F.2d 1073 (7th Cir. 1902) ............2.. 20

Catellus Dev. Corp. v. L.D. McFarland Co.,

910 F. Supp. 1509 (D. Or. 1995) ............. 26

Conley v. Gibson,

See Sh Ae SR iv nt esc kecdieasaeeeeee 20

Cope v. Anderson,

S51 DR AIO? 5 ook eee 29

Detroit Edison Co. v. Michigan Dep't of Envti. Quality,

39 F. Supp. 2d 875 (E.D. Mich. 1999) ......... 14

Environmental Defense v. Duke Energy Corp.,

127 B Ce ER TO og 2 kad 2

Federal Election Commission v. Christian Coalition,

965 F. Supp. 66 (D:D.C. 1907) .. 2.20... 02a es 31

Vill

Gruca v. U.S. Steel Corp.,

£06 F.2d 1968 Gd Cir. 19074) ... 2... cc ccccces 31

Holmberg v. Armbrecht,

Aree, OOD ccc ccc cc ccc ccc ccccsce 3, 32

Hughes v. Reed,

46 F.2d 435 (10™ Cir. 1931) ................. 29

Idaho Conservation League v. Boer,

CV-04-250-S-BLW, slip op.

ES 14

In re Tennessee Valley Authority,

2000 WL 1358648, 9 E.A.D. 357 (EPA ALJ Sep 15,

2000), motion to dismiss denied by, TVA v. United

States EPA, 278 F.3d 1184 (11th Cir. 2002), opinion

withdrawn in part by, Tennessee Valley Authority

v. Whitman, 336 F.3d 1236 (11 Cir. 2003), cert.

denied,541 U.S. 1030, 124 S. Ct. 2096 (2004) .. 34

Lefebvre v. Central Maine Power Co.,

7 F. Supp. 2d 64 (D. Me. 1998) .............. 26

Mecker v. Lehigh Valley Railroad Co.,

ES 26

Nat R.R. Passenger Corp. v. Morgan,

ee L. . 16

Newell Recycling Co. v. United States EPA,

mee Poe 208 Clr BOO)... cc ccc cc cece 15

New York v. Niagara Mohawk Power Corp.,

263 F. Supp. 2d 650 (W.D.N.Y. 2003) ......... 14

National Parks Conservation Association v. TVA,

No. 3:01-CV-71, 2005 U.S. Dist. LEXIS 44601 (E. D.

Tenn. March 11, 2005), rev'd, 480 F.3d 410 (6" Cir.

SE snd dc keaccbueciiscuwaunebetaee 26

NPCA v. TVA, 480 F.3d 410, 419 (6th Cir. 2007), rehzg

denied, 2007 U.S. App. LEXIS 21725 ..... passim

Ogden Projects, Inc. v. New Morgan Landfill Co.,

911 F. Supp. 863, 876 (E.D. Pa. 1996) ........ 14

Russell v. Todd,

ee ED 5 . ko bo ocd es odessa eee ue

SEC v. Rind,

991 F.2d 1486 (9th Cir.),

cert. denied, 510 U.S. 963 (1993) ............ 26

Sterra Club v. Dayton Power & Light,

Slip Op. 2:04-CV-905

(S.D. Ohio August 12, 2005) ............. 13, 14

Sierra Club v. TVA,

430 F.3d 1337 (11th Cir. 2005) .............. 25

Tennessee Valley Authority v. Whitman,

336 F.3d 1236 (11" Cir. 2003), cert. denied,

541 U.S. 1030, 124 S. Ct. 2096 (2004) ........ 10

TVA v. United States EPA,

278 F.3d 1184 (11th Cir. 2002), opinion withdrawn

in part by, Tennessee Valley Authority v. Whitman,

336 F.3d 1236 (11™ Cir. 2003), cert. denied,541 U.S.

cS ee es Bh 10

Union Elec. v. EPA..,

an ed lea 4

United States v. AM Gen. Corp.,

oe Ly Fe ae 22

United States v. American Electric Power

Service Corp., 137 F. Supp. 2d 1060

ewe he 13, 17, 25

United States v. Banks,

256 9.28 OIG GT” Cir. 1907) ...... 2. ccc wee 27

United States v. Brotech Corp.,

2000 WL 1368023 (E.D. Pa. 2000) ........... 14

United States v. Campbell Soup Co.,

1997 WL 258894 (E.D. Cal. 1997) ........ 14, 23

United States v. Duke Energy Corp.,

278 F. Supp. 2d 619 (M.D.N.C. 2003), affd 411 F.3d

539 (4th Cir. 2005), rev'd on other grounds in

Environmental Defense v. Duke Energy Corp., 127

ee ee ca etn 6s 13, 18

United States v. Hobbs,

736 F. Supp. 1406 (E.D. Va. 1990) ........... 25

United States v. Illinois Power Co.,

245 F. Supp. 2d 951 (S.D. Ill. 2003) ....... 14, 16

United States v. Loutsiana-Pacific Corp.,

682 F. Supp. 1122 (D. Colo. 1987) ............ 14

United States v. Marine Shale Processors,

81 F.3d 1329 (5th Cir. 1996) ............ 18, 17

United States v. Murphy Oil USA, Inc.,

143 F. Supp. 2d 1054 (W.D. Wis. 2001) ....... 26

United States v. Ohio Edison Co.,

2003 U.S. Dist. LEXIS 2357

CR ES 14

United States v. Perry,

451 Foe 1090 @ Ce. 1970)... .... 26

United States v. Reaves,

923 F. Supp. 1530 (M.D. Fla. 1996) .......... 15

United States v. Southern Ind. Gas & Elec. Co.,

2002 WL 1760752 (S.D. Ind. 2002) ........... 14

United States v. Telluride Co.,

884 F. Supp. 404, (D. Colo. 1995),

rev d, 146 F.3d 1241 (10 Cir. 1998) .......... 26

United States v. Telluride Co.,

146 F308 1241 (10? Cir. 1908) ............... 27

United States v. Titanium Metals Corp.,

Slip. Op. CV-S-98-682 (D. Nev. Sept. 21, 1998) . 14

United States v. Westvaco Corp.,

144 F. Supp. 2d 439 (D. Md. 2001) ........ 14, 25

Xil

United States v. Windward Properties, Inc.,

821 F. Supp. 690 (N.D. Ga. 1993) ............ 26

STATUTES

65. ks od 6 Aw KWo owe oo passim

ee ee Pere ry 1

goss vcvccw ose casutdavces 5

I vig aww ois 4 we oe oe ed 5

I an 5s sod ive 0 db aio bd A oo ee OE 4

oh bi ois kde 8 eee oe eee ae 37

IE a oie oo o-b-a bam Oete es tees 5, 17

a) kL 5, 9,17

WIPE og cy ook bcc cs swe soaceviee 6

WO gcc nce cs ccicnesasesnande 8,18

I 5. vc nace soceescuten 5, 6

I ooo ca el co bcamce «se eae passim

ADMINISTRATIVE MATERIALS

Po ee | ee 18, 23

Pee Ss eee. 4, 33

a suis ee bw voce ane 6

ME SOMO... «oo osc ccc cscs seduees 6

50 Fed. Reg. 34804 (Aug. 28, 1985) .......... 7,21

57 Fed. Reg. 32250 (July 21, 1992) ............. 18

Alabama State Implementation Plan (SIP) Alabama

Air Pollution Control Commission (AAPCC) Reg.

16.1.1 Types of Permits (1979) ............ 7, Si

Alabama State Implementation Plan (SIP) Alabama

Air Pollution Control Commission (AAPCC) Reg.

xill

SE hs a oS eR Ee in eee eae eee 6

Alabama State Implementation Plan (SIP) Alabama

Air Pollution Control Commission (AAPCC) Reg.

Pook ow ke eee ee ee 6

Alabama State Implementation Plan (SIP)

Ala. Admin. Code Rule 335-3-14-.01

IRI ESS Sie OE lat 6, 7, 20

Alabama State Implementation Plan (SIP)

Ala. Admin. Code Rule 335-3-14-.04

ee) ee ts Sie 8, 23

Alabama State Implementation Plan (SIP)

Ala. Admin. Code Rule 335-3-14-.05

SSS GOES Relat Sa EL PaO Pog Re Ea OR eR 8

Tennessee State Implementation Plan (SIP)

Tenn. Comp. R. & Regs. § 1200-3-9-.01(1)(e) .. . 24

OTHER AUTHORITIES

ec ts ani be Ck 26

1 Pomeroy’s Equity Jurisprudence

MRM etch au ke et ce ag an 4, 29, 30, 32

X1V

OPINIONS BELOW

An opinion of the district court is reported at 413 F.

Supp. 2d 1282 and is reproduced in the Appendix

(App.) at page 32a. Other relevant district court

opinions and orders are included in the Appendix. The

court of appeals’ opinion is reported at 502 F.3d 1316

and reproduced at App. 1a.

JURISDICTION

The court of appeals entered judgment on October 4,

2007. This Court’s jurisdiction is invoked under 28

U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Title 28 U.S.C. 2462 provides that “an action, suit or

proceeding for the enforcement of any civil fine,

penalty, or forfeiture, pecuniary or otherwise, shall not

be entertained unless commenced within five years

from the date when the claim first accrued.”

(Emphasis added). Other pertinent statutes and

regulations are reproduced in the Appendix at App.

153a-i80a.

INTRODUCTION

The 1970 and 1977 amendments to the Clean Air Act

(CAA) exempted existing stationary sources from

various core requirements of the Act — including the

New Source Performance Standards (NSPS), the

Prevention of Significant Deterioration (PSD), and the

Nonattainment New Source Review (NNSR) programs

— unless and until the owners of those sources engaged

in a “modification” of the facilities. See Environmental

Defense v. Duke Energy Corp., 1278. Ct. 1423, 1429

(2007). In this CAA citizen suit, petitioners NPCA and

Sierra Club allege that TVA, beginning in 1982, ended

the grandfathered status for Unit 5 of its Colbert plant

with a $57 million, 13 month modification. (Doc 80

{| 22). Because TVA is operating Unit 5 out of

compliance with these programs, petitioners allege

that TVA is illegally emitting tens of thousands of tons

of sulfur dioxide (SO,), nitrogen oxides (NO,), and

particulate matter (PM) each year. (Doc 80 9 3).

Petitioners seek an injunction to bring TVA’s

operations into compliance with these three CAA

programs, thereby significantly reducing TVA’s

harmful emissions.

Despite finding that the doctrine of sovereign

immunity bars petitioners from obtaining any relief at

law, the Eleventh Circuit held that 28 U.S.C. 2462, a

limitations provision that applies only to actions for

“the enforcement” of civil fines, penalties, or

forfeitures, also barred petitioners’ equitable claims for

injunctive relief. In so doing, the Eleventh Circuit held

directly contrary to a decision by the Sixth Circuit

involving these same parties. In NPCA v. TVA, 480

F.3d 410 (6th Cir. 2007), reh’g denied, 2007 U.S. App.

LEXIS 21725, the Sixth Circuit recognized that under

the CAA, citizens may bring an action for a source

owner's failure to have a permit as as a condition of

operations and that TVA is violating such a

requirement by operating without a PSD permit. The

Sixth Circuit also held that operating without a BACT

emission limit is separately actionable. Such an

operational violation “manifests itself anew each day a

plant operates.” Jd. at 419. Thus, the Sixth Circuit

held that 28 U.S.C. 2462 does not bar a CAA citizen

suit regarding TVA’s PSD violations in Tennessee. The

Eleventh Circuit’s decision not to follow the Sixth

Circuit’s lead stemmed from a fundamental failure to

recognize that NSR permits, although they must be

obtained prior to construction, actually govern

operations and that operating without them violates.

the Act, as manifested through the Alabama SIP.

Even if the Eleventh Circuit was correct in holding

that section 2462 barred petitioners’ penalty claims, it

contravened the plain language of that section by

ruling that it also barred petitioners’ injunctive relief

claims. The Eleventh Circuit’s judicial redrafting of

section 2462 supplants the CAA’s carefully crafted

remedial scheme that allows citizens to secure

injunctions of ongoing violations. The Eleventh Circuit

based its ruling on the rarely-applied concurrent

remedy doctrine, and its sweeping application of that

doctrine contravenes the settled precedent of this

Court. See Russell v. Todd, 309 U.S. 280 (1940). The

concurrent remedy doctrine is a narrow exception to

the general rule that statutes of limitations do not

apply in equity, Holmberg v. Armbrecht, 327 U.S. 392

(1946). The concurrent remedy doctrine applies when

a court is sitting in “concurrent” equitable jurisdiction,

but the doctrine does not apply to claims brought in

“exclusive” equitable jurisdiction. Claims for injunctive

relief arise only in exclusive equitable jurisdiction,

even when legal remedies are also available. 1

Pomeroy’s Equity Jurisprudence (Pomeroy’s), § 138-39

(5th ed. 1941). Because petitioners’ claims for

injunctive relief arose in exclusive equitable

jurisdiction, they could not be barred under the

concurrent remedy doctrine.

Finally, in a decision that conflicts with the

applicable regulation, 40 C.F.R. 54.3(b), the Eleventh

Circuit upheld the dismissal of petitioners’ claim

regarding TVA’s NSPS violations at Colbert on notice

grounds. The court below erred, however, because it

did not base its assessment of the adequacy of the

notice letter on an evaluation of the pleadings.

STATEMENT OF THE CASE

Statutory and Regulatory Background. Congress

adopted the Clean Air Act Amendments of 1970 “to

guarantee the prompt attainment and maintenance of

specified air quality standards.” Alaska Department of

Environmental Conservation v. Environmental

Protection Agency, 540 U.S. 461, 469 (2004)(ADEO.

To achieve this goal, the 1970 legislation directed EPA

to develop national technology-based standards

intended to “force” the development of new and better

control technologies. See Union Elec. v. EPA., 427 U.S.

246, 257 (1976). The New Source Performance

Standards (NSPS) require new and “modified” sources

to meet technology-based standards developed by EPA

and applicable to entire categories of equipment. 42

U.S.C. 7411.

The 1970 Amendment also directed EPA to establish

National Ambient Air Quality Standards (NAAQS) for

air pollutants at a level requisite to protect human

health and the environment. 42 U.S.C. 7409. States

are authorized to establish state implementation plans

(SIPs) to achieve and maintain the NAAQS. /d. 7410.

In 1977, Congress comprehensively amended the

Act, adding two new permitting programs. One, the

statutory Prevention of Significant Deterioration (PSD)

program, 42 U.S.C. 7470-7479, ensures that air quality

in areas meeting the NAAQS (attainment areas) will

not degrade. ADEC, 540 U.S. at 470-71. Under the

PSD program, administered in many states, including

Alabama, through the SIP, a new or modified facility

cannot obtain a permit unless it demonstrates that it

will not cause or contribute to a violation of a NAAQS.

42 U.S.C. 7475(a)(3). Also, the permit must include an

emission limit, known as Best Available Control

Technology (BACT). 42 U.S.C. 7475(a)(4), 42 U.S.C.

7479(3). The CAA defines BACT not as “technology,”

but rather as an emission limitation established by the

State through a “case-by-case” process. 42 U.S.C. §

7479(3).

The other permitting program Congress added in

1977, the nonattainment new source review (NNSR)

program, is the analog to the PSD program in areas*

failing to meet the NAAQS (nonattainment areas). In

these areas, a facility cannot obtain a permit unless it

obtains “offsets” to ensure that overall, the facility will

not cause an increase in emissions. 42 U.S.C.

7503(a)(1). Furthermore, Congress requires such

facilities to comply with the lowest achievable emission

rate (LAER), which like BACT, is not defined in terms

of technology, but rather as an emission limitation. 42

U.S.C. 7503(a)(1) and 7501(3). When referred to

together, PSD and NNSR permits are known as “new

source review” (NSR) permits.

Each of these programs have “modification”

provisions requiring that if an owner or operator

makes a physical change to a unit that results in an

emissions increase, the unit becomes subject to the

program’s requirements. See 40 C.F.R. § 60.14 (NSPS

modification); Alabama Air Pollution Control

Commission (AAPCC) Reg. 16.3.2(b)(4) (1979)

(definition of “major modification” in the NNSR

provision that applied at the time), App. 177a; AAPCC

Reg. 16.4.2(b)(1)(definition of “major modification” in

the PSD provision applicable at the time), App. 178a.

As discussed below, Petitioners allege that TVA’s

1982-83 rehabilitation project at Colbert 5 caused

emissions increases for sulfur dioxide (SO,), nitrogen

oxides (NO,), and particulate matter (PM). The parties

agree that at the time of the project, the plant was

located in a non-attainment area for SO,. (Doc 80 § 19,

Doc 83 4 19). Accordingly, the NNSR program governs

Colbert 5’s emissions of SO,, while the PSD program

governs the emissions of NO,, and PM. In addition, the

1982-83 rehabilitation project was a reconstruction and

modification of Unit 5, making the unit subject to the

NSPS regulations for all three pollutants.

Certain consequences followed from the triggering of

each of the programs. Under the NSPS program, a

modified source becomes subject to a set of emission

limitations, such as a requirement to control SO,

emissions by 90 percent. See 40 C.F.R. § 60.43Da(a).

Under the PSD program as implemented in

Alabama, modified facilities must obtain an “Air

Permit” containing PSD requirements, Ala. Admin.

Code Rule 335-3-14-.01(1)(a), App. 179a, and it is

illegal to operate without such an Air Permit even if a

source began operating without one. Ala. Admin. Code

Rule 335-3-14-.01(1)(c), App. 180a.

Significantly, even though what are now called “Air

Permits” in Alabama were known, prior to 1985, as

“construction permits” and “operating permits,” the

Alabama SIP prohibited sources from operating

without either. Under pre-1985 SIP Rule 16.1.1, App.

