National Parks & Conservation Ass'n v. Tennessee Valley Authority

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
_________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 4, 2007
No. 06-10729
THOMAS K. KAHN
_________________________
CLERK

D.C. Docket No. 01-00403-CV-HS-NW

NATIONAL PARKS AND
CONSERVATION ASSOCIATION INC.,
SIERRA CLUB,

Plaintiffs-Appellants,

versus

TENNESSEE VALLEY AUTHORITY,

Defendant-Appellee.

_________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(October 4, 2007)

Before EDMONDSON, Chief Judge, TJOFLAT, and GIBSON,* Circuit Judges.

GIBSON, Circuit Judge.

* Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
 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.

I.

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

2
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. Sierra

Club v. United States EPA, 315 F.3d 1295, 1300, 1296 (11th Cir. 2002). Each

3
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. Id.; see also 42 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, 13 (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, e.g., 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,1 which requires the proponent of a

1
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-
7492. 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

4
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. See 42 U.S.C. § 7475(a); Tenn. Valley Auth.

v. Whitman, 336 F.3d 1236, 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. Id.

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

that Unit 5’s emissions of nitrogen oxide and particulate matter subject TVA to the Prevention of
Significant 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.

5
come into compliance 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, 1141 (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. Id. 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

6
Alabama’s State Implementation Plan. Id. 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. Id. 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

7
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

8
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. Accordingly, 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 also Fed. R. Civ. P. 56(c). We view the evidence in the

9
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’l 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, Sierra 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

10
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 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. 3M Co.

(Minn. Mining & Mfg.) v. Browner, 17 F.3d 1453, 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

11
also Nat’l 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 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 (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. Ill. 2003); United States v. Murphy Oil USA, Inc., 143 F.

12
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 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 Ill.

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 seq. 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,

compare 42 U.S.C. § 7475 (setting forth requirements to be met prior to

13
construction), with 42 U.S.C. § 7661 et seq. (governing operating permits) and 42

U.S.C. § 7411(e) (“[p]rohibited 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 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.” Ill.

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), aff’d on other grounds, 411 F.3d 539 (4th Cir. 2005), vacated by

Envtl. Def. v. Duke Energy Corp., 127 S. Ct. 1423 (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

14
directly analogous because the state regulations at issue in Duke Energy integrated

construction and operating permits, see 278 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 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(l) (1981). This source-specific Best

Available Control Technology then would be specified for installation in the

15
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

“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. Id. 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. Id. at 418-19. Relying on this

16
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 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. A careful review of Alabama’s preconstruction permitting program

17
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

proposed emissions 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 Control Comm’n Reg.

16.4.2(l) (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,2 we conclude that an important difference in the states’ plans

2
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)(j)(3) states: “A major

18
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

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 . . . shall 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’l Parks, 480 F.3d at 418-19, even though
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.

19
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’l Parks,

480 F.3d at 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 to 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 source 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

20
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 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 as a 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

21
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 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 (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).

22
 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 (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 (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).

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 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 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 Sierra 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

24
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’l 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 those claims. Consequently, we need not address TVA’s

laches defense.

III.

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, see

42 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, 2000,3 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

3
The Sierra Club sent a separate letter shortly thereafter notifying TVA that it intended to join
National Parks’ suit.

25
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.3d 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 (1989); Nat’l Envtl. Found. v. ABC Rail 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.

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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 TVA

violated 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
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, see 42 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. §

27
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 on other grounds, 505 U.S. 557 (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

28
from 1983, and identified Subpart Da (40 C.F.R. §§ 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 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

(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.

29
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

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[]

substitute[s] 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 alleging - not what the citizen
could allege if the citizen knew more or cared about other possible
transgressions.

30
Cal. 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.

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).

31
For the above reasons, the dismissal of this action is affirmed in its entirety.

32