                                                                   FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                              March 8, 2016
                                      PUBLISH             Elisabeth A. Shumaker
                                                              Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 SIERRA CLUB,

             Plaintiff - Appellant,
 v.                                                  No. 14-7065
 OKLAHOMA GAS AND ELECTRIC
 COMPANY,

             Defendant - Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE EASTERN DISTRICT OF OKLAHOMA
                  (D.C. NO. 6:13-CV-00356-JHP)


David C. Bender, McGillivray Westerberg & Bender LLC (Jacquelyn L. Dill, Dill
Law Firm, P.C., Oklahoma City, Oklahoma, with him on the briefs), Madison
Wisconsin, for Appellant.

Brian J. Murray, Jones Day (Charles T. Wehland and Meghan E. Sweeney, Jones
Day, Chicago, Illinois, and Donald K. Shandy and Patrick R. Pearce, Jr., Ryan
Whaley Coldiron Shandy PLLC, Oklahoma City, Oklahoma, with him on the
brief) Chicago, Illinois, for Appellee.


Before TYMKOVICH, Chief Judge, EBEL, and BRISCOE, Circuit Judges.


TYMKOVICH, Chief Judge.
      Sierra Club brought a citizen suit seeking civil penalties against Oklahoma

Gas and Electric Company “(OG&E)” for alleged violations of the Clean Air Act.

Sierra Club asserts that in March and April of 2008, OG&E, the owner and

operator of a coal-fired power plant in Muskogee, modified a boiler at the plant

without first obtaining an emission-regulating permit as required under the Act.

Because Sierra Club filed its action more than five years after construction began

on the plant, the district court dismissed its claim under Rule 12(b)(6) as barred

by the statute of limitations. The court also dismissed Sierra Club’s claims for

declaratory and injunctive relief because these remedies were predicated on the

unavailable claim for civil penalties.

      We agree with the district court and conclude that Sierra Club’s claim for

civil penalties is statutorily time-barred under 28 U.S.C. § 2462 because it was

brought more than five years after the date when the cause of action first accrued.

In addition, Sierra Club’s claims for declaratory and injunctive relief are

precluded because they are based on the same facts as the time-barred claim for

civil penalties.

      Accordingly, we AFFIRM.

                                 I. Background

      The Clean Air Act (CAA) directs states to achieve and maintain air quality

standards set by the EPA. Each state must adopt a state implementation plan

(SIP) for meeting these goals, subject to EPA approval. See 42 U.S.C.

                                         -2-
§§ 7407(a), 7410(a), 7410(k). In “attainment” areas, where air quality is already

up to standards, see id. § 7407(d)(1)(A)(ii), SIPs must comply with the federal

Prevention of Significant Deterioration (PSD) program, see id. §§ 7470–7492.

The purpose of this program is to protect air quality from significant deterioration

caused by new emissions. See id. § 7470. To further that aim, the PSD program

provides that a “major emitting facility” cannot be constructed or modified

without a permit that sets emission limitations. Id. § 7475(a)(1) 1; see also id.

§ 7479(2)(c) (defining “construction” to include “the modification . . . of any

source or facility”). Oklahoma’s SIP, which has been approved by the EPA,

honors this requirement by providing that “[n]o person shall cause or allow the

construction or modification of any source” without obtaining a PSD permit from

the Oklahoma Department of Environmental Quality. Oklahoma SIP Regulations



      1
          In relevant part, the statute reads:

              (a) Major emitting facilities on which construction is
              commenced

              No major emitting facility on which construction is
              commenced after August 7, 1977, may be constructed in
              any area to which this part applies unless—

              (1) a permit has been issued for such proposed facility in
              accordance with this part setting forth emission limitations
              for such facility which conform to the requirements of this
              part . . . .

42 U.S.C. § 7475.

                                           -3-
§ 1.4.2(a)(1); 2 see also id. § 1.4.4 (setting specific requirements that major

emission sources must meet to receive a permit).

      According to the complaint, OG&E began modifying a boiler at its

Muskogee power plant sometime in March 2008. The plant is a major emitting

facility located in an attainment area and therefore was subject to the PSD permit

requirement. OG&E did not obtain a PSD permit before commencing the project.

Nor did the company secure one before the modification ended sometime in April

2008. Sierra Club alleges that the modification resulted in an increase in the

emission of pollutants.

      Although the modification was completed in April 2008, Sierra Club took

no legal action until 2013. At that time, it notified OG&E that it intended to

bring suit under the CAA, which grants any person a cause of action against an

entity that constructs or modifies a major emitting facility without a PSD permit.

See 42 U.S.C. § 7604(a)(3). Sierra Club sought civil penalties under 42 U.S.C.

      2
          In relevant part, the Oklahoma SIP reads:

              No person shall cause or allow the construction or
              modification of any source without first obtaining an
              authority to construct or modify from the Commissioner as
              to comply with all applicable air pollution rules and
              regulations, and not to exceed ambient air quality
              standards or applicable federal new source performance
              standards (NSPS) and national emission standards for
              hazardous air pollutants (NESHAPS), Sections 111 and
              112 of the Federal Clean Air Act.