175a-76a, one could not operate a source without an

operating permit, one could not obtain an operating

permit without a construction permit, and one was

required to obtain a construction permit for every

modification. Thus, the change of the permitting

names in 1985' did nothing to change the fundamental

requirement that upon making a major modification,

one could not operate without a permit containing NSR

operational requirements — in particular, emission

limits.

Not only does the Alabama SIP prohibit TVA from

“presently operating” Unit 5 without an Air Permit

related to the 1982-83 modification, but also it

prohibits TVA from operating without the emission

limitation known as BACT:

_ A major modification shall apply BACT for each

pollutant subject to regulation under the CAA for

* See June 22, 2005 Declaration of Ronald Gore, Chief of the

Air Division for the Alabama Department of Environmental

Management, explaining that prior to 1985, there were three

types of air quality permits in Alabama: construction permits,

temporary permits to operate, and permits to operate. Doc 104 —

Part 5(Exhibit C) — 4). In 1985, however, Alabama replaced that

tripartite system with a system in which all permits became Air

Permits. /d. Furthermore, all existing permits to construct and

permits to operate became “Air Permits” by operation of law. /d.

18. See also 50 Fed. Reg. 34804 (August 28, 1985)(EPA FR notice

approving the change).

which it would result in a significant net emissions

increase at the source. ...

Ala. Admin. Code Rule 335-3-14-.04(9)(c), App. 180a.

With respect to the NNSR permits, the Clean Air Act

makes clear that such permits govern not only initial

construction, but also plant operation: nonattainment

plan provisions “shall require permits for the

construction and operation of new or modified major

stationary sources anywhere in the nonattainment

area.” 42 U.S.C. 7502(c)(5) (emphasis added).? Not

surprisingly then, although the substantive

requirements for permits in the Alabama SIP differ for

PSD and NNSR, compare Ala. Admin. Code Rule

335-3-14-.04 (PSD) with Rule 335-3-14-.05 (NNSR), the

requirements discussed above regarding the necessity

of an Air Permit in order to operate after a

modification apply to both PSD and NNSR permits.

Factual Background. TVA is the nation’s largest

public power company. (Doc 116— Fact 9 50).° It owns

and operates 11 coal-fired power plants consisting of 59

units (Ud 4 51), including one in Colbert County,

Tuscumbia, Alabama known as the Colbert Plant. (/d.

§ 2). The Colbert Plant combusts coal in five boilers.

This case involves Unit 5. Ud. J 4), which has no SO,

control equipment. (Cd. § 49). Unit 5 emits a

* Prior to the 1990 CAA Amendments, Pub. L. 101-549 (Nov.

15, 1990), this provision was codified at 42 U.S.C. 7506(b)(6).

* “Toc” citations are to the documents in the District Court

record. Unless otherwise indicated, the exposition of the facts in

this section is undisputed based upon Petitioners’ recitation of

proposed undisputed facts in its brief in support of its motion for

partial summary judgment on applicability (Doc 116) and TVA’s

response (Doc 152).

Sats

tremendous amount of air pollution. For instance, in

2003, Unit 5 emitted over 35,000 tons of SO, and over

5,850 tons of NO.. (Doc 177 — pg 6). Congress

considers a power plant to be a “major emitting

facility” if it emits over 100 tons of any air pollutant.

42 U.S.C. § 7479.

Construction of Unit 5 began in 1961 and the unit

was designed to produce 500 megawatts (MW) of

electricity. (Doc 116 § 11). The boiler was

inadequately designed, however, (/d. 7 12), and a

number of significant problems became evident very

early in the unit’s life. Ud 7% 13). By 1978, TVA

decided to address and correct Unit 5’s original design

deficiencies. (/d. 915). R. N. Kennedy, Chief of TVA’s

Power Supply Planning Branch concluded in 1979 that

unless TVA undertook a “complete rehabilitation” of

Unit 5, TVA could not have kept the unit in service for

long and would have been forced to put the unit “in

shutdown mode.” (/d. 7 25). The Unit 5 project cost

TVA $57 million and kept the unit out of service for 13

months, increasing the unit’s pre-project capacity by

100 megawatts. /d. 44 19-23. Because of this capacity

increase, Petitioners allege that the project increased

emissions on an hourly and annual basis, thereby

triggering applicability of the NSR and NSPS

programs.(Doc 80 94 71, 78, 83). Petitioners also

allege that T'VA’s operation of Unit 5 violates a number

of NSPS requirements including the requirement to

control SO, with a scrubber. /d. 44 85-91.

Procedural Background. In 1999, EPA found that

TVA had undertaken 14 projects at its coal-fired fleet

that violated NSR or NSPS requirements, or both, and

consequently, EPA issued TVA an Administrative

Compliance Order. EPA's 1999 finding covered the

Unit 5 project addressed in this case. See TVA v.

United States EPA, 278 F.3d 1184 (11th Cir. 2002),

opinion withdrawn in part by, TVA v- Whitman, 336

F.3d 1236 (11th Cir. 2003), cert. denied, 541 U.S. 1030,

124 S. Ct. 2096 (2004).

Concerned that EPA’s chosen enforcement option

might fail, NPCA sent out a notice letter on October 30,

2000. App. 133a. Sierra Club followed with a notice

letter on December 13, 2000, App. 15la. The two

groups filed their complaint in this case in February

2001, and amended it twice. (Docs 1, 10, and 80).

EPA’s enforcement effort against TVA suffered a

major blow when the Eleventh Circuit found EPA’s

Administrative Compliance Order unconstitutional on

procedural due process grounds. Tennessee Valley

Authority v. Whitman, 336 F.3d 1236 (11 Cir. 2003),

cert. denied, 541 U.S. 1030 (2004). EPA had chosen to

issue TVA an administrative order rather than sue

TVA in federal court because of concerns by the

Department of Justice that the Constitution prohibits

the government from suing itself. 278 F.3d at 1193-94.

Consequently, though the Eleventh Circuit invited to

EPA to take action against TVA in district court, EPA

has refused, leaving petitioners to press on alone.

While the EPA-TVA litigation proceeded through the

courts, this case was stayed for almost three years

(Docs 22 and 43). Once this case began moving again,

the district court granted Petitioners’ motion for

partial summary judgment on standing, and TVA did

not appeal that ruling. (Doc 202). Petitioners also

moved for partial summary judgment to establish

applicability of the NSPS and NSR programs. (Doc

107). TVA moved to dismiss the NSR-related claims on

statute of limitations grounds (Doc 99) and the NSPS-

related claims on notice grounds. (Doc 96). In a series

of overlapping orders and opinions, the district court

ultimately granted TVA’s motions and denied

Petitioners’ motion for partial summary judgment on

applicability.

Petitioners then appealed the district court’s rulings

regarding the statute of limitations, notice, and

applicability. The Eleventh Circuit affirmed the

district court’s rulings on statute of limitations and

notice and found that it had no jurisdiction to review

the district court’s denial of the applicability motion.

App. 31a.

More specifically, the Eleventh Circuit ruled that

regardless of TVA’s sovereign immunity, petitioners

could not obtain civil penalties for TVA’s alleged PSD

and NNSR violations because those claims first

accrued in 1982-83. App. lla. The court rejected

petitioners’ argument that TVA’s operation without an

Air Permit related to the 1982-83 modification

constituted a current violation of the SIP for three

reasons. First, the court stated that it was not clear

that NPCA and Sierra Club had alleged a violation of

the current SIP rules. App. 20a. Second, the court

found that there was no indication that Alabama

intended the 1985 SIP rule changes, converting

“construction permits” and “operating permits” into Air

Permits, to be retroactive. App. 20a. Finally, the court

noted that TVA has an “operating permit” from the

State of Alabama. Therefore, the Eleventh Circuit

rejected petitioners’ contention that TVA is operating

without an “Air Permit” as an impermissible “collateral

attack” on a permit. App. 21a.

The Eleventh Circuit also rejected petitioners’

argument that the Alabama SIP imposes an ongoing

eB,

obligation upon TVA to operate Unit 5 with BACT

emission limits, regardless of the permitting scheme.

App. 18a. The court took note of the Sixth Circuit’s

ruling on the issue, but recognized a distinction

between the Alabama and Tennessee SIP rules on this

point because the Tennessee SIP provided a

mechanism for obtaining a construction permit after

construction had commenced, and the court could not

find a similar provision in the Alabama SIP. App. 19a.

The Eleventh Circuit also specifically rejected the

Sixth Circuit’s conclusion that the Tennessee BACT

regulation by itself created an ongoing obligation to

apply BACT. App. 18a, n. 2.

The Eleventh Circuit then went on to rule that since

28 U.S.C. 2462 barred petitioners’ legal claims,

petitioners’ claims for injunctive relief were barred

under the concurrent remedy doctrine. App. 24a-25a

(“Thus, we have considered whether and to what

extent the five-year statute of limitations and the

concurrent remedy doctrine bar the legal and equitable

New Source Review claims National Parks and Sierra

Club assert in this case, and we conclude that the

district court correctly dismissed those claims.”).

Finally, the court ruled that petitioners’ NSPS claim

was properly dismissed because their pre-suit notice

letter was impermissibly overbroad. App. 29a-30a.

REASONS FOR GRANTING THE WRIT

I THE WRIT SHOULD BE GRANTED TO

ADDRESS THE WIDESPREAD, DISPARATE,

AND OFTEN ERRONEOUS APPLICATION OF

28 U.S.C. 2462 IN ENVIRONMENTAL

ENFORCEMENT CASES.

The court of appeals held that 28 U.S.C. 2462

applies to bar Petitioners’ NSR claims because they did

not file suit within five years of when TVA commenced

construction on the modification. App. 1la.

Faced with almost the same parties and an almost

identical fact pattern (involving a different TVA plant,

Bull Run) the Sixth Circuit found otherwise. NPCA v.

TVA, 480 F.3d 410, 419 (6th Cir. 2007) (“TVA’s :

subsequent and continuing failures (1) to apply BACT

and (2) to obtain a construction permit containing

emissions limitations under the Tennessee SIP’s PSD

provisions are actionable.”), reh’g denied, 2007 U.S.

App. LEXIS 21725.

This split between the Sixth and Eleventh Circuits

reflects a larger conflict involving dozens of decisions

about the proper application of 28 U.S.C. 2462 in the

context of environmental enforcement. Cases holding

that 28 U.S.C. 2462 would not bar the imposition of a

penalty in the CAA permitting context include United

States v. Marine Shale Processors, 81 F.3d 1329,

1355-57 (5th Cir. 1996); United States v. Duke Energy

Corp., 278 F. Supp. 2d 619, 651 (M.D.N.C. 2003), affd

411 F.3d 539 (4th Cir. 2005), rev'd on other grounds in

Environmental Defense v. Duke Energy Corp., 127 S.

Ct. 1423 (2007); United States v. American Elec.

Power Serv. Corp., 137 F. Supp. 2d 1060, 1066 (S.D.

Ohio 2001); Sierra Club v. Dayton Power & Light,

2:04-CV-905, slip op. at 5 (S.D. Ohio August 12, 2005);

United States v. Ohio Edison Co., 2003 U.S. Dist.

LEXIS 2357 (S.D. Ohio Jan. 17, 2003);* Detroit Edison

Co. v. Michigan Dep't of Envt. Quality, 39 F. Supp. 2d

875, 877 (E.D. Mich. 1999); Idaho Conservation

League v. Boer, CV-04-250-S-BLW, slip op. at 15 (D.

Idaho Sept. 27, 2004); United States v. Titanium

Metals Corp., CV-S-98-682, slip. op. at 1-2 (D. Nev.

Sept. 21, 1998).

Cases finding that 28 U.S.C. 2462 bars the

assessment of a civil penalty when construction

commenced more than five years before the complaint

was filed include United States v. Westvaco Corp., 144

F. Supp. 2d 439, 443 (D. Md. 2001) ; New York v.

Niagara Mohawk Power Corp., 263 F. Supp. 2d 650,

661 (W.D.N.Y. 2003); United States v. Illinois Powér

Co., 245 F. Supp. 2d 951, 957 (S.D. Ill. 2003); United

States v. Southern Ind. Gas & Elec. Co., 2002 WL

1760752, at *4 (S.D. Ind. 2002); United States v.

Brotech Corp., 2000 WL 1368023, at *3 (E.D. Pa. 2000);

United States v. Campbell Soup Co., 1997 WL 258894,

at *2 (E.D. Cal. 1997); Ogden Projects, Inc. v. New

Morgan Landfill Co., 911 F. Supp. 863, 876 (E.D. Pa.

1996); United States v. Louisiana-Pacitic Corp., 682 F.

Supp. 1122, 1130 (D. Colo. 1987).

The question of the proper application of 28 U.S.C.

2462 has also arisen outside the CAA permitting

context. See, e.g., 3M v. Browner, 17 F.3d 1453 (D.C.

Cir. 1994)(28 U.S.C. 2462 applies to violations of the

Toxics Substances Control Act and bars the assessment

of a penalty for violations that occurred outside the

* Dayton Power, Ohio Edison, and AEP were al! decided by

the same district court judge, Edmund A. Sargus, Jr.

limitations period, but not violations that occurred

within the period); Newell Recycling Co. v. United

States EPA, 231 F.3d 204 (5 Cir 2000)(under Toxics

Substances Control Act, 28 U.S.C. 2462 did not bar

imposition of civil penalty even though excavation and

stockpiling of PCB laden soil occurred more than 5

years before complaint because stockpiled soil

remained); United States v. Reaves, 923 F. Supp. 1530

(M.D. Fla. 1996)(ruling, in enforcement action under

the Clean Water Act and the Rivers and Harbors Act,

that 28 U.S.C. 2462 did not bar the civil penalties for

defendant’s unpermitted discharge of dredged or fill

materials into wetlands as long as the fill remained).

Because of the plethora of litigation involving the

application of 28 U.S.C. 2462 and the varied,

inconsistent results, the Court should grant review of

the Eleventh Circuit’s decision, which, as shown below,

was erroneous .

A. InApplying 28 U.S.C. 2462 in the NSR Context,

the Court Below, like Some other Lower Courts,

Relied on a False Distinction Between

“Construction” and “Operating” Permits.

The court of appeals, like some other federal courts,

relied upon a fundamentally mistaken legal framework

for evaluating the applicability of 28 U.S.C. 2462 in

cases involving alleged failures to obtain permits

required under the NSR programs.

The central error underlying these decisions is a

false distinction between “preconstruction” permits and

“operating” permits. The Eleventh Circuit here, and

other courts that have barred the imposition of civil

penalties in NSR cases, have reasoned that: (1) PSD

permits must be obtained before construction; (2) the

Act specifically prohibits construction without that

it) 33

permit; (3) the illegal “act” is therefore the

commencement of construction without a permit, and

(4) the statute of limitations begins to accrue at the

commencement of construction. These courts also

acknowledge that if “operation” without a permit was

illegal, then there would be no statute of limitations

problem. For example, the court below stated

acknowledged that there would be no statute of

limitations problem if a source commits “a discrete

violation every time it operates.” App. 17a. As the

Sixth Circuit put it, the violation “manifests itself

anew each day.” 480 F.3d at 419.° See also Illinois

Power, 245 F. Supp. 2d at 957 (“Preconstruction

permits have a finite existence while operational

permits can be ongoing violations.”).

The Eleventh Circuit erred because it concluded that

if a permit governs construction, it does not also govern

operation, or in other words, while it is illegal to

commence construction without a preconstruction

permit, it is not illegal to operate without one. The

Fifth Circuit recognized the fallacy of this thinking:

“(t]he CAA statutory scheme contemplates at least two

different types of air permits unhappily named

‘preconstruction permits’ and ‘operating permits, with

confusion easily resulting from the fact that

preconstruction permits often include limits upon a

* This Court has recognized that a statute of

limitations will not bar a claim when a series of

repeated, wrongful events has occurred within the

limitations period. See Nat? R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002)(“Each discrete

discriminatory act starts a new clock for filing charges

alleging that act.”).

source’s operations.” Marine Shale, 81 F.3d 1355-56.

With this in mind, the Marine Shale court found the

notion that 28 U.S.C. 2462 would bar the imposition of

civil penalties because the unpermitted construction

had begun more than five years before the complaint

“frivolous.” Jd. 1357. See also American Elec. Power.,

137 F. Supp. 2d at 1066 (It is “illogical to conclude that

a defendant may only be held liable for constructing a

facility, rather than operating such facility, without

complying with the [PSD] permit requirements.”).

Review of the plain and unambiguous language of

the CAA’s NSR program reveals that NSR permits,

although properly obtained prior to construction,

actually govern source operation and are required “as

a condition of operations,” 42 U.S.C. 7604(£)(4), or

more colloquially, “operating permits.” The CAA’s text

emphatically demonstrates that Congress intended

PSD permits under 42 U.S.C. 7475 to restrict on-going

operations post-construction. Section 7475(a)(1)

provides that PSD permits must contain “emission

limitations.” Section 7475(a)(4) specifies that PSD

permits must require facilities to utilize “best available

control technology” (BACT) to reduce their air

emissions once in operation, and BACT is definedas an

“emission limitation.” 42 U.S.C. 7479(3). Section

7475(d) provides that PSD permits must include

elaborate, specific limitations on air pollution

emissions from operating facilities. Section 7475(e)

further specifies provisions that PSD permits must

have for monitoring the emissions of operating

facilities. Similarly, with respect to NNSR permits,

Congress requires that SIPs contain provisions that

“require permits for the construction and operation of

new or modified major stationary sources anywhere in

the nonattainment area.” 42 U.S.C. 7502(c)(5)

(emphasis added).® The statutory text therefore leaves

no doubt that PSD permits govern source operation.’

The Eleventh Circuit’s basic misunderstanding of

the CAA permitting regime rested in part on the

panel’s myopic focus on 42 U.S.C. 7604(a)(3). That

subsection authorizes citizens to take action “against

any person who proposes to construct or constructs any

new or modified major emitting facility without a

permit.” (emphasis added) However, contrary to the

court’s inference that only unlawful construction is

actionable, subsection (a)(1) expressly authorizes

citizens to take action against anyone who is violating

“an emission standard or limitation,” and that phrase

is specifically defined to include “any requirement to

obtain a permit asa condition of operation.” 42 U.S.C.

