In another recent U.S. Court of Appeals for the Fifth Circuit decision, on October 1, 2018, the Fifth Circuit affirmed, in part, the District Court’s ruling that the general federal statute of limitations, 28 U.S.C. § 2462, required the dismissal of the government’s civil enforcement action in the case of U.S., et al., v. Luminant Generation Co., LLC, et al.
The Fifth Circuit agreed that the statute barred the imposition of any civil fine for the alleged unlawful construction operations regarding the modification of major emitting facilities contrary to Section 7475(a) of the Clean Air Act (CAA). But, the Fifth Circuit remanded the injunctive-relief claims to the District Court for further consideration.
The government’s complaint was filed on August 13, 2013, but these construction modifications were made before August 16, 2008, and the civil enforcement action was therefore subject to the statute of limitations. However, the panel majority also held that the “concurrent remedies” doctrine does not apply to the federal government; consequently, the government’s request for injunctive relief was not barred by the dismissal of the request for civil fines and penalties.
Significantly, the Fifth Circuit rejected, as have many other courts, that the operation of an unpermitted facility in these circumstances is every day the plant is operated is “a fresh, daily violation of Section 7475(a).”