Oklahoma SIP Regulations § 1.4.2(a)(1).

                                          -4-
§ 7413(e)(2) for each day of unpermitted modification activity, as well as

declaratory relief and an injunction requiring OG&E to obtain a PSD permit and

upgrade its pollution controls so as to comply with Oklahoma regulations. The

parties subsequently entered an agreement that tolled the statute of limitations

effective April 1, 2013.

       Because the CAA does not specify a statute of limitations for bringing a

citizen suit for civil penalties, the default five-year statute of limitations for civil

penalties, fines, and forfeitures under federal law applies. See 28 U.S.C. § 2462.

Thus, the parties agreed that any penalties originating before April 1, 2008—five

years prior to the tolling agreement—were time-barred. The question was

whether Sierra Club could maintain a claim for penalties originating on April 1,

2008 or later.

       The district court dismissed Sierra Club’s claim for civil penalties, holding

any failure on OG&E’s part to obtain a PSD permit would have been a violation

that accrued at the commencement of modification of the boiler, which was before

April 1, 2008. The court also dismissed Sierra Club’s equitable claims for

injunctive and declaratory relief because they were predicated on the time-barred

legal claim. 3


       3
         In a separate cause of action, Sierra Club also asserted that the plant had
exceeded limits on opacity and particulate matter outlined in a 1978 permit that
authorized the initial construction of the boiler. Sierra Club voluntarily dismissed
this claim.

                                           -5-
                                   II. Analysis

      Sierra Club makes two arguments. First, it contends that the statute of

limitations does not bar its claim for civil penalties because OG&E continued to

violate the CAA until it completed the modification, which was sometime after

April 1, 2008. Second, it asserts that its claims for equitable relief are not

expired because they are separate from its claim for civil penalties; Sierra Club

seeks equitable relief as an alternative remedy, rather than as a means to enforce

its civil penalties claim.

      We consider these arguments in turn, first holding the statute of limitations

bars Sierra Club’s suit for civil penalties because the claim first accrued when

modification commenced. We next hold Sierra Club’s actions for injunctive and

declaratory relief are precluded by the concurrent remedy doctrine. 4

      A. Statute of Limitations

      We review de novo “a district court’s ruling regarding the applicability of a

statute of limitations.” Plaza Speedway, Inc. v. United States, 311 F.3d 1262,

1266 (10th Cir. 2002) (internal quotation mark omitted). A statute of limitations

defense “may be appropriately resolved on a [Rule] 12(b) motion when the dates

given in the complaint make clear that the right sued upon has been



      4
        As we explain below, the concurrent remedy doctrine bars claims that
“could be brought on the same facts.” United States v. Telluride Co., 146 F.3d
1241, 1248 n.12 (10th Cir. 1998).

                                         -6-
extinguished.” Lee v. Rocky Mountain UFCW Unions & Emp’rs Tr. Pension

Plan, No. 92-1308, 1993 WL 482951, at *1 (10th Cir. Nov. 23, 1993) (Table).

      An action seeking civil penalties for failure to obtain a PSD permit must be

brought “within five years from the date when the claim first accrued.” 28 U.S.C.

§ 2462. The parties agree that a PSD permit is a pre-construction or pre-

modification requirement, but disagree as to whether the beginning of the

limitations period is delayed as long as the unpermitted construction or

modification process continues. Sierra Club argues that the statute of limitations

resets on each day of unpermitted construction or modification, which in this case

included days after April 1, 2008.

      Sierra Club raises two distinct theories: (1) OG&E committed a new,

discrete violation on each day of unpermitted modification, which we refer to as a

theory of “repeated violations”; or (2) OG&E committed a single violation when

it began unpermitted construction, but that violation continued until construction

was completed. We refer to the latter as a theory of “continuing violation.” In

Sierra Club’s view, if either of these theories is correct, then the statute of

limitations does not preclude civil penalties for days of modification beginning

with April 1, 2008. In contrast, OG&E maintains that the failure to procure a

PSD permit generated a single claim for one day’s penalty that accrued only on

the first day of modification, which of course occurred before April 1, 2008.




                                          -7-
      We need not consider whether OG&E’s position is correct because we

conclude that Sierra Club’s claim for penalties is time-barred for other reasons.

The statute of limitations begins to run as soon as a claim “first accrue[s].”

(emphasis added). Id. As explained below, if any form of violation exists beyond

the first day of unpermitted modification, it is best characterized as a continuing

violation rather than a series of repeated violations. 5 And because this particular

violation first accrued when modification commenced, the statute under § 2462

began to run on that date. That was more than five years before Sierra Club

brought suit, and any penalties are accordingly time-barred.