7604(f)(4) (emphasis added). Thus, the Eleventh

Circuit’s approach defies the Act’s plain language.

Requirements to obtain NSR_ permits are

6 See Duke 278 F. Supp. 2d at 651 (“[Blecause the PSD

permitting provisions provide both preconstruction obligations

and subsequent obligations on operations, Duke Energy’s alleged

violation of failing to undergo the PSD permitting process does not

terminate upon the completion of construction activity.”).

7 That NSR permits constrain source operation, and not just

construction, is further confirmed by the addition to the Clean Air

Act in 1990 of the Title V operating permit program. Title V

permits consolidate all CAA permitting requirements into one

place and do not create new substantive requirements. See Final

Operating Permits Rule Preamble, 57 Fed. Reg. 32250 (1992).

Thus, a source cannot obtain operational BACT or LAER emission

limitations through the Title V permitting process. It must obtain

an NSR permit first. Furthermore, NSR permits, once issued,

never expire, unless rescinded. See 40 C.F.R 52.21(w).

“requirements to obtain permits as a condition of

operation” because, as shown above, these permits

must contain conditions that govern operation. Indeed,

the BACT or LAER provisions in NSR permits only

take effect once a source has begun operation.

Subsection 7604(f)(4) applies to “any” requirement to

obtain a permit as a condition of operation. Such

requirements can be stated in a number of ways. Such

a requirement might be worded: “thou shall not

operate without permit X,” or one might also say, “if

thou has made a major modification, thou shall obtain

permit X.” Both forms require permit X to be obtained,

and if permit X must contain operational restrictions

(and NSR permits must), then both forms are

“requirements to obtain permits as a condition of

operations.”

Thus, it does not matter whether the NSR program

is implemented through a two-step permitting process

such as the one now in Tennessee (where the result of

the extensive process for establishing BACT, see

ADEC, 540 U.S. 461, is first incorporated into a

“preconstruction” permit and later poured over to an

“operating” permit) or whether the program is.

implemented though a one-step permitting process

such as the one now in Alabama, where the owner need

only apply for an Air Permit. Under either scenario,

the bottom line is that the owner of a new or modified

source must obtain these permits, and these permits

must contain operational restrictions. Thus, operating

without such a permit is violating a requirement to

have a permit as a condition of operation.

Not surprisingly, the prohibition against operation

without an NSR permit is actually explicitly stated in

the Alabama SIP that applies in this case. Ala. Admin.

Code Rule 335-3-14-.01(1)(a), App. 179a, provides,

inter alia, that any person altering equipment that

may increase the emission of air contaminants must

obtain an “Air Permit.” Subsection (c) provides that

any equipment described in Subsection (a)(and this

would include sources like Unit 5 that have had

modifications that have increased emissions) that is

“presently operating . . . without an Air Permit may

continue to operate ... only if its owner or operator

obtains an Air Permit.” App. 180a. Thus, one of the

remedies Petitioners seek through this suit is for TVA

to apply for and obtain an “Air Permit” from the State

of Alabama for the 1982-85 modification.

The Eleventh Circuit disregarded the import of this

section because it was not clear that Petitioners had

alleged a violation of the current rules. Review of the

Second Amended Complaint shows, however, that

plaintiffs alleged the following:

Since 1982, TVA has operated the Colbert Plant

without a PSD permit .... Accordingly, TVA has

violated and continues to violate the Act and the

Alabama SIP by making this “modification” and

operating the Colbert Plant power plant without

obtaining a PSD permit.

(Doc 80 9] 71-72 (emphasis added)). See also id. 77

79-80. Clearly, the complaint spells out that Citizens

are alleging a violation of the current SIP. The

complaint is not the place to set out specific statutory

or regulatory citations. See Bartholet v. Reishauer

A.G., 953 F.2d 1073, 1078 (7 Cir. 1992)(“Instead of

asking whether the complaint points to the appropriate

statute, a court should ask whether relicf is possible

under any set of facts that could be established

consistent with the allegations.” Conley v. Gibson, 355

U.S. 41, 45-46 (1957).”).

The Eleventh Circuit also ruled that the current

SIP’s restriction on operating without an Air Permit

does not cover TVA’s modification because “[t]here is

no indication that the 1985 amendments were to apply

retroactively, reviving TVA’s obligation to obtain a

preconstruction permit specifying emission

limitations.” App. 20a-2la These 1985 amendments

eliminated the construction permit/operating permit

dichotomy and made all permits “Air Permits” by

operation of law. See 50 Fed. Reg. 34804 (Aug. 28,

1985). The court of appeals focused on this point

because it noted that the Tennessee SIP contains a

specific provision that allows sources who have skipped

out of the preconstruction permitting process to go

back and get a preconstruction permit once operation

has begun, but it could not find an analogous provision

in the Alabama SIP. App. 19a.

In fact, review of the pre-1985 rules shows it has

never been legal for TVA to operate without a

“construction permit” containing NSR requirements.

Under the pre-1985 rules, an owner had to obtain a

Permit to Construct for each modification. Rule

16.1.1(a), App. 175a. Furthermore, an owner was not

allowed to operate after the modification without a

Permit to Operate, and one could not obtain a Permit

to Operate without first obtaining a Permit to

Construct. Rule 16.1.1(b), App. 176a. Finally, the

same rule provided that no one “presently operating .

. without a Permit to Operate, may continue to

operate.” /d. Thus, if an owner was operating a

source without a Permit to Operate associated with a

modification, the rules clearly contemplated that the

owner could not continue to operate without first

obtaining a Permit to Construct. The 1985 change

simply changed the names of the required permits from

“Permit to Construct” and “Permit to Operate” to “Air

Permit.”

The Eleventh Circuit also asserted that because TVA

has an operating permit, this case is an invalid

collateral attack on that permit. App. 21a. As the

review of the regulations above shows, an owner must

obtain a permit for each modification. TVA never

obtained, or attempted to obtain, a permit for the 1982

modification. Thus, Petitioners are not attacking TVA

for the permit that it has. They are attacking TVA for

the permit it lacks. By mentioning “collateral attack,”

the Eleventh Circuit implies that Petitioners somehow

missed out on a permitting process where they should

have raised their concerns. In the case cited by

Eleventh Circuit, United States v. AM Gen. Corp., 34

F.3d 472 (7th Cir. 1994), there had been an opportunity

for the plaintiff there, EPA, to weigh in on the issues of

concern through a permitting process. Here, TVA has

never applied for a permit for the challenged

modification. Thus, there was never any “process” in

which Petitioners could have participated.

As shown above, NSR permits, although they must

be obtained prior to the commencement of construction,

are permits that govern operation or are, in short,

“operating permits.” In Alabama, and everywhere else

in the United States, once the requirement to obtain

one of these permits attaches, one cannot operate

without one. Consequently, claims for penalties for

operation (without an NSR permit) within five years of

the filing of the complaint, are not barred by 28 U.S.C.

2462. Clarification of these principles, recognized in

some circuits and rejected by the court below and by

some other federal courts, is essential to the effective

enforcement of the Clean Air Act’s critically important

protections for public health and welfare.

B. The Writ Should Also be Granted to Clarify the

Split Between the Sixth and the Eleventh

Circuits Over the Import of the Independent

BACT Requirement, a Provision that is

Common to All PSD Programs.

The Sixth Circuit found that regardless of the

Tennessee SIP’s permitting rules, the SIP

independently prohibits TVA from operating the

facility there (Bull Run) without the emission

limitation known as BACT. 480 F.3d at 418-19. The

Sixth Circuit further found that TVA’s current

operations violate this requirement, meaning 28 U.S.C.

2462 would not bar action for T'VA’s illegal operations

over the five years prior to the filing of the complaint.

Id. Although the Alabama SIP contains essentially the

same provision, see Ala. Admin Code

335-3-14-.04(9)(c), App. 180a, the Eleventh Circuit

ruled otherwise, App. 18a-19a.

That both the Tennessee and Alabama SIPs contain

this provision is unsurprising given that the federal

version of the PSD regulation aiso contains the same

provision. See 40 C.F.R 52.21(j). This very issue has

therefore been addressed in other decisions. See, e.z.,

United States v. Campbell Soup Co., 1997 WL 258894

(E.D. Cal. 1997)(consistent with the 6 Circuit

approach).

The Eleventh Circuit’s decision rests on the

perceived absence in the Alabama SIP of a provision

present in the Tennessee SIP, namely Tenn. Comp. R.

& Regs. § 1200-3-9-.01(1)(e). This provision allows an

owner to obtain a “construction” permit after a source

has already been constructed without that permit. As

explained above, the Alabama SIP has always had a

similar regulatory mechanism. The existence of either

mechanism, however, is irrelevant. As the Sixth

Circuit correctly ruied, the BACT requirement in the

SIP stands on its own:

This provision, by its own terms, creates an ongoing

obligation to apply BACT, regardless of what terms

a preconstruction permit may or may not contain.

Even if TVA had obtained a construction permit that

did not require BACT, such an approval “shall not

relieve any owner or operator of the responsibility to

comply fully with applicable provisions under [the

Tennessee SIP] and any other requirements under

local, State, or Federal law.” Td. §

1200-3-9-.01(4)(a)(5). Because the SIP requires that

modified sources apply BACT, TVA may not rely on

any preconstruction approval to justify its

post-construction failure to comply with this

provision. ...

480 F.3d at 418 (emphasis added).

As in Tennessee, the BACT requirement in Alabama,

and indeed in the federal PSD regulation, stands alone.

Under the language of the SIP, each day TVA operates

Unit 5 without BACT emission limits is a new violation

that falls within the five year period established by 28

U.S.C. 2462. Thus, this statute of limitations is no bar

to this action.

Il. EVEN IF 28 U.S.C. 2462 BARS PETITIONERS’

LEGAL CLAIMS, THE ELEVENTH CIRCUITS

RULING BARRING THEIR CLAIMS FOR

INJUNCTIVE RELIEF HAS NO STATUTORY

BASIS AND CONTRAVENES THE DECISIONS

OF THIS COURT.

Even if the Eleventh Circuit was correct that 28

U.S.C. 2462 would bar petitioners’ claims for civil

penalties, to the extent they had any,” the Eleventh

Circuit misapplied this statute and contravened the

decisions of this Court by ruling that section 2462 bars

petitioners’ claims for injunctive relief.

The Eleventh Circuit acknowledges that section

2462, by its “plain language .. . applies only to claims

for legal relief; it does not apply to equitable remedies.”

App. 22a. Therefore, the Eleventh Circuit should have

concluded, as did the court in United States v. Hobbs,

736 F. Supp. 1406, 1407 (E.D. Va. 1990), that section

2462 does not bar claims for injunctive relief. See also

American Elec. Power, 137 F. Supp. 2d at 1067 (“The

statute, by its terms, applies only to suits for civil

penalties.”); Westvaco, 144 F. Supp.2d at 443 n. 2

8 In another case between TVA and Sierra Club, the Eleventh

Circuit ruled that in CAA enforcement cases, TVA has sovereign

immunity from the imposition of civil penalties. Sierra Club v.

TVA, 430 F.3d 1337, 1353-57 (11th Cir. 2005). In light of that

decision, petitioners elected not to appeal the district court’s

decision that TVA has not waived sovereign immunity from civil

penalties in this case. See App. 89a and App. 10a. Thus, the only

reason the question of civil penalties is relevant here is because

the district court and court of appeals have applied 28 U.S.C.

2462, a limitations provision that by its express terms applies to

actions for civil penalties and says nothing about actions for

injunctive relief, to bar citizens’ claims for injunctive relief.

(“The five-year statute of limitations applies to claims

for civil penalties only.”); United States v. Murphy Oil

USA, Inc., 143 F. Supp. 2d 1054, 1087 (W.D. Wis. 2001)

(same); Lefebvre v. Central Maine Power Co., 7 F.

Supp. 2d 64, 68 (D. Me. 1998)(section 2462 is

inapplicable to a RCRA citizen suit seeking equitable

relief); A-C Reorganization Trust v. E.I. DuPont De

Nemours, 968 F. Supp. 423, 428 (E.D. Wis. 1997);

Catellus Dev. Corp. v. L.D. McFarland Co., 910 F.

Supp. 1509, 1518 (D. Or. 1995). See also Meeker v.

Lehigh Valley Railroad Co., 236 U.S. 412, 423

(1915)(predecessor to 24620; United States v. Perry,

431 F.2d 1020, 1025 (9th Cir. 1970); SEC v. Rind, 991

F.2d 1486, 1492-93 (9th Cir.1993), ceri. denied, 510

U.S. 963 (1993).®

The Eleventh Circuit’s judge-made .expansion of

Section 2462 runs counter to congressional intent. The

legislative history of the Act shows that Congress

intended that the relief available through citizen suits

should be co-extensive with that available through

government enforcement. SeeS. Rep. No. 91-1196, p.

38 (1970)(“‘There should be no inconsistency in the

enforcement of such standards.”).’° The language of

° But see United States v. Telluride Co., 884 F. Supp. 404,

409-10 (D. Colo. 1995), rev'd, 146 F.3d 1241 (10" Cir. 1998);

United States v. Windward Properties, Inc., 821 F. Supp. 690, 693

(N.D. Ga. 1993); National Parks Conservation Association v. TVA,

No. 3:01-CV-71, 2005 U.S. Dist. LEXIS 44601, at *26-28 (E. D.

Tenn. March 11, 2005), rev’d, 480 F.3d 410 (6 Cir. 2007).

10 Accordingly, since both the Tenth and Eleventh Circuits

have held that claims for injunctive relief should not be barred,

neither should actions brought by citizens. See United States v.

Banks, 115 F.3d 916, 919 (11th Cir. 1997); Telluride Co., 146 F.3d

at 1244-49.

the Act itself further shows that Congress viewed the

availability of injunctive and civil penalty relief to be

distinct. See 42 U.S.C. 7413 (In this section governing

EPA enforcement, the Act states: “The Administrator

shall, as appropriate... commence a civil action for a

permanent or temporary injunction, or to assess and

recover a civil penalty ... or both.”); see also 42 U.S.C.

7604(a)(In the citizen suit section, the Act states: “The

district courts shall have jurisdiction . . . to enforce

such an emission standard or limitation . . . and to

apply any appropriate civil penalties.”). Despite these

provisions discussing the availability of injunctive

relief, the only limitations provision discussed in the

Act is Section 2462,"' which again, specifically refers

only to penalty actions. Had Congress wished to time-

bar separate actions or claims for injunctive relief, it

would have done so. Thus, the Eleventh Circuit

invented a limit on CAA remedies that has no basis in

law and runs counter to Congress’s intent to allow

citizens to enforce the Act’s protections for public

health and welfare.

The basis for the Eleventh Circuit’s improper

judicial redrafting of section 2462 was the concurrent

remedy doctrine, a doctrine rarely addressed by this

Court since the advent of the modern federal rules of

civil procedure and a doctrine that this Court has

never applied so as to limit injunctive remedies

expressly provided for by Congress as part of a

comprehensive statutory scheme like the Clean Air

Act. Even where it properly applies, the concurrent

remedy doctrine in narrow in scope, covering claims

arising in concurrent equitable jurisdiction. See

1) See 42 U.S.C. 7413.

Russell v. Todd, 309 U.S. 280, 287 (1940).

The Eleventh Circuit should not have invoked the

concurrent remedy doctrine to supplant Congress’s

carefully crafted remedial scheme, one that allows

citizens to secure injunctions of ongoing violations of

the Act. But the court of appeals compounded its error

by proceeding to adopt a sweeping version of the

concurrent remedy doctrine that is inconsistent with

the doctrine’s traditional tenets. Under the Eleventh

Circuit’s approach, the doctrine applies whenever “an

action at law or equity could be brought on the same

facts.” App. 24a. Under the proper approach,

application of the doctrine turns not on whether the

same facts can make out a claim at law or in equity,

but rather whether the facts make out a claim arising

in concurrent, rather than exclusive, equitable

jurisdiction. This Court explained this distinction in

Russell v. Todd, 309 U.S. 280 (1940):

In federal courts of equity the doctrine of laches was

early supplemented by the rule that when the

question is of lapse of time barring relief in equity,

such courts, even though not regarding themselves

as bound by state statutes of limitations, will

nevertheless, when consonant with equitable

principles, adopt and apply as their own, the local

statute of limitations applicable to the equitable

causes of action in the judicial district in which the

case is heard.

Even though there is no state statute applicable to

similar equitable demands, when the jurisdiction of

the federal court ig concurrent with that at law, or

the suit is brought in aid of a legal right, equity will

withhold its remedy if the legal right is barred by

the local statute of limitations. It thus stays its hand

in aid:of a legal right which, under the Rules of

Decision Act, would be unenforcible [sic] in the

federal courts of law as well as in the state courts.

But where the equity jurisdiction is exclusive and

is not exercised in aid or support of a legal right,

state statutes of limitations barring actions at law

are inapplicable, and in the absence of any state

statute barring the equitable remedy in like cases,

the federal court is remitted to and applies the

doctrine of laches as controlling.

Id. at 288-89 (emphasis added, citations omitted). See

also Cope, 331 U.S. at 463-64 (finding that even though

the case arose in equity, the statute of limitations

barred the claim because “the scope of the relief

sought and the multitude of parties sued [gave] equity

concurrent jurisdiction to enforce the legal obligation

[there] asserted”)(emphasis added); Hughes v. Reed, 46

F.2d 435, 438 (10" Cir. 1931)(“Where the jurisdiction

of law and equity areconcurrent, the applicable statute

of limitations of the state governs, and not the

equitable doctrine of laches. There is some confusion

in the authorities upon the point, growing out of a

failure to distinguish a purely equitable action against

corporate officers, as to enforce a trust, and a legal

action seeking money damages for a breach of

statutory or common-law duty, brought in equity for

convenience. Jt is only in the Iatter case that

concurrent jurisdiction exists.” [emphasis added))..

