Title V Permit/Clean Air Act: Federal District Court Addresses Statute of Limitations Issue

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

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A United States District Court (D. Colorado)(“Court”) addressed in a March 30th Order issues arising out of a Clean Air Act Citizen Suit enforcement action (“Action”). See Wildearth Guardians, et al. v. Mountain Coal Company, et al., 2021 WL 1186669.

One of the issues addressed in the context of a Motion to Dismiss was whether the statute of limitations has expired in regards to an allegation that a facility had failed to obtain a Clean Air Act Title V permit.

Wildearth Guardians (collectively “Wildearth Guardians”) and other environmental organizations filed a Clean Air Act Action against Mountain Coal Company and Arch Resources (collectively “MCC”) alleging they were operating the West Elk Coal Mine (“Mine”) without a Clean Air Act Prevention of Significant Deterioration (“PSD”) construction permit and a Title V operating permit (“Title V Permit”).

The Order indicates that the Mine had been in operation since the 1980s. A substantial expansion was begun in January 2020. Wildearth Guardians subsequently filed the referenced action.

MCC filed a Motion to Dismiss. The Motion to Dismiss was referred to a Magistrate who held a hearing and ordered supplemental briefing.

One of the two issues the Magistrate addressed was whether the Title V Action was barred by the applicable five-year statute of limitations. (The parties agreed that the five-year statute of limitations was applicable [28 U.S.C. § 2462].)

28 U.S.C. § 2462 provides in part that an action:

. . . shall not be entertained unless commenced within five years from the date when the claim first accrued.

The Court declined to accept the Magistrate’s decision regarding the Title V permit statute of limitations issue. It distinguished the 10th Circuit Court of Appeals (“10th Circuit”) decision in Sierra Club v. Oklahoma Gas & Electric Co., 816 F.3d 666, 671-72 (10th Cir. 2016) which concluded that the statute of limitations for a PSD permit claim begins to run at the commencement of a modification that requires such a permit. The 10th Circuit rejected the theory that each day of the modification constitutes a new, discrete violation for statute of limitation purposes. In other words, the 10th Circuit determined that the modification should be considered a single course of conduct properly characterized as a single, continuing violation.

The Court determined that the 10th Circuit analysis did not apply to the MCC operations (at least on the current record). It noted:

  • Modification and construction occur for limited periods of time, while operations might occur in perpetuity. Defendants’ asserted application of Sierra Club here leads to the proposition that if it began operating outside of the limitations period without a proper permit, it may continue to do so indefinitely.

The basis for distinguishing Sierra Club was the more narrow focus on conduct involving construction or modification of a facility.

The Court noted neither Wildearth or MCC’s reference to any binding authority for analyzing statute of limitation issues in the context of a Title V operating permit. As a result, it concluded that Wildearth for purposes of responding to the Motion to Dismiss sufficiently alleged that the claim that MCC failed to obtain a Title V operating permit is not barred by the statute of limitations.

A copy of the Order can be downloaded here.

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