      A single violation continues over an extended period of time “when the

plaintiff’s claim seeks redress for injuries resulting from a series of separate acts

that collectively constitute one unlawful act,” as opposed to “conduct that is a

discrete unlawful act.” Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir.

2009) (internal quotation marks omitted) (quoting Nat’l R.R. Passenger Corp. v.

      5
         The distinction between a single, continuing violation and repeated,
discrete violations is important because an entirely new violation would first
accrue apart from the other violations in the series and would begin a new
statutory clock. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)
(holding that in the case of discrete discriminatory acts, as opposed to a hostile-
work-environment claim involving multiple acts as part of the same claim,
“[e]ach discrete discriminatory act starts a new clock for filing charges alleging
that act”); Figueroa v. D.C. Metro. Police Dep’t, 633 F.3d 1129, 1135 (D.C. Cir.
2011) (“each violation gives rise to a new cause of action, each [cause of action]
begins a new statute of limitations period” (quoting Knight v. Columbus, 19 F.3d
579, 582 (11th Cir. 1994))). In contrast, a single, continuing violation would not
extend the limitations period of § 2462 because the statute would begin to run as
soon as that violation first accrued and would not reset thereafter.

                                          -8-
Morgan, 536 U.S. 101, 117 (2002)). In other words, one violation continues

when “the conduct as a whole can be considered as a single course of conduct.”

Birkelbach v. SEC, 751 F.3d 472, 479 n.7 (7th Cir. 2014). The violation must

involve some affirmative conduct within the limitations period and “not merely

the abatable but unabated inertial consequences of some pre-limitations action.”

Poster Exch., Inc. v Nat’l Screen Serv. Corp., 517 F.2d 117, 128 (5th Cir. 1975).

      That is the situation when an emissions facility is constructed or modified

without a permit, as constructing or modifying a facility is best characterized as a

single, ongoing act. To repeat, the CAA prohibits unpermitted construction or

modification of a “major emitting facility.” 42 U.S.C. § 7475(a)(1). It is the act

of constructing itself that is unlawful, see Sierra Club, Inc. v. Sandy Creek

Energy Assocs., 627 F.3d 134, 141 (5th Cir. 2010) (holding a related CAA

preconstruction requirement “simply renders the act of constructing itself

unlawful”). “Construct” is an “active verb[] that ha[s] force after . . .

construction . . . has begun.” Wildearth Guardians v. Lamar Utils. Bd., Civil

Action No. 1:09-CV-02974- DME-BNB, 2010 WL 3239242, at *5 (D. Colo. Aug.

13, 2010). Thus, “construct” should not be read to encompass a disjointed series

of discrete acts of construction. To “construct” is an ongoing project.

Accordingly, if we accept Sierra Club’s argument that some form of violation

exists beyond the first day of modification, it must be characterized as a single,

continuing violation.

                                         -9-
      Sierra Club argues that where a continuing violation exists, the limitations

period under § 2462 does not begin to run until the final day of the violation—

here, the final day of unpermitted modification, which was sometime after April

1, 2008. Although we could consider this argument forfeited because it was not

raised below, we reject it anyway. 6 The specific statute of limitations at issue

begins to run when a claim “first accrue[s].” 28 U.S.C. § 2462 (emphasis added).

“[A] claim accrues when the plaintiff has a complete and present cause of action.”

Gabelli v. SEC, 133 S. Ct. 1216, 1220 (2013) (internal quotation marks omitted).

In other words, a claim accrues as soon as “the plaintiff can file suit and obtain

relief.” Heimeshoff v. Hartford Life & Accident Ins. Co., 134 S. Ct. 604, 610

(2013) (internal quotation marks omitted). And a continuing violation is

actionable even before the last act of the violation where the conduct that has

already occurred is sufficient to support a claim. See Nat’l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 117 (2002) (“As long as the employer has engaged in

enough activity to make out an actionable hostile environment claim, an unlawful

employment practice has ‘occurred,’ even if it is still occurring.”).




      6
          Sierra Club claims that it did raise this argument below, but the instances
it cites appear to advance a repeated violations theory, rather than a continuing
violation theory. “[V]ague, arguable references to a point in the district court
proceedings do not preserve the issue on appeal.” Lyons v. Jefferson Bank & Tr.,
994 F.2d 716, 721 (10th Cir. 1993) (alterations omitted). And raising a related
theory is also insufficient. Id. at 722.

                                        -10-
      In this case, it is clear that Sierra Club could have brought suit for the PSD

permit violation on the first day of modification. Even one day of unpermitted

modification would have presented a “complete and present” violation of the

statute. See 40 C.F.R. § 51.166(a)(7)(iii) (“No new major stationary source or

major modification to which the requirements [herein] apply shall begin actual

construction without a permit that states that the major stationary source or major

modification will meet those requirements.” (emphasis added)); United States v.

Midwest Generation, LLC, 720 F.3d 644, 647 (7th Cir. 2013) (“The violation is

complete when construction commences without a permit in hand.”); see also

United States v. EME Homer City Generation, L.P., 727 F.3d 274, 285 (3d Cir.