As explained in Pomeroy’s at § 139, “concurrent”

equity jurisdiction “embraces all those civil cases in

which the primary right, estate, or interest of the

complaining party sought to be maintained, enforced,

or redressed is one which is cognizable by the Jaw, and

in which the remedy conferred is of the same kind as

that administered, under the like circumstances, by

the courts of Jaw— being ordinarily a recovery of money

in some form.” The existence of concurrent equitable

Jurisdiction is founded on the inadequacy of a

concurrent legal remedy, i.e., a remedy “of the same

general nature” as an equitable remedy, which may be

applied to supplement a legal remedy and provide

complete relief. Jd. at §§ 173, 175, 139. “The very

definition of . . . [concurrent equitable] jurisdiction

assumes that the remedies administered under a given

state of circumstances, by equity and by the law, are

substantially the same, — recoveries of money, or of

specific tracts of land, or of specific chattels.” Jd. at §

173 (emphasis added).'”

On the other hand, “exclusive” equity jurisdiction

was exercised when the remedy was one equity courts

alone could confer, even where legal remedies were

also available for the same violation. Jd. at § 138.

Cases in which the remedy sought and obtained is

one which equity courts alone are able to confer

must, upon any consistent system of classification,

belong to the exclusive jurisdiction of equity, even

though the primary right, estate, or interest of the

party is one which courts of law recognize, and for

the violation of which they give some remedy. Thus

a suit to compel the specific performance of a

contract falls under the exclusive jurisdiction of

equity, although a legal right also arises from the

contract, and courts of law will give the remedy of

damages for its violation.

2 See Pomeroy’s at §§ 185-188 (examples of actions falling

within concurrent jurisdiction, including contribution, exoneration

and accounting).

Ta.

Injunctive relief, including injunctive relief

addressing nuisances, id. at § 221la, was always

considered part of an equity court’s “exclusive

jurisdiction” and not “concurrent jurisdiction.” Jd. at §§

136 (“remedies granted . .. of a kind which are peculiar

to equity courts [include] . . . injunction”), 110, 170,

172, 221, 221a; see also Federal Election Commission

v. Christian Coalition, 965 F. Supp. 66, 71 (D.D.C.

1997)(‘injunctive relief is based solely on equity’s

‘exclusive jurisdiction”); Gruca v. U.S. Steel Corp., 495

F.2d 1252, 1258 (8d Cir. 1974)Gurisdiction is

“exclusive” and not “concurrent” when the remedy

sought cannot be achieved at law).

The critical mechanism for distinguishing between

exclusive and concurrent equity jurisdiction has never

been an examination of the substantive right forming

the basis of the action because exclusive equitable

jurisdiction may exist where an underlying right is

purely legal, such as a case premised on a statutory

right (like the case here).

The remedies particular to equity are not confined

to cases in which the primary right of the -

complaining party, whatever be its kind, is

equitable; they are given in numerous classes of

instances where such a right ... is wholly legal.

Thus a legal estate in land may be protected by

the exclusively equitable remedy of injunction

against nuisances.... Again, the particular fact

or event which gives rise to the right to such a

remedy, may also be the occasion of a legal

remedy and a legal remedial right simultaneous

with the equitable one. This is especially true

with reference to fraud, mistake, and accident.

Baty

Fraud may at the same time be the occasion of the

legal remedy of damages and of the equitable

relief of cancellation. These two cases cannot,

however, be regarded or treated as belonging to

the concurrent jurisdiction; such a mode of

classification could only be _ productive of

confusion.

Pomeroy’s at § 138. Thus, to distinguish between

exclusive and concurrent equitable jurisdiction, one

assesses whether the remedy involved “is given by

courts of equity alone,” in which case the action falls

under exclusive jurisdiction, not concurrent

jurisdiction. Jd.

Had the court of appeals properly applied the

decisions of this Court, it would have concluded that

the concurrent remedy doctrine has no application.

The doctrine only operates when there are two

remedies, one at law and one within concurrent equity

jurisdiction, which are “of the same general nature” in

terms of the relief to be provided. See, e.g., Pomeroy’s

at § 175. Not only does the injunctive relief remedy not

fall within concurrent equity jurisdiction, but also it is

a remedy whoily different in nature.

Given that petitioners’ claims for injunctive relief

arise in exclusive equitable jurisdiction, neither the

concurrent remedy doctrine nor the statute of

limitations apply. See Holmberg, 331 U.S. at 463-64.

Accordingly, petitioners ask this Court to grant review

so that TVA’s illegal and harmful operation of Colbert

5 without an NSR permit will not continue to go

unchecked.

ll. THE ELEVENTH CIRCUITS RULING

DISMISSING PETITIONERS’ NSPS CLAIM

FOR INADEQUATE NOTICE GROUNDS IS AN

UNSUPPORTED RESTRICTION ON CITIZEN

SUITS INCONSISTENT WITH CAA

REGULATIONS.

In finding petitioners’ pre-suit notice inadequate, the

Eleventh Circuit imposed restrictions not required by

law. As the Eleventh Circuit noted, App. 26a, EPA

regulations specify that notice letters must provide

“sufficient information to permit the recipient to

identify” the specific standard being violated, the

violative activity and the responsible persons, the date

and location of the alleged violation, and the name and

address of the person giving the notice. 42 U.S.C.

54.3(b). The Eleventh Circuit acknowledged that

petitioners’ notice letters provided all of this

information, but because it found the notice

requirement must be “strictly construed” to give the

alleged violator the opportunity to fix the problem, the

court faulted the letter as overbroad. App. 29a.

The Eleventh Circuit erred because although it

acknowledged that the notice letter must be reviewed

de novo, the court never compared the notice letter

with the complaint. It is true that the notice letter

made the broad assertion that TVA had violated all of

Subpart Da’s requirements since 1982, App. 29a, but

the complaint makes exactly the same assertion. (Doc

80 { 91). More importantly, petitioners had a good

faith belief when they issued the notice letter that

because TVA denied, and indeed denies to this day,

that it is subject to Subpart Da, that TVA was violating

all of subpart Da’s requirements. Petitioners also

based this good-faith belief on the fact that EPA made

the very same allegation when it issued its

administrative order to EPA regarding the same

modification in 1999. See Jn re TVA, 2000 WL 1358648

(see text preceding fn19], 9 E.A.D. 357, 378 (EPA ALJ

Sep 15, 2000), motion to dismiss denied by, TVA v.

United States EPA, 278 F.3d 1184 (11™ Cir. 2002),

opinion withdrawn in part by, TVA v. Whitman, 336

F.3d 1236 (11th Cir. 2003), cert. dented,541 U.S. 1030

(2004).

During the course of discovery, petitioners learned,

and acknowledged, that although much of what they

had alleged in the notice letter was true, ze., that TVA

had become subject to Subpart Da for all pollutants

and had never complied with the emission limits for

SO, or any of the recordkeeping and reporting

requirements, TVA actually had been complying, at

times, with Subpart Da’s emission limitations for NOx

and particulate matter. Nevertheless, because

petitioners had a good-faith basis for the allegations in

the notice letter, and because the notice letter’s

allegations matched those in the complaint, petitioners’

NSPS claim should not have been dismissed.

Accordingly, petitioners seek review to clarify that the

adequacy of notice letters must be evaluated based on

the pleadings and whether plaintiffs had a good-faith

basis for the allegations in the notice letter when the

complaint was filed.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

George E. Hays* Sean H. Donahue

236 West Portal Ave. #110 2000 L St., NW #808

San Francisco, CA 94127 Washington, D.C. 20036

(415) 566-5414 (202) 466-2234

William J. Moore, ITI Reed Zars

1648 Osceola St. 910 Kearney St.

Jacksonville, FL 32204 Laramie, WY 82070

(904) 685-2172 (307) 745-7979

Michael A. Costa

3848 Sacramento St. #2

San Francisco, CA 94118

(415) 342-0042

* Counsel of Record Counsel for Petitioners

APPENDIX

UNITED STATES COURT OF APPEALS,

ELEVENTH CIRCUIT

NATIONAL PARKS CONSERVATION

ASSOCIATION

AND SIERRA CLUB,

Petitioners,

TENNESSEE VALLEY AUTHORITY,

Respondent.

No. 06-10729.

Entered October 4, 2007.

George E. Hays, San Francisco, CA, Reed Zars,

Laramie, WY, William J. Moore, LII, Jacksonville,

FL, for Plaintiffs-Appellants.

Maria Victoria Gillen, Frank H. Lancaster, Harriet

A. Cooper, TVA, Knoxville, TN, for TVA.

Michael James Grode, Jr., Turner Environmental

Law Clinic, Atlanta, GA, Michael J. Myers, Albany,

NY, Robert D. Tambling, Montgomery, AL, F.

William Brownell, Henry V. Nickel, Makram B.

Jaber, Hunton & Williams, LLP, Washington, DC, P.

Steph idiere, III, Michael D. Freeman, Steven G.

McKinney, Balch & Bingham, LLP, Birmingham,

AL, for Amici Curiae.

Before EDMONDSON, Chief Judge, and TJOFLAT

and GIBSON, United States Circuit Judge for the

Eighth Circuit, sitting by designation.

GIBSON, Circuit Judge:

National Parks Conservation Association, Inc.,

and the Sierra Club appeal from the district court's

orders dismissing with prejudice their action against

the Tennessee Valley Authority brought under the

citizen suit provision of the Clean Air Act, 42 U.S.C. §

7604(a). National Parks and the Sierra Club claim that

TVA violated the Act in connection with work it

performed in 1982-83 on a coal-fired boiler at its power

plant in Colbert County, Alabama. National Parks and

the Sierra Club assert three claims against TVA; the

district court denied their motion for partial summary

judgment and granted TVA's motion to dismiss two of

the claims as barred by the statute of limitations and

the remaining claim for failure to provide proper

pre-suit notice. We affirm.

The Tennessee Valley Authority is a federal

agency that operates over forty electricity generating

facilities, including the Colbert Plant in Tuscumbia,

Alabama. The Colbert Plant uses five coal-fired boiler

units to generate electricity. The process involves

burning coal to create steam and passing the steam

through a turbine, which drives a generator that

produces electricity. National Parks and the Sierra

Club claim that the Colbert Plant's operations emit

harmful quantities of pollutants, specifically nitrogen

oxide, particulate matter, and sulfur dioxide. Although

not the subject of this suit, they have similar

complaints about TVA's operations at several other

power plants located throughout Tennessee, Alabama,

and Kentucky.

The allegations in this lawsuit are limited to

only one of the Colbert Plant's boilers, Unit 5. Colbert

Unit 5 has been in operation since 1965. In a project

that began in 1982 and was completed in 1983, TVA

overhauled Unit 5 to restore its lost capacity, extend

its life, and reduce or eliminate forced outages. The

project cost over $50 million and took three years from

planning to implementation. At all relevant times,

TVA has operated Unit 5 under an operating permit

issued by the Alabama Department of Environmental

Management pursuant to its EPA-approved State

Implementation Plan; the permit prescribes emission

limitations, and the Department monitors and tests

the Unit's emissions to ensure compliance. TVA did

not obtain construction permits before undertaking the

project, however, and National Parks and the Sierra

Club claim that this omission, among others, violates

the Clean Air Act.

The goal of the Clean Air Act is “to protect and

enhance the quality of the Nation's air resources so as

to promote the public health and welfare and the

productive capacity of its population.” 42 U.S.C. §

7401(b)(1). To achieve this goal, the Act employs a

program of “cooperative federalism” under which the

EPA develops “National Ambient Air Quality

Standards” for various pollutants. Syerra Club v.

United States EPA, 315 F.3d 1295, 1300, 1296 (11th

Cir.2002). Each state then formulates a “State

Implementation Plan,” which limits emissions for

specific sources of pollution and which must be

approved by the EPA, to attain and maintain those

standards. /d.; see also42 U.S.C. §§ 7409, 7410. The

Act differentiates between “existing sources” of

pollution and “new sources,” and these two types of

sources are regulated differently. New York v. United

States EPA, 413 F.3d 3, 18 (D.C.Cir.2005). Thus,

TVA's obligations with respect to the project and its

subsequent operation of Unit 5 depend on how Unit 5

is classified under the Act.

“New sources” of pollution include both newly

built units and plants as well as existing ones that

have been “modified” in a way that increases their

emissions, according to the definitions set forth in the

Act and EPA regulations. See, eg.,42 U.S.C. §

7411(a)(2), (4). Unlike existing sources, new sources

and modified sources are subject to the New Source

Performance Standards, 42 U.S.C. § 7411, 40 C.F.R.

Part 60, which impose stringent emission limitations

and other requirements such as monitoring and

testing. New sources and modified sources also are

subject to New Source Review,’ which requires the

‘ New Source Review encompasses two regulatory programs.

The “Prevention of Significant Deterioration” program governs

sources located in areas that are in attainment of the EPA's air

quality standards for the pollutant in question or where there is

insufficient information to evaluate whether the standards have

been met. See New York v. EPA, 413 F.3d at 12; 42 U.S.C. §§

7470-7482. The “Nonattainment New Source Review” program

governs sources located in areas that have not attained the air

quality standards for the pollutant in question. See New York v.

EPA, 413 F.3d at 12; 42 U.S.C. §§ 7501-7515. Count I of National

Parks' and the Sierra Club's complaint alleges that Unit 5's

emissions of nitrogen oxide and particulate matter subject TVA to

proponent of a proposed construction or modification

to complete various requirements before the project

can proceed, such as obtain construction permits and

determine emission controls to be installed in the

source. See42 U.S.C. § 7475(a); Tenn. Valley Auth. v.

Whitman, 336 F.3d 1286, 1244 nn.12-13 (11th

Cir.2003). The New Source Performance Standards

and New Source Review programs are implemented

through EPA-approved State Implementation Plans.

See New York v. EPA, 413 F.3d at 11-14.

“Existing sources,” in contrast, are plants, units,

and other sources that were built before the EPA

proposed otherwise applicable standards. 42 U.S.C. §

7411(a)(6), (2). While they are subject to several sets of

regulations including State Implementation Plans,

they have “grandfathered” status and are not subject

to New Source Review or the New Source Performance

Standards. New York v. EPA, 413 F.3d at 13. This

system is intended to achieve environmental controls

without unduly hampering economic growth. /d.

In 1999, the EPA charged TVA with modifying

several of its units in violation of the New Source

Review programs; Colbert Unit 5 was among these

units. The EPA found TVA guilty in administrative

proceedings and ordered it to come into compliance

the Prevention of Sigmificant Deterioration program

requirements. Count II alleges that its emissions of sulfur dioxide

subject TVA to the Nonattainment New Source Review program

requirements. The distinction between these two programs does

not affect our analysis, so we refer to the counts collectively as the

“New Source Review” claims.

with the Act, but this Court refused to enforce the

order after concluding that the administrative

proceedings were unconstitutional. Whitman, 336 F.3d

at 1260. The EPA has not pursued prosecution of TVA

for these alleged violations.

After the EPA's action failed, National Parks

and the Sierra Club sent TVA notice of their intent to

sue for Clean Air Act violations at the Colbert Plant

and nine other power plants located throughout

Tennessee, Alabama, and Kentucky. Various suits

were filed against TVA under the Act's citizen suit

provision, 42 U.S.C. § 7604(a). Two of these were filed

in the district court below, the present suit and a

separate a suit filed by the Sierra Club and the

Alabama Environmental Council. That separate suit

alleged that TVA's operations at the Colbert Plant

repeatedly violated the 20% opacity limitation, an

emission limitation for particulate air pollution

established by Alabama's State Implementation Plan,

during the five-year period from 1997 to 2002. Sierra

Club v. Tenn. Valley Auth., 430 F.3d 1337, 1339-41

(11th Cir.2005). The district court granted summary

judgment to TVA, holding that there could be no

violations because, although the Plant's emissions

exceeded the 20% opacity limitation, they were “within

the forgiveness zone” of the Alabama Department of

Environmental Management's 2% de minimis rule. /d.

at 1339. This Court reversed in part, reasoning that

the 2% de minimis rule had not been approved by the

EPA and thus was not part of Alabama's State

Implementation Plan. /d. at 1346-47. We affirmed the

dismissal of the plaintiffs' claim for civil penalties as

barred by TVA's sovereign immunity but remanded for

reconsideration of whether the plaintiffs were entitled

to injunctive and declaratory relief for claims arising

from the Plant's violations of the opacity limitation. Jd.

at 1357.

Meanwhile, the instant suit was pending in the

district court. National Parks and the Sierra Club

allege three counts, all relating to the 1982-83 project

and subsequent operation of Colbert Unit 5. The first

two counts allege that TVA modified Unit 5 in

violation of the New Source Review programs by

failing to obtain construction permits, failing to

perform air quality analysis and install emission

controls, failing to obtain offsets, and operating the

Unit as illegally modified. The third count alleges that

the Unit's pollutant emissions after the modification

exceeded EPA limitations and failed to comply with

other requirements of the New Source Performance

Standards. National Parks and the Sierra Club seek

civil penalties and declaratory and injunctive relief on

all counts. They do not dispute that Colbert Unit 5 at

all relevant times had an operating permit issued by

the Alabama Department of Environmental

Management, which monitored compliance as required

by Alabama's State Implementation Plan for existing

sources. To be viable, all three counts require the

1982-83 project to be characterized as a “major

modification,” triggering the EPA's New Source

Review preconstruction permitting requirements and

the emission limitations established by the New

Source Performance Standards described above. TVA

contends that the 1982-83 project was not a major

modification and, in any event, would fall under the

exception for routine maintenance, repair, and

replacement.

Without deciding this issue, the district court

made a series of rulings against National Parks and

the Sierra Club, each of which they now challenge on

appeal. First, the district court denied National Parks'

and the Sierra Club's motion for partial summary

judgment on the issue of whether the 1982-83 project

involving Colbert Unit 5 was a “modification,”

reasoning that the parties dispute several factual

issues including how to measure the changes in

emissions and whether the work was _ routine

maintenance and repair according to industry

standards. Next, the district court granted in part

TVA's motion for partial summary judgment on the

two New Source Review counts. The court held that

the claims for civil penalties were barred on statute of

limitations grounds, 28 U.S.C. § 2462, where the suit

was filed in 2001, well over five years after the work

on Unit 5 took place; the alleged violations of

preconstruction requirements were not continuing

violations; and the concurrent remedy doctrine barred

the claims for injunctive and declaratory relief. In a

third order, the district court granted TVA's motion to

dismiss National Parks’ and the Sierra Club's New

Source Performance Standards claim for failure to

comply with the pre-suit notice requirements of 42

U.S.C. § 7604(b). The court held that the plaintiffs’

notice letter lacked specificity where it broadly alleged

nearly 20 years' worth of daily violations of nearly all

of the potentially applicable regulations, when in fact

the New Source Performance Standards violations

ultimately alleged in the complaint were confined to

one pollutant.

After these rulings, the action remained in the

district court awaiting consolidation with Sierra Club

v. Tennessee Valley Authority, which was on appeal

from the district court to this Court. After this Court

handed down its decision in Sierra Club, however, the

parties agreed that no issues were left for the district

court to resolve in this case. Aecordingly, the court

dismissed the entire action. The court observed that,

even if the plaintiffs could not obtain relief based on

the 1982-83 project on Colbert Unit 5 in this suit,

Sierra Club established that the Colbert Plant's

operations violate the Clean Air Act because of the

opacity limitation, and, while TVA is immune to civil

penalties, declaratory and injunctive relief might be

available for any viable claims. This appeal followed.

II.

We review de novo the district court's orders

granting TVA's motions to dismiss and for summary

judgment, upholding them if there are no genuine

issues of material fact and if TVA is entitled to

judgment as a matter of law. Sierra Club, 430 F.3d at

1345-46; see alsoFed.R.Civ.P. 56(c). We view the

evidence in the light most favorable to the nonmoving

parties, National Parks and the Sierra Club. Fla. Pub.

Interest Research Group Citizen Lobby, Inc. v. EPA,

386 F.3d 1070, 1082 (11th Cir.2004). Thus, we assume

without deciding that the 1982-83 project involving

Colbert Unit 5 was a modification that triggered the

New Source Review program requirements and the

New Source Performance Standards. See Nat’ Parks

Conservation Ass'n, Inc. v. Tenn. Valley Auth., 480

F.3d 410, 418 (6th Cir.2007).

First, we address the district court's dismissal

of National Parks' and the Sierra Club's two New

Source Review claims. They allege that TVA violated

various requirements of New Source Review by failing

to obtain construction permits, and to install emission

controls that would have been specified during the

permitting process, before undertaking work on

Colbert Unit 5 and by operating Unit 5 after this

illegal modification. The district court dismissed these

claims on statute of limitations grounds insofar as they

sought civil penalties, and it dismissed the claims

pursuant to the concurrent remedy doctrine insofar as

they sought injunctive and declaratory relief. In the

Sierra Club's separate case against TVA, this Court

held that TVA has sovereign immunity on any claims

for civil penalties, Syerra Club, 430 F.3d at 1353-57. In

light of that decision, National Parks and the Sierra

Club do not contest the dismissal of their claims for

civil penalties. They contend nonetheless that the

district court improperly dismissed their claims for

injunctive and declaratory relief. That dismissal was

premised on the concurrent remedy doctrine, which

arises only if the legal claims are time-barred. Thus,

even though it is established that TVA's sovereign

immunity bars National Parks' and the Sierra Club's

10a

legal claims, we begin by considering whether and to

what extent the five-year statute of limitations also

bars those claims.

A. Statute of Limitations

Legal claims brought under the Clean Air Act

are subject to the general federal five-year statute of

limitations established by 28 U.S.C. § 2462, wherein

the claim is barred if suit is not brought within five

years of the date the claim first accrues. A claim first

accrues on the date that a violation first occurs. 3/7

Co. (Minn. Mining & Mfg.) v. Browner, 17 F.3d 14538,

1462 (D.C.Cir.1994). TVA argues that National Parks'

and the Sierra Club's claims accrued in 1982 and 1983,

when TVA undertook and completed the work on

Colbert Unit 5 without obtaining construction permits,

installing certain emission controls, and fulfilling other

requirements of New Source Review; thus National

Parks' and the Sierra Club's suit filed nearly twenty

years later in 2001 is most evidently untimely. The

district court agreed, holding that National Parks and

the Sierra Club could not advance their New Source

Review claims because TVA had done no work on Unit

5 in the five-year period immediately preceding the

filing of the complaint. See also Nat'] Parks, 480 F.3d

at 416 (“Because § 2462 applies, for their suit to be

timely, the plaintiffs must identify a wrongful act that

took place within five years of their filing this suit.”).

National Parks and the Sierra Club advance

lila

several theories why the district court's conclusion was

incorrect. First, they argue that their claims were

timely filed because TVA's violations of the Act were

continuing violations. Under the continuing violations

doctrine, the statute of limitations is tolled for a claim

that otherwise would be time-barred where the

violation giving rise to the claim continues to occur

within the limitations period. Havens Realty Corp. v.

Coleman, 455 U.S. 363, 380-81, 102 S.Ct. 1114, 71

L.Ed.2d 214 (1982). In determining whether to

characterize a violation as “continuing,” it is important

to distinguish between the “present consequences of a

one-time violation,” which do not extend the

limitations period, and “a continuation of a violation

into the present,” which does. Ross v. Buckeye

Cellulose Corp., 980 F.2d 648, 658 (11th Cir.1993); see

also Ctr. for Biological Diversity v. Hamilton, 453 F.3d

1331, 1334 (11th Cir.2006).

Numerous district courts have held that

violations of requirements of the preconstruction

permitting process do not constitute continuing

violations of the Clean Air Act. See, e.g., New York v.

Niagara Mohawk Power Corp., 263 F.Supp.2d 650, 661

(W.D.N.Y.2003); United States v. Ill. Power Co., 245

F.Supp.2d 951, 957-58 (S.D.I11.2003); United States v.

Murphy Oil USA, Inc., 143 F.Supp.2d 1054, 1083-84

(W.D.Wis.2001); United States v. Westvaco Corp., 144

F.Supp.2d 439, 443-44 (D.Md.2001) (collecting

additional cases). The district court joined this line of

cases, and they persuade us, as well. The plain

language of the Act states, “No major emitting facility

... may be constructed ... unless” the proponent of the

12a

construction or modification fulfills the enumerated

requirements. 42 U.S.C. § 7475(a). From this

language, it follows that “violations of the

preconstruction permitting requirements occur at the

time of construction, not on a continuing basis.”

Niagara Mohawk, 263 F.Supp.2d at 661; see also JI1.

Power Co., 245 F.Supp.2d at 957 (observing that “the

Act provides separate requirements for

preconstruction permits and operating permits,’42

U.S.C. §§ 7475 and 7661 et seg. respectively, and the

plain language of the Act shows that preconstruction

permitting violations occur when construction begins,

not for the duration of the source's operation). This

conclusion is reinforced by the very citizen suit

provision National Parks and the Sierra Club invoke,

which permits suit “against any person who proposes

to construct or constructs any new or modified major

emitting facility without a permit.” 42 U.S.C. §

7604(a)(3) (emphasis added). “Operation” of such a

facility is not articulated as a basis for a violation of

New Source Review under either 42 U.S.C. § 7475(a)

or § 7604(a)(3). A source's operation is regulated

separately from its construction under the Act,

compare42 U.S.C. § 7475 (setting forth requirements

to be met prior to construction), with42 U.S.C. § 7661

et seq. (governing operating permits) and42 U.S.C. §

7411(e) (“[plrohibited acts” under New Source

Performance Standards include “to operate such [new]

source in violation of any standard of performance

applicable to such source”). The relevant Alabama

regulations also treated construction and operating

permits separately. Under such an arrangement, the

statutory provisions governing preconstruction

requirements “cannot reasonably be construed to mean

13a

that building or altering a machine without a permit

is a violation that continues as long as the machine

exists or is operated .... [A] violation of the Clean Air

Act's preconstruction permit requirements... occurs at

the time of the construction or modification and is not

continuing in nature.” ///, Power Co., 245 F.Supp.2d at

957.

National Parks and the Sierra Club contend

that an alternative line of cases has characterized

violations of preconstruction requirements as

continuing violations, citing United States v. Duke

Energy Corp., 278 F.Supp.2d 619, 651 (M.D.N.C.2003),

affd on other grounds,411 F.3d 539 (4th Cir.2005),

vacated by Envtl. Def.-v. Duke Energy Corp., --- U.S.

----, 127 S.Ct. 1423, 167 L.Ed.2d 295 (2007); United

States v. Marine Shale Processors, 81 F.3d 1329 (5th

Cir.1996); United States v. Am. Elec. Power Serv.

Corp., 137 F.Supp.2d 1060 (S.D.Ohio 2001). Of these

cases, only the district court opinion in Duke Energy

offers a rationale for treating violations of

preconstruction requirements as continuing violations.

However, the case is not directly analogous because

the state regulations at issue in Duke Energy

integrated construction and operating permits, see278

F.Supp.2d at 652, such that compliance with

preconstruction permitting requirements was a

condition for the legal operation of the source. That is

not the situation before us, as Alabama's State

Implementation Program utilized separate

construction and operating permit systems in 1982-83

during the work on Colbert Unit 5, and there is no

evidence that TVA's operating permit was otherwise

l4a

conditioned on its compliance with New Source Review

preconstruction requirements. See Murphy Oil, 143

F.Supp.2d at 1083 (finding no continuing violation

where “nothing in the statute creates a continuing

liability for a facility's failure to obtain a

pre-construction permit”).

Next, National Parks and the Sierra Club argue

that the district court misconstrued the nature of their

claims with respect to TVA's operation of Unit 5 after

the allegedly illegal modification. They emphasize that

TVA never installed and continues to operate without

“Best Available Control Technology,” emission

limitations for modified sources located in areas that

are in attainment of the EPA's air quality standards.

Alabama regulations required the Director of the

Department of Environmental Management to

determine the achievable emission limitations for a

specific source before granting it a construction permit,

Ala. Air Pollution Control Comm'n Reg. 16.4.2(/ )

(1981). This source-specific Best Available Control

Technology then would be specified for installation in

the modified source. Because TVA never went through

the preconstruction permitting process before

undertaking work on Unit 5, emission limitations

never were specified for the Unit. According to

National Parks and the Sierra Club, TVA nonetheless

has an ongoing obligation to apply Best Available

Control Technology and commits a fresh violation of

the Act every time it operates Unit 5 without these

emission controls. In support of this position, they cite

a portion of _the governing Alabama State

Implementation Plan stating that modified sources

l5a

“shall apply” Best Available Control Technology, Ala.

Air Pollution Control Comm'n Reg. 16.4.9(c) (1981).

National Parks and the Sierra Club also point

us to a recent decision from the Sixth Circuit where

they joined with another organization and litigated the

timeliness of Clean Air Act claims arising from TVA's

failure to undergo the preconstruction permitting

process and its subsequent operations at a Tennessee

plant, National Parks Conservation Association, Inc.

v. Tennessee Valley Authority, 480 F.3d 410, 417 (6th

Cir.2007). In that case, the district court had held that

the plaintiffs' claims were time-barred. /d. at 411. A

divided panel of the Sixth Circuit reversed, holding

that Tennessee regulations created an ongoing

obligation to install Best Available Control Technology,

and thus the plaintiffs’ claims were timely to the

extent that they alleged that TVA failed to apply the

emission controls within the limitations period. Jd. at

418-19. Relying on this decision, National Parks and

the Sierra Club argue that, regardless of whether the

continuing violations doctrine applies, their first New

Source Review claim must survive to the extent that

TVA committed a new, discrete violation every time it

operated Unit 5 without Best Available Control

Technology during the limitations period.

Were this case governed by ‘Tennessee's

environmental regulations, the Sixth Circuit's decision

in National Parks indeed would be persuasive

authority for National Parks' and the Sierra Club's

position. They advance the same claim in both

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cases°-TVA modified a source without applying Best

Available Control Technology and has been in violation

of the Act ever since, committing a discrete violation

every time it operates the source without these

emission controls. We cannot avoid the fact, however,

that the obligation to apply Best Available Control

Technology-like all the violations alleged in the New

Source Review counts of the complaint in this suit-was

solely a prerequisite for approval of the modification,

not a condition of Unit 5's lawful operation, under the

relevant Alabama State Implementation Plan. Thus,

National Parks' and the Sierra Club's claim is

completely time-barred.

The complaint charges TVA with violating the

Alabama regulations in effect at the time of TVA's

work on Unit 5, and these regulations govern our

inquiry. Acareful review of Alabama's preconstruction

permitting program reveals that Best Available

Control Technology was to be determined and installed

at the time of construction. Alabama maintained

completely distinct construction and operating permit

programs, and the obligation to apply Best Available

Control Technology was confined to the regulations for

“Permits to Construct in Clean Air Areas.” While these

regulations did provide that a major modification

“shall apply” Best Available Control Technology, that

requirement applied to “each proposedemissions unit,”

Ala. Air Pollution Control Comm'n Reg. 16.4.9(c)

(1981) (emphasis added). Moreover, the regulations

defined Best Available Control Technology as a set of

source-specific emission limitations determined by the

Director before construction begins. Ala. Air Pollution

17a

Control Comm'n Reg. 16.4.2(/) (1981). The Alabama

regulations apparently did not provide a way for a

party who had undertaken a modification to obtain

such a determination outside the preconstruction

permitting process. These provisions compel our

conclusion that TVA's obligation to install Best

Available Control Technology was to be met at

construction time in 1982, and was not an ongoing

duty.

While the Alabama regulations cited above and

certain portions of the ‘Tennessee regulations

interpreted by the Sixth Circuit in National Parks

share very similar language,” we conclude that an

? Like Ala. Air Pollution Control Comm'n Reg. 16.4.9(c),

stating that a “major modification shall apply [Best Available

Control Technology]” and that this “requirement applies to each

proposed emissions unit,"Tenn. Comp. R. & Regs. §

1200-3-9-.01(4)G)(3) states: “A major modification shall apply best

available control technology for any pollutant for which it would

result in a significant net emissions increase at the source. This

requirement applies to each proposed emissions unit at which a

net emissions increase in the pollutant would occur as a result of

a physical change or change in the method of operation in the

unit.” Alabama's Best Available Control Technology requirement

was classified within regulations governing “Permits to Construct

in Clean Air Areas”; Tennessee's regulations at § 1200-3-9-.01 are

entitled “Construction Permits.” In addition, Tenn. Comp. R. &

Regs. § 1200-3-9-.01(4)(a)(1) provides, “No major stationary source

or major modification ...sha// begin actual construction unless the

requirements of this paragraph, as applicable, have been met”

(emphasis added). To the extent the Sixth Circuit interpreted the

“shall apply” language by itself as creating an ongoing obligation

to apply Best Available Control Technology every time the source

operates, see Nat’ Parks, 480 F.3d at 418-19, even though

18a

important difference in the states' plans ultimately

precludes us from reaching the same result as our

sister circuit. Tennessee's State Implementation Plan

provided that, if a party failed to obtain a construction

permit specifying emission limitations at the time of

construction or modification, a construction permit

could be issued at a later date “to assure that these

regulatory requirements are met.” Tenn. Comp. R. &

Regs. § 1200-3-9-.01(1)(e). The Sixth Circuit construed

this provision as creating an ongoing obligation to

comply with requirements of the preconstruction

permitting process. National Parks, 480 F.3d at 413.

National Parks and the Sierra Club have not pointed

out any analogous provision in the Alabama Plan in

effect in 1982, and we are not aware of one. Unlike

Tennessee, Alabama limited the obligation to apply

Best Available Control Technology to proposed

modifications, with no caveat continuing the obligation

for the operating life of the source if it was not met

during the construction phase. In light of this

* distinction, we cannot say that TVA's failure to apply

Best Available Control Technology on Unit 5

constitutes a “series of discrete violations” of the

relevant Alabama regulations, Nat! Parks, 480 F.3d at

Tennessee maintained separate construction and operating permit

systems and the cited provision is embedded within a set of

regulations explicitly governing “Construction Permits,” see id. at

420 (Batchelder, J., dissenting), we do not adopt that

interpretation of the similarly worded Alabama regulations.

Without a provision imposing an ongoing duty to meet

preconstruction requirements that were not met at the time of

construction, there is no basis for us to conclude that National

Parks’ and the Sierra Club's New Source Review allegations in

this case are timely under the governing Alabama regulations.

19a

417, some of which fall within the limitations period.

See Niagara Mohawk, 263 F.Supp.2d at 665 (courts

have held that a violation of the obligation tu install

Best Available Control Technology before construction

does not “create continuing obligations or constitute

continuing violations for purposes of the application of

the statute of limitations”).

We likewise reject National Parks' and the

Sierra Club's argument that, although TVA had an

operating permit issued by the Alabama Department

of Environmental Management, it continually violated

the Act by failing to obtain an “Air Permit” specifying

Best Available Control Technology for Unit 5 after

Alabama's State Implementation Plan was amended in

1985. The 1985 amendments revised Alabama's

permitting system so that construction and operating

permits were combined and issued as Air Permits.

They provided that a person modifying a seurce had to

obtain an Air Permit before construction and, if that

person failed to do so, the source could not operate

legally until an Air Permit was obtained. Ala. Admin.