2013) (quoting the same). Consequently, Sierra Club’s cause of action first

accrued prior to April 1, 2008, even if the violation continued until some later

date. Any penalties stemming from the alleged violation are therefore time-

barred.

      Sierra Club asserts that because “[a] penalty may be assessed for each day

of violation,” 42 U.S.C. § 7413(e)(2), the claim reaccrues on each day of a

continuing violation. But whether the claim reaccrues does not answer or even

address when it first accrues. We see a difference between the availability of a

statutory penalty and the initial accrual of the violation giving rise to penalties.

      Next, Sierra Club cites four cases for the claim that a continuing violation

extends the deadline to file suit under § 2462. Three of them are easily

                                         -11-
distinguished. In the first, Havens Realty Corp. v. Coleman, the Supreme Court

held “where a plaintiff, pursuant to the Fair Housing Act, challenges not just one

incident of conduct violative of the Act, but an unlawful practice that continues

into the limitations period,” the statutory clock begins upon “the last asserted

occurrence of that practice.” 455 U.S. 363, 380–81 (1982). Havens concerned a

different statute of limitations employing substantially different language: “A

civil action shall be commenced within one hundred and eighty days after the

alleged discriminatory housing practice occurred.” Id. at 380 n.22 (internal

quotation marks omitted). That statute allowed the limitations period to continue

as long as the discriminatory practice “occurred.” Id. at 381. In contrast, the

clock under § 2462 begins only once, when a claim first accrues. If the

limitations period under § 2462 reset each day, the statutory term “first” would

have no operative force. In other words, the statute could just as easily state that

the limitations period begins whenever “the claim accrues.”

      Second, Sierra Club’s reliance on United States v. Jaynes, 75 F.3d 1493

(10th Cir. 1996), as well as its reliance on our unpublished decision in United

States v. Shaw, 150 F. App’x 863 (10th Cir. 2005) are equally unavailing. Those

cases involved the distinct “continuing offense” doctrine in the criminal context.

There, a “continuing offense” “is a term of art” that we generally avoid applying

unless “the explicit language of the substantive criminal statute compels such a

conclusion, or the nature of the crime involved is such that Congress must

                                         -12-
assuredly have intended that it be treated as a continuing one.” Jaynes, 75 F.3d at

1506 (internal quotation marks omitted). More importantly, like Havens, these

cases did not concern the unique “first accrued” language of § 2462.

      Lastly, Sierra Club points to a Fifth Circuit administrative appeal for the

proposition that the beginning of the limitations period under § 2462 is extended

as long as a violation continues. In Newell Recycling Co. v. EPA, the Fifth

Circuit upheld an administrative determination that a claim against a recycling

facility’s improper disposal of pollutants did not accrue until the facility properly

disposed of the contaminated soil. 231 F.3d 204, 206–07 (5th Cir. 2000). As a

result, the limitations period under § 2462 did not begin to run until the proper

disposal, i.e., the end of the violation. Id. at 206. We find this holding

unpersuasive. First, the court deferred to the interpretation of the administrative

board and did not undertake a de novo review of the statute. Second, the board’s

reasoning that no claim “accrued” until the violative conduct ended is inconsistent

with more recent Supreme Court cases that hold a claim accrues “when the

plaintiff can file suit and obtain relief.” Heimeshoff, 134 S. Ct. at 610 (internal

quotation marks omitted); see also Gabelli, 133 S. Ct. at 1220 (“[A] claim accrues

when the plaintiff has a complete and present cause of action.” (internal quotation

marks omitted)). Finally, the court nowhere addressed the significance of the

phrase, “first accrued,” in § 2462. Thus, to the extent that Newell suggests the




                                         -13-
limitations period under § 2462 does not begin to run as long as an already-ripe

violation continues, we disagree.

      As a final note, we have observed that “the continuing violation doctrine is

premised on the equitable notion that the statute of limitations should not begin to

run until a reasonable person would be aware that his or her rights have been

violated.” Davidson v. Am. Online, Inc., 337 F.3d 1179, 1184 (10th Cir. 2003)

(internal quotation marks omitted). It follows that “a continuing violation claim

fails if the plaintiff knew, or through the exercise of reasonable diligence would

have known” of the injury when it began. Id. at 1184 (internal quotation marks

omitted). Here, nothing prevented Sierra Club from discovering, within five

years, that it had an actionable claim as soon as OG&E began construction. 7

      In sum, § 2462 requires that a suit be filed within five years of when a

claim first accrues, which in this case was when OG&E commenced modification

of the boiler. Because Sierra Club brought suit more than five years after that

date, its claim is now time-barred.

      B. Concurrent Remedy Doctrine

      Sierra Club also seeks declaratory relief and an injunction requiring OG&E

to obtain a PSD permit and upgrade its pollution controls. But it relies on the


      7
        We express no opinion on OG&E’s exposure to civil penalties had a
timely suit been commenced. See 42 U.S.C. § 7413 (allowing civil penalties for
each day of violation of the CAA). We only hold that Sierra Club knew it had a
cause of action when OG&E commenced construction.

                                        -14-
same theory that underlies its claim for civil penalties: OG&E unlawfully

modified a boiler at the Muskogee plant without a permit. 8 Even so, Sierra Club

contends that if its suit for civil fines is time-barred, the statute of limitations has

no effect on its equitable claims. We disagree because the equitable claims are

based on the same facts supporting the time-barred legal claim.

      Although § 2462 bars Sierra Club’s suit for civil penalties, its language

does not, in and of itself, limit actions for equitable relief. See United States v.

Telluride Co., 146 F.3d 1241, 1245 (10th Cir. 1998). Nonetheless, the concurrent

remedy doctrine provides that a statute barring a legal claim will also bar an

equitable claim “when the jurisdiction of the federal court is concurrent with that

at law, or the suit is brought in aid of a legal right.” Russell v. Todd, 309 U.S.

280, 289 (1940). This rule applies whenever “an action at law or equity could be

brought on the same facts.” Telluride, 146 F.3d at 1248 n.12.

      Relying on Russell, 309 U.S. at 289, Sierra Club contends that an equitable

action is only brought “in aid of” a legal right when it would be necessary to

effectuate a legal remedy. In Russell, a bank’s shareholders were individually

responsible for the bank’s debts. Id. When the bank’s creditors sued the

shareholders, the district court needed to determine the extent of liability for each


      8
        Sierra Club concedes, “The only claim at issue in this appeal is Sierra
Club’s claim that by constructing a modification to its Muskogee coal-fired power
plant without a permit, the Oklahoma Gas & Electric Company violated 42 U.S.C.
§ 7475(a).” Aplt. Br. at 4.

                                          -15-
shareholder. To do that, the court first had to exercise its equity jurisdiction to

perform an assessment that would uncover the relevant facts. Id. at 285–86. The

Supreme Court held the primary action was itself an action in equity, id. at

286–87, and therefore that a legal statute of limitations did not apply, id. at 289.

The Court explained, however, that where the primary claim is a legal claim

barred by a legal statute of limitations, the exercise of equity jurisdiction to

determine the underlying facts would also be barred. Id. Sierra Club argues that

this case only holds an equitable claim is barred where it is a mere prerequisite to

resolving a legal dispute. In Sierra Club’s view, a stand-alone request for

equitable relief can therefore survive even where a legal remedy based on the

same facts is expired.

      We disagree. Sierra Club’s narrow reading of Russell contradicts our

observation that an equitable claim is unavailable when it can be brought on the

same facts as an expired legal claim. Telluride, 146 F.3d at 1248 n.12. It follows

from this rule that an equitable claim is barred where “the only difference

between” it and a time-barred legal claim “is the relief sought.” Grynberg v.

Total S.A., 538 F.3d 1336, 1353 (10th Cir. 2008). Otherwise, a legislative

determination that a particular time limit is sufficient to take action against

wrongful conduct “could be undermined by permitting less timely claims for such

[conduct] when only equitable remedies are sought.” Id.




                                          -16-
      Relying on the same principles, the Eighth and Eleventh Circuits have

similarly held that where a statute of limitations precludes civil penalties for

failing to obtain a PSD permit, equitable remedies based on the same facts are

barred as well. See Sierra Club v. Otter Tail Power Co., 615 F.3d 1008, 1018–19

(8th Cir. 2010); Nat’l Parks & Conservation Ass’n v. Tenn. Valley Auth., 502 F.3d

1316, 1327 (11th Cir. 2007). We agree and hold Sierra Club cannot win

injunctive or declaratory relief for OG&E’s alleged PSD permit violation because

its legal remedy based on the same facts is time-barred. 9

      Finally, Sierra Club asserts that the concurrent remedy doctrine is

inapplicable because it is acting as a “private attorney general” in place of the

government. A suit brought by the government in its sovereign capacity “is not

      9
         In its reply brief, Sierra Club asserts for the first time that its claim for
injunctive relief is not based on the same facts as its claim for civil penalties
because the former requires additional showings. These include irreparable
injury, the inadequacy of legal remedies, that “the balance of hardships between
the plaintiff and defendant” favors an equitable remedy, and “that the public
interest would not be disserved by a permanent injunction.” eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006). We generally do not consider
arguments raised for the first time in a reply brief. See Fed. R. App. P.
28(a)(8)(A); United States v. Wayne, 591 F.3d 1326, 1336 n.9 (10th Cir. 2010).
Regardless, Sierra Club’s argument fails because all of the facts supporting its
time-barred legal claim are essential to its equitable claims. In Grynberg, the
plaintiffs’ equitable claims for unjust enrichment required showing that the
defendants had been enriched, 538 F.3d at 1351, which was not needed for its
expired legal claims for breach of fiduciary duty, see id. at 1346–47.
Nonetheless, the unjust-enrichment claims were “predicated on the same alleged
misconduct—a breach of fiduciary duty, primarily arising from the use of
confidential information.” Id. at 1351–52. We see no support for the proposition
that an equitable claim is only barred if each of its elements is identical to each
element of the barred legal claim.