Code Rule 335-3-14-.01(1)(a), (c). As a threshold

matter, it is not clear that National Parks and the

Sierra Club have properly charged any violations of

the 1985 Alabama regulations; the complaint charges

TVA only with violating the Alabama preconstruction

permitting regulations in effect during TVA's work on

Unit 5 in 1982-83. Moreover, the 1985 amendments

have no significance in this case where it is undisputed

that TVA had an operating permit for Unit 5 at the

relevant times. There is no indication that the 1985

amendments were to apply retroactively, reviving

20a

TVA's obligation to obtain a preconstruction permit

specifying emission limitations. Rather, all

construction and operating permits, the latter of which

TVA had, were converted to Air Permits by operation

of law in 1985. National Parks' and the Sierra Club's

position amounts to an argument that TVA has been

violating the Act continually by operating Unit 5 under

the wrong permit, and we reject it. See United States

v. AM Gen. Corp., 34 F.3d 472, 475 (7th Cir.1994)

(rejecting collateral attack on permit).

Where TVA has not been accused of violating its

operating permit, Unit 5's present pollutant emissions

have significance in this case only asa current ill effect

of its past failure to fulfill the requirements of

Alabama's preconstruction permitting program in

1982. That is not sufficient to bring National Parks'

and the Sierra Club's New Source Review claims

within the five-year statute of limitations, which

serves several important purposes including barring

stale claims and protecting expectations that have

settled over time. See 3M Co., 17 F.3d at 1457. Under

these circumstances, a plaintiff's recourse is to allege

violations of the operating permit. See Niagara

Mohawk, 263 F.Supp.2d at 662; see also Murphy Oil,

143 F.Supp.2d at 1081-82. As the district court

observed, the Sierra Club apparently has done this

successfully in its separate suit against TVA charging

opacity limit violations at the Colbert Plant. To be

sure, relief is available under the Act if those

operations exceed the 20% opacity limitation, Sierra

Club, 430 F.3d at 1350-but not for the preconstruction

violations alleged in this separate suit, which are

2la

time-barred.

B. Concurrent Remedy Doctrine

By its plain language, the statute of limitations

set forth in 28 U.S.C. § 2462 applies only to claims for

legal relief; it does not apply to equitable remedies.

United States v. Banks, 115 F.3d 916, 919 (11th

Cir.1997). Nonetheless, where a party's legal remedies

are time-barred, that party's concurrent equitable

claims generally are barred under the concurrent

remedy doctrine. Cope v. Anderson, 331 U.S. 461, 464,

67 S.Ct. 1340, 91 L.Ed. 1602 (1947); see also Gilbert v.

City of Cambridge, 932 F.2d 51, 57 (1st Cir.1991)

(stating that “it is settled ... that where legal and

equitable claims coexist, equitable remedies will be

withheld if an applicable statute of limitations bars

the concurrent legal remedy”); United Transp. Union

v. Fla. E. Coast Ry. Co., 586 F.2d 520, 523-24 (5th

Cir.1978) (holding that, where both legal and equitable

relief are sought, the statute of limitations bars both).

National Parks and the Sierra Club rely on

Banks and United States v. Cinergy Corp., 397

F.Supp.2d 1025, 1032 (S.D.Ind.2005), in arguing that

the concurrent remedy doctrine does not bar their

claims. Banks carved out an exception to the

concurrent remedy doctrine so that statutes of

limitations cannot operate to bar “claims brought by

the federal government in its sovereign capacity” as

enforcer of environmental regulations. 115 F.3d at 919

22a

(government sought injunction against party

discharging dredged or fill materials on wetlands in

violation of Clean Water Act). National Parks and the

Sierra Club argue that this exception should be

extended to them because they are acting as “private

attorneys general” to enforce environmental

regulations for the public benefit, see Middlesex

County Sewerage Auth. v. Nat'l Sea Clammers Ass'n,

453 U.S. 1, 16-17, 101 S.Ct. 2615, 69 L.Ed.2d 435

(1981). There is no authority, however, for expanding

the governmental exception to preclude application of

the concurrent remedy doctrine in the instant suit,

which was filed by private parties where the

government has declined to act. The statute provides

that plaintiffs in a citizen suit are acting “on [their]

own behalf,” 42 U.S.C. § 7604(a); though they may be

acting as private attorneys general, they do not

represent the public at large in the same way the

government does when it brings suit to enforce the

statute. See Conservation Law Found. of New

England, Inc. v. Browner, 840 F.Supp. 171, 175

(D.Mass. 1993) (citing legislative history of citizen suit

provision).

Alternatively, National Parks and the Sierra

Club argue that the doctrine is inapplicable because

their legal and equitable claims do not seek

“concurrent” remedies, urging us to adopt the

reasoning articulated by the Indiana district court in

Cinergy. In Cinergy, the court held that the concurrent

remedy doctrine did not bar a citizen suit seeking

injunctive relief that was paired with a time-barred

claim for civil penalties. The court held that the

23a

separate claims were not concurrent because the

remedies had “different goals and effects.” 397

F.Supp.2d at 1032 (identifying the goal of civil

penalties as deterrence because fine is paid to the

government, while the goal of equitable relief is “to

stop threats to the environment”). We are not aware of

other authority for this novel distinction and are not

persuaded that it is a meaningful one. We conclude

that the civil penalties and equitable relief sought in

this case are concurrent because “an action at law or

equity could be brought on the same facts.” United

States v. Telluride Co., 146 F.3d 1241, 1248 n. 12 (10th

Cir.1998) (internal quotations and citations omitted).

Finally, National Parks and the Sierra Club

argue that, after Sverra Club established TVA's

sovereign immunity on claims for civil penalties, their

only claim is for equitable relief, and thus their claims

for declaratory and injunctive relief must survive

because they no longer have any concurrent legal

claim, time-barred or otherwise, to support application

of the concurrent remedy doctrine. We reject this

argument. That TVA has sovereign immunity by no

means renders its statute of limitations defense

superfluous. TVA was entitled to raise multiple

defenses, and “the plaintiffs’ request for civil penalties

remains part of the operative complaint.” Nat’ Parks,

480 F.3d at 416. Thus, we have considered whether

and to what extent the five-year statute of limitations

and the concurrent remedy doctrine bar the legal and

equitable New Source Review claims National Parks

and the Sierra Club assert in this suit, and we

conclude that the district court correctly dismissed

24a

those claims. Consequently, we need not address

TVA's laches defense.

ITI.

In their third claim, National Parks and the Sierra

Club allege that TVA's operation of Colbert Unit 5

violated the New Source Performance Standards,

see42 U.S.C. § 7411, on a daily basis for nearly twenty

years. The district court dismissed the claim, holding

that National Parks and the Sierra Club had failed to

comply with the pre-suit notice requirement for citizen

suits established by 42 U.S.C. § 7604(b). National

Parks sent TVA notice of its intent to sue on October

30, 2000,° but the district court found the letter to be

“the notice equivalent of a ‘shotgun’ complaint”

because it broadly alleged daily violations of an entire

set of regulations without specifically identifying the

individual alleged violations and dates.

We review the sufficiency of pre-suit notice de

novo. See Waterkeepers N. Cal. v. AG Indus. Mfg.,

Inc., 375 F.8d 913, 917 (9th Cir.2004). In general,

unless the plaintiff provides specific notice of intent to

sue at least 60 days before filing the complaint, a

citizen suit may not be maintained. See Hallstrom v.

Tillamook County, 493 U.S. 20, 31, 110 S.Ct. 304, 107

L.Ed.2d 237 (1989); Nat’ Envtl. Found. v. ABC Rail

° The Sierra Club sent a separate letter shortly thereafter

notifying TVA that it intended to join National Parks’ suit.

25a

Corp., 926 F.2d 1096, 1097 (11th Cir.1991) (notice

requirement “is a mandatory condition precedent to

the filing of a citizen suit” under Clean Water Act).

Under the Clean Air Act's citizen suit provision, at

least 60 days before commencing the suit, the citizen

plaintiff must give “notice of the violation (i) to the

Administrator, (ii) to the State in which the violation

occurs, and (iii) to any alleged violator of the standard,

limitation, or order” allegedly violated. 42 U.S.C. §

7604(b)(1)(A). The notice must contain «sufficient

information to permit the recipient to identify the

specific standard, limitation, or order which has

allegedly been violated, the activity alleged to be in

violation, the person or persons responsible for the

alleged violation, the location of the alleged violation,

the date or dates of such violation, and the full name

and address of the person giving the notice.

40 C.F.R. § 54.3(b) (2004). National Parks’

notice letter alleged violations at ten of TVA's

coal-fired power plants in Tennessee, Alabama, and

Kentucky. The pertinent portion of the letter for Count

III of the complaint alleged that TVAviolated

regulations known as New Source Performance

Standards (“NSPS”) at Colbert Unit 5. Pursuant to

Section 111 of the Clean Air Act, 42 U.S.C. § 7411,

EPA has promulgated standards of performance for a

variety of major air pollution source categories,

including electric utility steam generating units. These

standards apply to the owner or operator of any

electric utility steam generating unit, “the construction

or modification of which is commenced after the date

of publication ... of any standard ... applicable to that

26a

facility.” 40 C.F.R. § 60.1(a) and §§ 60.40a-49a

(Subpart Da). The changes [TVA] made to Colbert Unit

5 in 1983 that are discussed above caused an increase

in the maximum hourly emissions rate achievable by

the unit and therefore constituted a “modification” as

that term is defined at 40 C.F.R. §§ 60.2 and 60.14(a).

Accordingly, beginning in 1983, [TVA was] required to

meet all of the requirements of Subpart Da, and [TVA

has] failed every day thereafter to do so.

National Parks and the Sierra Club first argue

that they were not obligated to provide notice. They

point out that some citizen suits under the Act are not

subject to the notice requirement, see42 U.S.C. §

7604(a)(3) & (b), and argue that, when a claim that

requires notice is related to one that does not, both

claims can proceed without notice. National Parks and

the Sierra Club admit that, standing alone, the New

Source Performance Standards claim would require

pre-suit notice, but they argue that, because the claim

has been brought with the New Source Review claims,

which would not require notice if brought under 42

U.S.C. § 7604(a)(3), notice was not required. After

reviewing the precedent National Parks and the Sierra

Club cite in support of this proposition, we reject their

argument. In some cases brought under the Resource

Conservation and Recovery Act and the Clean Water

Act, courts have excused pre-suit notice requirements

where citizens bring a “hybrid” complaint that alleges

some claims that may be brought immediately and

some that are subject to a waiting period after notice

of intent to sue is given. See, e.g., Dague v. City of

Burlington, 935 F.2d 1343, 1351-52 (2d Cir.1991), rev'd

27a

on other grounds,505 U.S. 557, 112 S.Ct. 2638, 120

L.Ed.2d 449 (1992); Covington v. Jefferson County, 358

F.3d 626, 637 (9th Cir.2004). However, the plaintiffs in

these cases gave notice but did not observe the

applicable waiting period; it was the excusal of this

post-notice delay requirement that was squarely before

the courts. Dague, 935 F.2d at 1350; Covington, 358

F.3d at 636-37. In this case, the specificity of the notice

given is at issue. Thus, the “hybrid complaint” cases

cited by National Parks and the Sierra Club do not

give us a basis for eliminating the requirement that

specific notice be given for their New Source

Performance Standards claim.

Next, National Parks and the Sierra Club argue

that their letter complied with the notice requirement

because it provided “sufficient information to permit

the recipient to identify” the nature of their New

Source Performance Standards claim, as required by

40 C.F.R. § 54.3(b). They observe that the letter

identified Colbert Unit 5 as the location of the

violations, dated the violations as beginning from

1983, and identified Subpart Da (40 C.F.R. S§

60.40a-49a) out of the 80 subparts of 40 C.F.R. Part 60

as the governing regulations. They remind us that the

notice requirement does not demand that a citizen

plaintiff “list every specific aspect or detail of every

alleged violation.” Pub. Interest Research Group of

New Jersey, Inc. v. Hercules, Inc., 50 F.3d 1239, 1248

(3d Cir.1995). They also point out that, apart from the

letter, TVA should have known exactly what violations

were alleged by virtue of the administrative action the

EPA had brought against it earlier, where this citizen

28a

suit was filed only as a “backstop” in case the EPA's

action failed.

We conclude, as the district court did, that

National Parks' notice letter was inadequate because

it failed to provide enough information to permit TVA

to identify the allegedly violated standards, dates of

violation, and relevant activities with the degree of

specificity required by the regulations. The notice

requirements are strictly construed to give the alleged

violator the opportunity to correct the problem before

a lawsuit is filed. See Waterkeepers, 375 F.3d at

916-17; see also Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc., 484 U.S. 49, 60, 108

S.Ct. 376, 98 L.Ed.2d 306 (1987). Rather than

identifying the “specific standard” allegedly violated,

National Parks' letter broadly alleged that the

operation of Colbert Unit 5 violated “all of the

requirements of Subpart Da.” Subpart Da sets

emissions standards for several pollutants including

sulfur dioxide, nitrogen oxide, and particulate matter.

National Parks and the Sierra Club eventually

discovered that TVA was in compliance with the

standards for nitrogen oxide and particulate matter,

and their ultimate New Source Performance Standards

claim alleged only that TVA violated the standards for

sulfur dioxide-a much narrower claim than the letter's

broad allegations of constant violations of the entirety

of Subpart Da. See Catskill] Mountains Chapter of

Trout Unlimited, Inc. v. City of New York, 273 F.3d

481, 487 (2d Cir.2001) (“To provide adequate notice of

each violation that will be targeted in the citizen suit,

the [intent to sue] letter must differentiate ... one

29a

pollutant from another,” under analogous Clean Water

Act notice regulations.). Similarly, the allegation that

TVA has “failed every day” to comply with EPA

regulations since its modification of Unit 5 in 1983

does not identify specific activities that violate the Act,

and, while the letter does date these violations to a

nearly 20-year span of time, this provides little

guidance to TVA in identifying the violations of which

it was accused. “Aiming for breadth of coverage, the

letter{ ] substitutels] sweeping language for the

particularity required by’40 C.F.R. § 54.3(b). Karr v.

Hefner, 475 F.3d 1192, 1201 (10th Cir.2007).

The language of the regulation does not suggest that

the notice may be good enough if it generally orients

the agency or violator as to the type of violation ....

[T]he recipient of the notice must understand from the

notice what the citizen is a//eging- not what the citizen

could allege if the citizen knew more or cared about

other possible transgressions. Ca/. Sportfishing Prot.

Alliance v. City of W. Sacramento, 905 F.Supp. 792,

799 (E.D.Cal.1995), quoted in Karr, 475 F.3d at

1200-01. National Parks and the Sierra Club cannot

rely on TVA's participation in the EPA administrative

action involving similar allegations to substitute for

the lack of specificity in their letter. See Save Our

Health Org. v. Recomp of Minn., Inc., 37 F.3d 1334,

1337-38 (8th Cir.1994) (complaint dismissed because

plaintiff failed to include alleged violations in notice,

even though plaintiff claimed defendant had

independent knowledge of violations). Thus, we affirm

the dismissal of the New Source Performance

Standards claim for lack of proper pre-suit notice.

30a

IV.

Finally, National Parks and the Sierra Club

appeal the district court's order denying their motion

for partial summary judgment on the issue of whether

the 1982-83 project involving Colbert Unit 5 was a

“major modification” triggering the requirements of

New Source Review and the New Source Performance

Standards. Because we affirm the dismissal of their

claims while assuming the project was a major

modification, it is not necessary to review this order. In

any event, we lack jurisdiction to review this denial of

the motion for summary judgment because it is not an

appealable final judgment under 28 U.S.C. § 1291. See

Valdes v. Crosby, 450 F.3d 1231, 1235 (11th Cir.2006).

For the above reasons, the dismissal of this

action is AFFIRMED in its entirety.

3la

UNITED STATES DISTRICT COURT, N.D.

ALABAMA, NORTHWESTERN DIVISION.

NATIONAL PARKS CONSERVATION

ASSOCIATION, INC. and SIERRA CLUB, Plaintiffs

~ v.

TENNESSEE VALLEY AUTHORITY Defendant.

No. Civ.A. 01-403-VEH.

Entered Jan. 17, 2006.

MEMORANDUM OPINION

HOPKINS, District Judge:

Plaintiffs National Parks Conservation

Association, Inc. (““NPCA”) and Sierra Club, Inc.

(“Sierra Club”)' have filed an action under the citizen

suit provision of the Clean Air Act (““CAA” “the Act”),

42 U.S.C. § 7604(a) (2000) which, in three (3) separate

Causes of Action, asserts Tennessee Valley Authority

e (“TVA”) violated the CAA by its 1982 work at the

Colbert Unit 5 plant (“the work”). NPCA says the work

constituted a “modification” under the CAA, triggering

the New Source Performance Standards (“NSPS”),

Non-Attainment New Source Review (“NNSR”) and

‘ The court will continue its practice of referring to the

Plaintiffs collectively as “NPCA” unless the context clearly

indicates otherwise.

32a

New Source Review (“NSR”),? and Prevention of

Significant Deterioration (“PSD”) standards of the

CAA. Second Amended Complaint (“SAC”). (Doc. 80.)

In the latter part of 2005, the court, acting on

TVA motions that had been pending for some time,

entered orders on motions to dismiss filed by TVA

where TVA sought judgment on all three (3) NPCA

Causes of Action. See Doc. 213 and Doc. 215 (First and

Second Causes of Action); Doc. 217 (Third Cause of

Action).

On January 3, 2006, (doc. 220), the court ruled

on a Motion (doc. 218) filed by NPCA requesting a

“brief telephonic status conference,” and the Response

thereto (doc. 219) filed by the Tennessee Valley

Authority (“TVA”). The court granted the motion in

part by directing NPCA “to provide to the court and to

TVA a proposed agenda of matters to be addressed,”

and directing TVA to file a response to NPCA's

proposed agenda. (Doc. 220) NPCA filed its Proposed

Agenda. (Doc. 221). TVA filed its Response (doc. 222),

to which NPCA filed a Reply (doc. 223).