                                         -17-
subject to a time limitation unless Congress explicitly imposes one and any

statute of limitations sought to be applied against the United States must receive a

strict construction in favor of the Government.” Telluride, 146 F.3d at 1248

(internal quotation marks omitted). Accordingly, the concurrent remedy doctrine

does not apply to the government. Id. at 1249. But Sierra Club is not the

government, regardless of how it views its own role. A citizen suit under the

CAA is brought on the plaintiff’s “own behalf.” 42 U.S.C. § 7604(a). Private

plaintiffs cannot be said to “represent the public at large in the same way the

government does when it brings suit to enforce the statute,” Nat’l Parks, 502 F.3d

at 1327, and thus are not eligible for the government’s exemption.

                                III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s Rule 12(b)(6)

dismissal of Sierra Club’s claims.




                                        -18-
No. 14-7065, Sierra Club v. Oklahoma Gas & Electric Co.

BRISCOE, Circuit Judge, dissenting.

      This case presents an issue of first impression in this and every other

circuit: Is the statute of limitations for unpermitted construction or modification

in violation of 42 U.S.C. § 7475(a) tolled so long as the construction or

modification continues? The majority concludes that because this claim “first

accrued” on the first day of construction, tolling for a continued violation is

prohibited. Because this holding ignores the nature of tolling doctrines, as well

as the text and purpose of the Clean Air Act’s Prevention of Significant

Deterioration (PSD) program and the Oklahoma State Implementation Plan (SIP),

I respectfully dissent.

      The majority is correct that Sierra Club’s claim “first accrued” within the

meaning of 28 U.S.C. § 2462 when OG&E first began modification of a boiler at

its Muskogee power plant. But that conclusion should not end our inquiry. The

majority conflates the accrual date with a complete bar on tolling doctrines which,

if applied, extend the timeliness of a claim notwithstanding an expired statute of

limitations. Here, application of the “continuing violation” tolling doctrine 1 is


      1
         Contrary to the majority’s conclusion, Sierra Club preserved its
continuing violation argument. In its Response to OG&E’s Motion to Dismiss,
Sierra Club made arguments identical to those made on appeal regarding the text
of the Clean Air Act, Oklahoma SIP, and case law. Sierra Club argued that the
act of construction is an ongoing one, actionable as long as construction
                                                                    (continued . . . )
       ( . . . continued)
                                                                      (continued...)
appropriate for three reasons. First, the plain text of the Clean Air Act, supported

by Oklahoma’s SIP, prohibits the “construction” or “modification” of regulated

air emissions sources, not the “commencement” of those activities. Second, cases

from other circuits, rejecting the argument that operation of an unpermitted

source is not a continuing violation, draw a principled line between the end of

construction and the subsequent operation of a source. Third, characterizing a

violation of the PSD program as a one-time occurrence severely undermines the

structure of the program Congress so carefully crafted; but tolling in this instance

does not undermine the purposes of statutes of limitations.

                                          I

                         The continuing violation doctrine

      The continuing violation doctrine tolls the statute of limitations “for a

claim that otherwise would be time-barred where the violation . . . continues to

occur within the limitations period.” Nat’l Parks & Conservation Ass’n, Inc. v.

Tenn. Valley Auth., 502 F.3d 1316, 1322 (11th Cir. 2007) (citing Havens Realty




      1
       (...continued)
continues. App. at 74, 75, 77 n.2, 78. Moreover, the cases discussed in depth by
both parties and the district court are the few authorities to speak to application of
the continuing violation theory to PSD violations, so the issue was fairly raised.
While Sierra Club failed to label their theory as a “continuing violation” theory
before the district court, to call this argument forfeited ignores the substantive
arguments for lack of a technical label.

                                         -2-
Corp. v. Coleman, 455 U.S. 363, 380 (1982)). 2 Where a violation is “ongoing,

rather than a single event” and is “extant” within the limitations period,

enforcement of that violation is timely, even if the violation “first accrued”

outside of the limitations period. Interamericas Invs., Ltd. v. Bd. of Governors of

the Fed. Reserve Sys., 111 F.3d 376, 382 (5th Cir. 1997) (citing Toussie v. United

States, 397 U.S. 112 (1970); and Hanover Shoe, Inc. v. United Shoe Mach. Corp.,

392 U.S. 481, 502 n.15 (1968)) (tolling 28 U.S.C. § 2462 for a continuing

securities violation).

                         The Clean Air Act and Oklahoma SIP

      Looking to the substantive statute for guidance on the nature of the PSD

violation, the text of both the Clean Air Act and the EPA-approved Oklahoma SIP

strongly support application of the continuing violation doctrine. The Clean Air

Act requires that “[n]o major emitting facility . . . may be constructed [or

modified] . . . unless . . . a permit has been issued.” 42 U.S.C. §§ 7475(a)(1),

7479(2)(c) (emphasis added). Additionally, the citizen suit provision that

empowers Sierra Club’s cause of action authorizes suit “against any person who

proposes to construct or constructs” a facility without a permit. 42 U.S.C.

§ 7604(a)(3) (emphasis added). Similarly, the Oklahoma SIP requires that “[n]o



      2
        Sierra Club cites Havens merely as an example of the continuing violation
theory generally. The majority’s attack on Havens’s facts is therefore of little
consequence to Sierra Club’s arguments specific to PSD violations.

                                         -3-
person shall cause or allow the construction or modification of any source”

without obtaining a PSD permit from the Oklahoma Department of Environmental

Quality. Oklahoma SIP Regulations § 1.4.2(a)(1) (emphasis added). None of

these prohibitions focuses on the commencement of construction; they focus

instead on construction or modification as a whole.

      The majority is correct when it states: “It is the act of constructing itself

that is unlawful,” and “[t]o ‘construct’ is an ongoing project.” Maj. Op. at 9.

While acknowledging that “constructing or modifying a facility is best

characterized as a single, ongoing act,” id., the majority ignores the statutory and

regulatory language. Instead, the majority inserts narrowing terms which are not

there, characterizing the violation as the act of commencing construction, rather

than the whole act of construction. But 42 U.S.C. § 7475(a) indicates that

Congress considered and rejected limiting PSD violations to the commencement

of construction. In defining the jurisdiction of the PSD amendments, Congress

stated that facilities “on which construction is commenced after” the date of

enactment would be subject to the requirements. 42 U.S.C. § 7475(a). In

contrast, Congress omitted any mention of “commencing” construction in the text

of the actual prohibition. Id. (“No major emitting facility . . . may be constructed

. . . .”) (emphasis added). “[W]here Congress includes particular language in one

section of a statute but omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in the disparate inclusion

                                          -4-
or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United

States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)). 3 Rote reliance on

“first” accrual does not alter the statute’s language or negate Congress’s intent.

      The majority’s reliance on an EPA regulation that references the

“begin[ning of] actual construction” does not overcome this statutory language.

See Maj. Op. at 11 (quoting 40 C.F.R. § 51.166(a)(7)(iii)). By relying on this

regulation over the plain language of the Clean Air Act and the Oklahoma SIP,

the majority ventures into administrative law and co-federalism issues far beyond

the scope of this case. More importantly, the majority relies on this regulation

merely for the accepted premise that the PSD claim “first accrued” when OG&E

began its unpermitted modification. The majority again mistakes the date of first

accrual with a bar on tolling doctrines, which permit otherwise time-barred

claims.

      Were we to toll 28 U.S.C. § 2462 for a continuing violation based on a

textual reading of the underlying statute, we would not be the first to do so. See

Interamericas Invs., 111 F.3d at 381–83; see also Birkelbach v. S.E.C., 751 F.3d



      3
        The title of 42 U.S.C. § 7475(a) is “Major emitting facilities on which
construction is commenced.” OG&E argued this title indicates that the violation
is the commencement, rather than the whole act, of construction. Properly read,
however, this title refers to the applicability of § 7475 to those facilities on which
construction was commenced after the date of enactment, and further supports an
inference that Congress intentionally declined to define PSD violations as the
mere commencement of construction.

                                         -5-
472, 479 (7th Cir. 2014). In Interamericas Invs., the Fifth Circuit applied the

continuing violation doctrine to securities reporting violations subject to the

§ 2462 statute of limitations. 111 F.3d at 381–83. The court was persuaded that

the continuing violation doctrine applied because of the underlying statute’s

precise language defining the violation, the implementing agency’s interpretation,

and the fact that the statute provided daily penalties. Id. The Fifth Circuit

concluded, therefore, that applying a continuing violation theory was necessary to

implement congressional intent. Id. at 382–83. This case, although arising under

different subject matter, is no different analytically. The plain language of the

Clean Air Act and the implementing Oklahoma SIP precisely prohibit

construction and modification, not just the commencement of those activities.

This language reveals congressional intent that the violation be considered a

continuing one at least so long as the unpermitted construction or modification

continues.

                Distinguishing continuing “operating” violations

      The district court’s and majority’s reliance on cases from other circuits

which purportedly address the issue at hand is misplaced. No other circuit has

considered the continuing violation doctrine in the context of PSD violations

where construction was ongoing within the limitations period. The majority’s

citations to United States v. Midwest Generation, LLC, 720 F.3d 644, 646–47 (7th

Cir. 2013), and United States v. EME Homer City Generation, L.P., 727 F.3d 274,

                                         -6-
283–88 (3d Cir. 2013) are useful, at most, for the persuasive value of their dicta.