The court anticipated NPCA might, as part of

2 In 1982 and 1983, the area around Colbert 5 was a

“non-attainment” area. The parties agree, and prior orders in this

action have stated, that the area around Colbert 5 has been an

attainment area since the early 1990's. So, if the relevant time is,

or turns out to be, 1982-1983, the NNSR provisions would apply:

if the relevant time is the five (5) years preceding the filing of the

Complaint, NSR provisions would govern.

33a

the status conference, seek reconsideration of the

orders entered on TVA's motions to dismiss described

above. And NPCA did so in part. NPCA's discussion of

the agenda, however, addressed the Court's announced

intention to consolidate this action with the court's

other TVA Colbert plant CAA citizen suit action Sierra

Club v. TVA, 430 F.3d 1337 (11th Cir.2005), Petition

for Rehearing Or Rehearing En Banc filed January 5,

2005 (“Sierra Club v. TVA’). In response to that

announcement, NPCA said:

.. in hght of the Court's recent rulings that

appear to have effectively dismissed all counts

in the NSR case. If this is correct and no claims

for injunctive relief in the NSR case alone have

survived, then there is no case with which to

consolidate the opacity case, and the plaintiffs

would ask the court to enter judgment for the

defendant forthwith.

Doc. 221 at p. 2.

In its response, TVA concurred with NPCA's

assessment:

TVA agrees with the Plaintiffs that the Court's

orders have, as Plaintiffs put it, “effectively

dismissed all counts in the NSR case.”

Doc. 222 at p. 1.

34a

I have reviewed and considered what NPCA and

TVA have said is the effect of the Orders in question

(docs. 213, 215, and 217), and, having done so,

concluded that their assessment is correct. After

setting out the background, followed by discussion of

what issues arguably may have remained after those

Orders, I conclude that there are no issues left to

resolve and that the entry of a final Order dismissing

the action is appropriate.

I. BACKGROUND

The background of this action, the CAA, the

regulatory history, and the court interpretations of the

applicable provisions have been set out in previous

opinions associated with docs. 213, 215, and 217, and

will not be repeated. Suffice it to say that the

requirements of the Alabama PSD and NNSR

provisions are triggered when a new source is built or

when an existing major stationary source constructs a

“major modification.” See AAPCC Regulations 16.4.8

(Ex. 5 at 10) & 16.3.2(c) (Ex. 6 at 16-8). If triggered,

these new source requirements require installation of

pollution control equipment that represents best

available control technology (BACT) (under the PSD

program) or lowest achievable emission rate (LAER)

(under the NNSR program). NPCA says these

requirements were triggered by the 1982-1983 work at

Colbert 5.

35a

Il. ARE THERE ISSUES REMAINING AT THIS

TIME?

In asking for the agenda for the proposed status

conference, I did not consider the cumulative effect of

the recent Orders. (Docs. 213, 215, and 217). I also did

not anticipate: 1) that there would still be any doubt

concerning what claims remained in the action after

the orders entered on the TVA motions to dismiss, and

2) that the parties would, for different reasons, seek

entry of judgment in TVA's favor on all claims.

Having considered the effect of the Orders, I

cannot quarrel with NPCA's belief that, under the

First and Second Causes of action, it has no claims for

relief unless “... the modifications occurred within five

years of the filing of the complaint.” Doc. 223 at p. 2.

The court tried, unsuccessfully, in the Order entered

December 8, 2005, which amended its ruling on the

First and Second Causes of Action, to eliminate any

possible confusion. See Doc. 215, amending Doc. 213.

At page 4 of doc. 215, the court said that NPCA would

still have claims when those claims fell within the five

(5) year statute of limitations and asserted that TVA

operations of Colbert 5 violate the Clean Air Act.

(Emphasis supplied).

The court did not intend to say that the

operations of Colbert 5 that might violate the Act had

to be caused by a “modification” of Colbert 5 occurring

within five (5) years of the filing of the Complaint.

36a

There is no dispute that the construction work at

Colbert 5 which NPCA says was a modification

triggering the NSPS, NNSR/NSR, and PSD provisions

of the CAA took place in 1982 and 1983. I could have

been more clear and said NPCA couldn't prove a claim

under the First and Second Causes of Action because

there had been no work at Colbert 5 in the five-year

period immediately preceding the filing of the

Complaint in 2001. My confusion arose from a reading

of the SAC as, inter alia, asserting that TVA's

operations of Colbert 5 violate the CAA, combined with

my reading of Sierra Club v. TVA, supra, which

supports that assertion. The distinction between the

SAC and Syerra Club v. TVA, of course, is that the

latter does not tie the illegal operations to the 1982

-1983 work at Colbert 5. NPCA is careful to say that it

reads the recent Orders as tying the right to proceed

under the First and Second Causes of Action, which

assert operation of Colbert 5 without appropriate

permitting and the installation of BACT and LAER

emission limits, to a “modification” under the Act that

falls within the (5 year) statute of limitations. (Doc.

222 at p. 2).

In any event, I anticipated that consolidating

this action with Sierra Club v. TVA, and addressing

the issue of remedies, would moot the issue of whether

there were surviving claims since Sierra Club v. TVA

covers substantially the same time period of operations

at the same TVA plant.

37a

Ill. DISCUSSION

Perhaps it is a distinction without a difference

but, in light of Sierra Club v. TVA, supra, the court

was willing to at least consider the possibility that

NPCA could prove its First and Second Causes of

Action as to TVA's operations of Colbert 5 at this time

and going back five (5) years preceding the filing of the

Complaint. The court said, and reaffirms, that the

NPCA Notice letter was a shotgun notice that did not

comply with the notice provisions of the CAA citizen

suit provisions, thereby dooming the Third Cause of

Action. Having said that, Sierra Club v. TVA, supra,

was handed down after the court's Order dismissing

the First and Second Causes of Action, and the court

believed, apparently incorrectly, that Sierra Club v.

TVA may have opened the door for NPCA to try to

prove such violations occurring within the five (5)

years preceding the filing of the Complaint. The

thinking was that once the 11" Circuit had stated

unequivocally that the 2% de minimis rule violated the

CAA because it was not approved by the EPA and

made a part of the Alabama SIP, NPCA may have

sought to prove, if it could, that TVA's operations of

Colbert 5 today, and going back to 1996, also violate

the CAA because the 1982-1983 work, which NPCA

says was a “modification” under the Act, was not

permitted as the Act requires. An amendment to

NPCA's Complaint likely would have been necessary,

but since Sierra Club v. TVA represents, at the least,

a significant intervening change in the law, leave to

amend would have been freely granted. F.R. Civ. P. 15.

38a

Put another way, NPCA could send TVA, ADEM, and

EPA a pre-suit notice letter tomorrow saying Colbert

5 violates the CAA each time its opacity exceeds 20%

as measured by its continuous monitor operating

system (“COMS”)’ reading, that it has done soon every

occasion listed (using the COMS data supplied to

ADEM by TVA), and then file suit sixty (60) days later.

Given my reading of Serra Club v. TVA, any or

all of these steps appeared to be a meaningless

exercise of formality. Sierra Club v. TVA appears to

clearly say the Colbert plant is in violation of the CAA,

the 2% de minimis rule does not excuse the violations,

the COMS readings are credible evidence of the

violations, and TVA is immune to civil penalties. If

this is an accurate recitation of its holding, Sverra Club

v. TVA seems to leave very little for me to try in that

action besides the remedies to be imposed under the

Act. And I had the same thinking about this action,

which is why I announced my intention to consolidate

them once the mandate issued in Sierra Club v. TVA.

Whether I don't get it (it meaning “the CAA”), or

3 “One of the requirements of the Colbert plant's air permits

is that TVA install, maintain, and operate a continuous opacdty

monitoring system (‘COMS’) in each of the plant's smokestacks.

SeeAla. Admin. Code r. 335-3-12-.02(3). As its name indicates,

COMS is a device that monitors continuously the opacity of a

plume of smoke.” Syerra Club v. TVA, supra, 430 F.3d at 1340

-1341.

39a

the earlier Orders were insufficiently clear,’ is not

important. At this point the court has decided that its

earlier decision, which was to await issuance of the

mandate in Sierra Club v. TVA, then consolidate this

action with Sierra Club v. TVA and address what

remedies would be appropriate in light of Sierra Club

v. TVA, is no longer an efficient manner of proceeding,

and may have the unintended consequence of

stretching out for years the resolution of the legality of

TVA's operations of its Colbert County plant. Further,

in light of the parties' statements in the “status

conference” filings, docs. 221-223, both NPCAand TVA

take the position that the effect of the Orders (docs.

213, 215, and 217) is that there is nothing left to do

but enter judgment in favor of TVA and leave the

parties to their appellate remedies should they be so

inclined.

I think the parties are correct in their

assessment of the status of the file at this point, .e.,

that nothing further is left for decision. Further,

absent the entry of a final Order, I foresee a scenario

where, the Sierra Club v. TVA mandate having issued,

I proceed as I believe I am directed by that opinion, or

any modification thereof, with NPCA then appealing

my decisions in this action on the First, Second, and

Third Causes of Action to the 11™ Circuit.

On appeal, if NPCA is right and J am wrong

* Opacity issues apparently are not limited to Colbert 5's

smokestacks.

40a

about the First and Second Causes of Action, then

there will be an entirely different remedy question to

address, 1.e., since TVA should have, but didn't, obtain

the appropriate CAA permits in 1982-1983, what is to

be done about that now? Does TVA have to do over the

1982-1983 work in accordance with the 1980 CAA

emission rule, the legality of which was litigated at

length in the 1980's and 1990's without a final decision

on its validity by the D.C. Circuit Court of Appeals,’ or

some variation of the 1980 rule in effect in 2001 when

this action was filed, or the CAA emission rule in effect

at the time I take up the remedies issues on remand in

Sierra Club v. TVA? I pose the question because I

believe, as TVA has told the 11“ Circuit in its Petition

for Rehearing, that Srerra Club v. TVA has effectively

decided the issue of CAA liability and only remedies

remain to be determined. See Doc. 222, Exhibit A(TVA

° See N.Y v. EPA, 413 F.3d 3 (D.C.Cir.2005), rehearing en

bancdenied, 431 F.3d 801 (D.C.Cir.2005).

§ Which would likely be the 2002 rule upheld by the D.C.

Circuit in N.Y. v. EPA, supra, but might not be if the 2002 rule is

still in litigation, has not been fully implemented or, to be more

precise, not yet been made part of Alabama's State

Implementation Plan (“SIP”). The time for seeking certiorari in

NY v. EPA expires ninety (90) days from the December 9, 2005,

denial of rehearing en banc. Sup.Ct. R. 22.3. On December 29,

2005, EPA published a Supplemental Notice of Reconsideration of

the 2002 rule seeking comments limited specifically to the cost

benefit analysis contained in the proposed rule and the effect of

NY v. EPA on that part of the rule. See70 FR 77101-01, 2005 WL

3542379 (F.R.). On December 29, 2005, EPA published a

Supplemental Notice of Reconsideration of the 2002 rule seeking

comments limited specifically to the cost benefit analysis

contained in the proposed rule and the effect of VY v. EPAon that

part of the rule. See70 FR 77101-01, 2005 WL 3542379 (F.R.).

4la

Petition for Rehearing or Rehearing F'n Banc) at p. 10;

Exhibit D (Brief of Amici Curiae Alabama Pulp and

Paper Council and Business Council of Alabama) at p.

4. And if that is correct, how will the conflicting

remedies be reconciled?

Further, if NPCA is right and I am wrong about

the Third Cause of Action, then NPCA will have the

right to prove TVA has violated the Act on a daily

basis for more than twenty (20) years.

Further, if NPCA is correct about the viability

of its First and Second Causes of Action, there will still

remain two legal questions I have determined

adversely to NPCA's position:

1) Was the work at Colbert 5 subject to the

“routine maintenance and repair” (“RMRR’”)

exclusion that applies to projects that are

routine within the (electricity generating)

industry, by which is meant work of a type

performed commonly within that industry,

although perhaps infrequently at any specific

one or more of any utility's (TVA's here)

particular plants; and

2) Whether emissions increases, for purposes of

NSR/PSD analysis, are to be calculated only on

the basis of “maximum hourly emission rates,”

not “annual actual emissions.” Maximum hourly

emissions must increase before PSD permitting

is triggered; greater annual hours of operation,

which in turn result in more actual emissions,

42a

is irrelevant to the analysis.’

Both are pure legal questions.

The first question has not been addressed by

any appellate court since Wisconsin Electric Power Co.

(“WEPCO’) v. Reilly, 893 F.2d 901 (7th Cir.1990), a

decision I do not believe the 11™ Circuit will follow, at

least in part because WEPCO relied on the EPA

Environmental Appeals Board procedure held

unconstitutional by the 11™ Circuit in TJVA v.

Whitman, 336 F.3d 1236 (11th Cir.2003). The 11%

Circuit, alsoin 7VA v. Whitman, observed, but did not

decide, the “central disagreement” ... is whether

“routine’ should be defined relative to an industrial

category or to a particular unit.” 278 F.3d 1184,

1189(n.3) (11th Cir.2002), withdrawn in part,336 F.3d

1236 (11th Cir.2003).

The second question was answered adversely

(and by that I mean adversely to NPCA's chances of

‘ This is the holding of U.S. v. Duke Energy, 411 F.3d 539

(4th Cir.2005) rehearing denied--- F.3d ---- (August 30, 2005),

which this court has already indicated it would follow absent

appellate guidance on the issue from the 11" Circuit or the

Supreme Court. At the time of this writing, a Petition for Writ of

Certiorar! in Duke Energy has been filed by the Environmental

Defense Fund, et a/., but the Court has yet to rule on the Petition.

Docket No. 05-848, filed December 28, 2005. Duke Energy's

response is due February 6, 2005. If the United States has taken

a position on the Petition, I have been unable to find it.

43a

proving TVA's Colbert 5 1982-1983 work violated the

CAA) by the Fourth Circuit in U.S. v. Duke Energy,

411 F.3d 539 (4th Cir.2005) rehearing denied,--- F.3d

---- (August 30, 2005).

The answers to these issues could be dispositive

of NPCA's ability to prove its First and Second Cause

of Action claims. They are unlikely to come from the

D.C. Circuit, because NY v. EPA expressly declined to

express an opinion “... as to whether Congress

intended to require that EPA use identical regulatory

definitions of modification across the NSPS and NSR

programs. Cf United States v. Duke Energy, No.

04-1763, slip. op. at 11-19.” 413 F.3d 3, 20.° The 4"

Circuit's use of identical definitions of modification

across the NSPS and NSR programs was a critical

underpinning of its holding in Duke Energy.

Those cases still may not end the matter,

because the debate over “increased actual emissions”

versus “increased rate of emissions” seems determined

to rise up from what I thought was its NY v. EPA

coffin, but see Judge Williams's concurrence in the

denial of rehearing, supra, 431 F.3d 801, 2005 WL

3334349 (D.C.Cir.2005). Absent the Supreme Court's

granting certiorariin either NY v. EPAor U.S. v. Duke

Energy, if there is to be further guidance on these

issues, it appears it will have to come from the 11"

Circuit.

® The 1980 Rule was, technically, not before the Court in NY

v. EPA.

44a

Finally, if NPCA is right and I am wrong about the

Third Cause of Action, then NPCA will have the right

to prove that TVA has violated the Act on a daily basis

for more than twenty (20) years.

I think it can be said with reasonable certainty

that these issues will not, at the end of the day, be

decided by me. And, if any of the cases on my docket

are so related and intertwined that it would be

appropriate for them to be reviewed on appeal at or

around the same time, it is this action and Sierra Club

v. TVA.There is an identity of parties (NPCA not being

a plaintiff in Sierra Club v. TVA is insignificant since

Sierra Club is a plaintiff in both actions), the same

TVA generating plant (Colbert) is involved in both

actions, and the question for decision is the same:

what are the CAA violations at TVA's Colbert plant

that these plaintiffs will be permitted to attempt to

prove, and, if the plaintiffs are successful, what are the

appropriate remedies available for those violations?

And, while it may be irrelevant, I note that TVA

operates in Tennessee, which is like Alabama in that

it has adopted the 2% de minimis rule as a state

regulation, but mot as part of its SIP. See National

Parks Conservation Ass'n v. Tennessee Valley

Authority, 175 F.Supp.2d 1071 (E.D.Tenn.2001).

NPCA did not appeal the dismissal of that case, which

rested on the 2% de minimis rule. And the 11" Circuit

is well aware of Tennessee's 2% de minimis rule,

because National Parks Conservation Ass'n Vv.

Tennessee Valley Authority was cited and discussed in

45a

the summary judgment opinion that was reversed in

part by Svzerra Club v. TVA.Having said that,

Tennessee is in the 6", not the 11“, Circuit, and the

effect, if any, of National Parks Conservation Ass'n v.

TVA is reserved to the court(s) in Tennessee.

Similarly, while TVA supplies electricity to

Georgia, which is in the 11 “ Circuit, TVA does not

have any generating plants there. Georgia has a 40%,

not 20%, opacity hmit as part of its SIP. In a case

decided after my entry of summary judgment in Sierra

Club v. TVA, the Northern District of Georgia

approved the use of COMS (referred to as “CEM” and

“COM”) in a CAA citizen suit to prove violations of the

Georgia 40% opacity limit. Szerra Club v. Georgia

Power: Ge. Bes: Fi: Guae. 26: F207

(N.D.Ga.2004)( “Georgia Power” ). In its ruling, the

Georgia Power court granted summary judgment to

Sierra Club on thousands of violations of the CAA

occurring at older coal-fired units at Georgia Power's

Wansley plant, and set the matter for trial on

remedies only. There is no mention of a 2% de minimis

rule in Georgia Power, and there is no reported

citation of Georgia Power after the December, 2004

Order described above.