These cases considered whether a PSD violation continued so long as the

emissions source, constructed or modified without a permit, was in operation.

See also Sierra Club v. Otter Tail Power Co., 615 F.3d 1008, 1014–15 (8th Cir.

2010); Nat’l Parks & Conservation Ass’n, 502 F.3d at 1322–25. In all of these

cases, construction or modification was completed outside of the five-year statute

of limitations period. Thus, contrary to the majority’s indication, no circuit court,

until today, has rejected the argument that the PSD violation continues as long as

construction or modification continues.

      The only views expressed by these sister circuits on the issue presented are

found in dicta in two cases, each pointing us in a different direction. In Otter

Trail Power, the Eighth Circuit noted in its rejection of the continuing operations

argument that “[i]t is . . . clear that each of [the plaintiff’s] PSD claims first

accrued upon commencement of the relevant modification.” 615 F.3d at 1014

(emphasis added). The other reference is found in EME Homer, where the Third

Circuit stated: “Like Rome, facilities are not built—or modified—in a day. It is

possible that the maximum daily fine accrues each day the owner or operator

spends modifying or constructing the facility—from the beginning of construction

to the end of construction.” EME Homer, 727 F.3d at 288. The Third Circuit

also summarized the outcome of its holding as follows: “If the EPA does not

object within five years of the completion of a facility’s modification, then it loses

                                           -7-
the right to seek civil penalties under the statute of limitations.” Id. at 289

(emphasis added). “[W]hen more than five years have passed since the end of

construction . . . , the Clean Air Act protects [the regulated party’s] reasonable

investment expectations.” Id. (emphasis added).

      I agree with the Third Circuit’s view. The EME Homer court drew a well-

principled line, based on the best reading of the Clean Air Act. Where

construction or modification is ongoing without a permit, the violation continues

and the statute of limitations is reasonably tolled. When construction is complete,

so is the violation.

                          Clean Air Act policy and purpose

      Finally, there are persuasive policy reasons to conclude that the continuing

violation doctrine tolls the statute of limitations here. The PSD program is the

Clean Air Act’s principal tool to preserve areas that are in compliance with the

National Ambient Air Quality Standards (NAAQSs). Failure to toll the statute of

limitations to include the length of the construction process undermines the

structure of this critical tool by upsetting the balance of the costs of

noncompliance. If the law begins to characterize failure to get a PSD permit as a

one-day violation, regulated parties will employ that authority to argue that they

can only be subjected to one day of penalties (here, a maximum $32,500, or

$37,500 for current violations). 42 U.S.C. § 7413; 40 C.F.R. § 19.4. Wasting no

time, OG&E made that argument here as support for its statute of limitations

                                          -8-
theory. See Maj. Op. at 7. Thus, the majority’s ruling today may unknowingly

place a low cap on available penalties on projects in violation of the PSD

program, even where construction commences within five years of filing suit.

Many of the emissions sources regulated by the PSD program generate a great

deal of revenue, and enjoy lower costs in the absence of control measures which

the permitting process would require.

      Such a low cost of noncompliance undermines the balance Congress crafted

when it designed the PSD program. This program allows state implementers like

Oklahoma to allocate incremental increases in emissions among newly

constructed and modified sources, usually requiring control measures on the

facility that the regulated entity would not otherwise install. This structure

protects important interests–breathable, healthy air. See 1970 U.S.C.C.A.N.

5356, 5356. Without meaningful enforcement, emitters lose incentive to comply,

and the program loses its principal tool to keep emissions at tolerable levels.

      Unlike the integrity of the PSD program, policy concerns for the integrity

of the statute of limitations are not implicated by this case. The principal purpose

of a statute of limitations is to “promote justice by preventing surprises through

the revival of claims that have been allowed to slumber until evidence has been

lost, memories have faded, and witnesses have disappeared.” Gabelli v. S.E.C.,

133 S. Ct. 1216, 1221 (2013) (quoting R.R. Telegraphers v. Ry. Express Agency,

Inc., 321 U.S. 342, 348–49 (1944)). It is understandable that regulated parties

                                         -9-
would settle in their expectations and be entitled to repose after operating a

completed facility for several years. See EME Homer, 727 F.3d at 289. But,

while construction is ongoing, little is settled. Additionally, while construction is

ongoing, loss of evidence is not a concern. Evidence continues to be created each

day a project proceeds. The completion of modification or construction is

therefore the appropriate place to end tolling, and begin expectations of repose.

                                          II

      In sum, I conclude that tolling the statute of limitations for a violation of

42 U.S.C. § 7475(a) is appropriate so long as the unpermitted construction or

modification is ongoing. I would therefore not reach the issue of whether

injunctive relief is barred under the concurrent remedies doctrine. Because the

district court dismissed Sierra Club’s PSD claim as time-barred, I would reverse

the judgment of the district court and remand for further proceedings.




                                         -10-