For these reasons, and the reasons stated in the

previous Orders on the First, Second, and Third

Causes of Action (does. 213, 215 and 217), I find that

there are no remaining issues before the court and

that a final Order dismissing the action is due to be

46a

entered.®

A separate Order will issue.

DONE this 17" day of January, 2006.

s/ VIRGINIA EMERSON HOPKINS

United States District Judge

* Should the Orders in Doc.'s 213, 215, and 217 be reversed

or modified, I would on remand, if it were still relevant, entertain

a motion by NPCA to alter or amend the applicable judgment so

as to permit NPCA to amend its Complaint to conform to the law

of the case as stated by the 11” Circuit, should such an

amendment be required to proceed.

47a

UNITED STATES DISTRICT COURT, N.D.

ALABAMA, NORTHWESTERN DIVISION.

NATIONAL PARKS CONSERVATION

ASSOCIATION, INC. and SIERRA CLUB, Plaintiffs

TENNESSEE VALLEY AUTHORITY Defendant.

No. Civ.A. 01-403-VEH.

Entered January 17" , 2006.

FINAL ORDER

HOPKINS, District Judge:

Plaintiffs National Parks Conservation

Association, Inc. (“NPCA”) and Sierra Club, Inc.

(“Sierra Club”) have filed an action under the citizen

suit provision of the Clean Air Act (“CAA” “the Act”),

42 U.S.C. § 7604(a) (2000) which, in three (3) separate

Causes of Action, asserts Tennessee Valley Authority

(“TVA”) violated the CAA by its 1982 work at the

Colbert Unit 5 plant (“the work”). NPCA says the

work constituted a “modification” under the CAA,

triggering the New Source Performance Standards

(“NSPS”), Non-Attainment New Source Review

(“NNSR”) and New Source Review (“NSR”), and

Prevention of Significant Deterioration (“PSD”)

standards of the CAA. Second Amended Complaint

(“SAC”). (Doc. 80.)

In the latter psrt of 2005, the court, acting on

TVA motions that had been pending for some time,

48a

entered orders on motions to dismiss filed by TVA

where TVA sought judgment on all three (3) NPCA

Causes of Action. See Doc. 213 and Doc. 215 (First and

Second Causes of Action); Doc. 217 (Third Cause of

Action).

For the reasons stated in the Memorandum

Opinion of even date herewith, and the reasons stated

in the previous Orders on the First, Second, and Third

Causes of Action (docs. 213,215 and 217), I find that

there are no remaining issues before the

court and that a final Order dismissing the action is

due to be entered, and it is hereby ORDERED that

this action be, and hereby is, DISMISSED with

prejudice.

This Order is FINAL.

DONE and ORDERED this 17" day of January,

2006.

s/ VIRGINIA EMERSON HOPKINS

United States District Judge

49a

UNITED STATES DISTRICT COURT, N.D.

ALABAMA, NORTHWESTERN DIVISION.

NATIONAL PARKS CONSERVATION

ASSOCIATION, INC. and SIERRA CLUB, Plaintiffs

TENNESSEE VALLEY AUTHORITY Defendant.

No. Civ.A. 01-403-VEH.

Entered December 21, 2005.

ORDER ON TENNESSEE VALLEY AUTHORITY

MOTION TO DISMISS THIRD CAUSE OF

ACTION

(Failure to Comply With Statutory Notice

Requirements)

HOPKINS, District Judge:

Before the court is the Motion filed by

Defendant Tennessee Valley Authority (“TVA”) to

dismiss the Third Cause of Action. (Doc. 96.) In the

Third Cause of Action, Plaintiffs National Parks

Conservation Association, Inc. (“‘NPCA”) and Sierra

Club, Inc. (“Sierra Club”) allege TVA, at Unit No. 5 of

its Colbert County coal-fired electricity generating

facility, has violated the New Source Performance

Standards (“NSPS”) of the CAA on a daily basis for

close to twenty (20) years.

TVA has moved to dismiss NPCA’s Third Cause

50a

of Action for failure to comply with pre-suit

notification requirement applicable to citizen suits

under the CAA. 42 U.S.C. 7604(b).

For the reasons stated in the’ Memorandum

Opinion of even date, TVA's Motion to Dismiss the

Third Cause of Action, which the court treats as a

motion for summary judgment, is GRANTED.

Judgment is hereby entered in favor of TVA and

against NPCA as to the Third Cause of Action.

DONE and ORDERED on December 21, 2005.

s/ VIRGINIA EMERSON HOPKINS

United States District Judge

5la

UNITED STATES DISTRICT COURT, N.D.

ALABAMA, NORTHWESTERN DIVISION.

NATIONAL PARKS CONSERVATION

ASSOCIATION, INC. and SIERRA CLUB, Plaintiffs

TENNESSEE VALLEY AUTHORITY Defendant.

No. Civ.A. 01-403-VEH.

Entered December 21, 2005

MEMORANDUM OPINION ON TENNESSEE

VALLEY AUTHORITY MOTION TO DISMISS

THIRD CAUSE OF ACTION

(Failure to Comply With Statutory Notice

Requirements)

HOPKINS, District Judge:

Plaintiffs National Parks Conservation

Association, Inc. (“‘NPCA”) and Sierra Club, Inc.

(“Sierra Club”) have filed an action under the citizen

suit provision of the Clean Air Act (““CAA” “the Act”),

42 U.S.C. § 7604(a) (2000) asserting Tennessee Valley

Authority (“TVA”) violated the CAA by its 1982 work

at the Colbert Unit 5 plant (“the work”). NPCA' says

the work constituted a “modification” under the CAA,

triggering the New Source Performance Standards

’ For economy’s sake, “NPCA” shall mean “NPCA and Sierra

Club” unless the context clearly indicates otherwise.

52a

(“NSPS”), Non-Attainment NSR ("NNSR")?, and

Prevention of Significant Deterioration ("PSD")

standards of the CAA. Second Amended Complaint

("SAC"). (Doc. 80.)

I. ISSUE PRESENTED

In its Third Cause of Action, NPCA allegesTVA,

at Colbert No. 5, has violated the New Source

Performance Standards ("NSPS") of the CAA on a

daily basis for close to twenty (20) years.

TVA has moved to dismiss NPCA's Third Cause

of Action for failure to comply with the pre-suit

notification requirement applicable to citizen suits

under the CAA. 42 U.S.C. § 7604(b). Because TVA has

filed exhibits in support of its Motion to Dismiss, the

TVA motion will be also treated as a motion for

summary judgment. After a review of the CAA, and

discussion of citizen suits in the CAA and other

statutes, the NPCA 60-day notice letter is reviewed

and the legal issues raised by it are discussed. For the

reasons stated in that review and discussion, I find the

NPCA Notice letter is insufficient to give TVA the

adequate notice required by the Act, requiring the

Third Cause of Action to be dismissed.

* The EPA has designated the counties around the Colbert

Plant as meeting the NAAQS, see Plaintiffs’ Memorandum in

support of Motion for Partial Summary Judgment (standing),

page 13, fn. 3. (Doc. 177.)

II. THE CLEAN AIR ACT

The Clean Air Act is codified at 42 U.S.C.

§§7401-767 (2000). The implementing regulations are

found at 40 C.F.R., pts. 50-99. The original Act and the

amending legislation can be found, respectively, at

Clean Air Act Amendment of 1970, Pub. L. No. 91-

604,84 Stat. 1676 (1970); Clean Air Act Amendments

of 1977, Pub. L. 95-95, 91 Stat. 685 (1977); Clean Air

Act Amendments of 1990, Pub. L. No. 101-549, 108

Stat. 2399 (1990).

"New source review" denotes a series of

provisions within the federal Clean Air Act

(Act). Congress enacted the Clean Air Act in

1970, with major amendments occurring in 1977

and 1990. The Act represents one of the

federal government's earliest efforts to protect

the environment through a comprehensive

regulatory scheme.

The Clean Air Act requires the Environmental

Protection Agency to establish baseline

"national ambient air quality standards"

(NAAQS), setting maximum _ permissible

concentrations for "criteria" pollutants. The Act

divides the United States into two types of

regions: those that are currently in compliance

with all of the NAAQS standards ("attainment

areas"), and those that are violating some or all

of these standards ("non-attainment areas").

The Act establishes

different emissions requirements for facilities in

each region, with stricter standards applicable

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to facilities in non-attainment areas.

The 1977 Amendments to the Clean Air Act

incorporated the new source review provisions.

These provisions were designed to ensure that

large industrial sources of air pollution included

modern pollution-control equipment when they

altered their facilities. New source review

mandated that the "best"

emissions-control technology be installed

whenever a “major" source was built,

replaced, or modified (creating, in NSR

terminology, a "new source" of air pollution).

NSR provides an exception to this _ best-

technology requirement for some "routine

maintenance" to major sources.

What qualifies as the "best" technology in turn

depends on the ambient air quality in the

surrounding region. Facilities seeking to build

or modify equipment in attainment areas are

subjected to "prevention of significant

deterioration" (PSD) review. To proceed with

their proposed projects,facilities must determine

whether new or increased emissions resulting

from these projects would cause the area to

exceed ambient air quality standards or to

suffer a "significant" deterioration in air quality.

PSD review requires that any new source

adhere to the "best available control technology"

(BACT)

standard, governing emissions of regulated

pollutants. BACT, a source-specific standard, is

generally understood to require the best

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pollution-control technology available, after

taking into account energy, economic and

environmental considerations.

Facilities seeking to build or modify structures

in NAAQS non-attainment areas are subject to

more stringent requirements. These facilities

must obtain pre-construction permits, certifying

that pollution from any new source will not

hinder the region's progress towards attainment

of the NAAQS standards. New sources must

install emissions-control equipment that meets

the stringent "lowest achievable emissions rate"

(LAER) standards. LAER standards are

generally stricter than BACT standards,

because they are set without any consideration

of energy or economic factors. Facilities seeking

to add sources in non-attainment areas must

show, furthermore, that they plan to "offset"

any projected emissions increases from these

new or modified sources with emissions

decreases in other areas of the same facility or

from other facilities in the non-attainment area.

Martin, The Reform of New Source Review: Toward A

More Balanced Approach, 23 Stan. Envtl. L.J. 35 1,

356-58 (2004) (citations oinittedd

The Act establishes a program of "cooperative

federalism" with a "division of labor between

individual states and EPA" for the attainment and

maintenance of national air quality goals. Sverra Club

v. EPA, 315 F.3d 1295, 1300 (11th Cir. 2002). EPA's

responsibility is to set air quality standards. For

56a

pollutants meeting certain criteria, EPA is responsible

for promulgating national ambient (i.e., outdoor) air

quality standards ("NAAQS"). 42 U.S.C. § 7409(a)

(2000). These standards must be sufficient to protect

the public health (with an adequate margin of safety)

and the public welfare (including effects on soils,

water, vegetation, manmade materials, animals,

visibility, etc.) from any known or anticipated adverse

effects. 42 U.S.C. §§ 7409(b)(D) & (2) (2000); 42 U.S.C.

§ 7602(h) (2000). In turn, a state, to achieve national

air quality standards, adopts an air quality plan

known as a State Implementation Plan ("SIP") that

controls emissions from specific sources. 42 U.S.C.§

7410.

Both the CAA and the SIPS enacted by states regulate

new and existing major stationary sources of air

pollution differently. In general, pew sources ~- i.e.,

sources constructed or "modified" after the effective

date of the applicable statute or implementing

regulation - must undergo preconstruction review and

permitting and, as part of this permitting process, arc

required to install emission controls capable of

meeting specified emission rates. The thinking at the

time Congress chose to impose these obligations on

new sources was that, as old plants were retired and

new power plants built, the new plants or sources

could incorporate these more stringent emissions

controls into their design and construction more cost-

effectively and efficiently than existing sources. See,

e.g., H.R. Rep. No. 95-294, 95th Cong., 1" Sess., at 185,

reprinted in 1977 U.S.C.C.A.N. 1077, 1264 (1977).°

There are three (3) separate new source

programs under the CAA. The oldest of these is the

federal New Source Performance Standards program

(NSPS) enacted in 1970, 42 U.S.C. § 7411. The other

two new source programs -Nonattainment New Source

Review (NNSR) and Prevention of Significant

Deterioration (PSD) - were enacted in 1977 and are

companion programs that apply on a pollutant-by-

pollutant basis depending on whether the source is

located in an attainment area (PSD) or a

nonattainrnent area (NNSR) for that pollutant. See

generally, TVA v. Whitman, 336 F.3d t236, 1244

nn.12-14 (1 Ith Cir. 2003); United States v. Duke

Energy Corp., 278 F. Supp. 2d 61 9,627-30 (M.D.N.C.

* Congress’ reasoning was sound, the consequences

most likely unintended. For a number of reasons, ranging

from decreased demand for electricity, energy prices that

were considerably lower than projected at the time (1970),

to local opposition ("not in my back yard" or "NIMBY"

litigation), and increased construction costs, there were very

few new power plants built in the decades after enactment

of the CAA, and the industry instead “stretched” the life

expectancy of its facilities through "life extension" projects.

This in turn led to litigation over what work at a given

plant makes that plant or unit a “new source” and what

work falls under the “routine maintenance and repair"

exception and is therefore exempt from NSR/NNSR/PSD

requirement and permitting. This tension is seen most

recently in response to a series of 1999 enforcement actions

filed by the EPA in the waning days of the second Clinton

administration.

58a

2003). The requirements of the Alabama PSD and

NNSR provisions are triggered when a new source is

built or when an existing major stationary source

constructs a “major modification." See AAPCC

Regulations 16.4.8 (Ex. 5 at 10) & 16.3.2(c) (Ex. 6 at

16-8). If triggered, these new source requirements

require installation of pollution control equipment that

represents best available control technology (BACT)

(under the PSD program) or lowest achievable

emission rate (LAER) (under the NNSR program).

Existing sources, by contrast, fall under other

provisions of the Act. Existing sources are not required

to install emission controls such as BACT or LAER

unless, among other things, work performed there is a

“major modification" as discussed above. The court

does not understand NPCA to allege TVA has violated

these provisions with respect to Colbert 5 except to the

extent describe above, i.e., the failure to obtain the

permits NPCA says were required by the work.* These

include the emissions limitations and _ other

requirements established by the states in their SIPS

to achieve EPA's NAAQS, hazardous air pollutant

standards, visibility protection programs, and acid

rain control programs. 42 U.S.C. §§ 7410, 7412, 7491,

7492 & 7651-765lo (2000). TVA says, and NPCA

agrees, that the area around the entire Colbert plan is

in attainment of all national air quality standards and

has been in attainment since the early 1990's.

* As described infra, certain plants were, because of their age,

"grandfathered". Colbert 5 is part of one such plant.

59a

For further court discussions of the conflicts in CAA

emissions enforcement, compare, e.g., United States v.

Ohio Edison, 276 F.Supp. 2d 829 (S.D. Ohio 2003),

with United States v. Duke Energy Corp., 278 F.Supp.

2d 619 (M.D.N.C. 2003); and Wisconsin Electric

Power Co. v. Reilly, 893 F.2d 90 1 (7" Cir. 1990) ("

WEPCO "), with US. v. Duke Energy, 41 1 F.3d 539

(4th Cir. 2005). For the current state of emissions

rules, and acomprehensive history of the various EPA

emission rules and the litigation over those rules, see

NY v. US. EPA, 413 F.3d 3 (D.C. Cir. 2005).

Turning to the interplay of the emissions

limitations of the Clean Air Act, the emissions

regulations promulgated thereunder by Alabama's

Department of Environment Management (“ADEM”),

and the effect of Alabama's CAA State Implementation

Plan (SIP) on those regulations, reference is made to

the Eleventh Circuit's November 22, 2005 decision in

Sierra Club v. TVA, F.3d , Slip Opinion No. 04-1

5324,2005 WL 3110516 (11 th Cir., November 22,

2005), where the Court of Appeals, in an action also

involving TVA's Colbert plant, affirmed in part,

reversed in part, and remanded this Court's

September 14, 2004 Memorandum Opinion and Order

in Sierra Club v. TVA, No. CV-02-2279-VEH (TVA Ex.

31). (Inter alia, Alabama's ADEM 2% de minimis

emissions rule violates the Act, and was never

approved by the EPA and therefore never became part

of Alabama's SIP). More on Sierra Club v. TVA later.”

* Alabama's PSD program has also been recently

reviewed by this court, United States v. Alabama Power Co.,

60a

Earlier this year, prior to the Eleventh Circuit's

opinion in Sierra Club v. TVA, supra, the D.C. Circuit

rejected in part and sustained in part numerous

challenges to the latest EPA emission rule ("the 2002

rules"). NY v. US. EPA, 413 F.3d 3 (D.C. Cir. 2005).

Ill. TVA's COLBERT UNIT 5

There is no dispute that Unit 5 of the Colbert plant

was built before enactment of the new source

provisions of the 1970 and 1977 CAA amendments,

and falls under new source rules only if the unit

underwent a "major modification." As already noted,

NPCA says, and TVA denies, that the work done at

Colbert Unit 5 in the early 1980s was a "major

modification" that converted Colbert Unit 5 into a

"new source."®

372 F.Supp. 2d 1283 (N.D. Ala. 2005). Alabama's NNSR

program Is

similar.

* As noted in the court's Order on TVA Motion to

Dismiss First and Second Causes of Action (Statute of

Limitations), newspaper articles submitted in support of that

Motion quote

TVA as saying the Colbert plant was poorly designed, out of

service one-third (1/2) of the time, and the 1982 work was a

"rehabilitation". TVA Ex.'s 16, 17 in support thereof.

6la

IV. STANDARD OF REVIEW

Under Fed. R. Civ. P. 56(c), summary judgment

is proper "if the pleadings,depositions, answers to

interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party

is entitled to judgment as a matter of law." See Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Chapman v.

Al Transport, 229 F.3d 1012, 1023 (lth Cir. 2000).

The party asking for summary judgment

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