Natural Resources Defense Council et al v. Ameren Energy Resources Company LLC et al

Filing 32

ORDER & OPINION entered by Judge Joe Billy McDade on 10/28/2013. Magistrate Judge Cudmore's Report & Recommendation 28 is ADOPTED IN PART, and MODIFIED IN PART, AND Defendants' Motion to Dismiss for Lack of Jurisdiction 17 is DENIED. This matter is REFERRED BACK to Magistrate Judge Cudmore for further pretrial proceedings. (RK, ilcd)

E-FILED

Monday, 28 October, 2013 03:31:28 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
NATURAL RESOURCES DEFENSE
COUNCIL, ENVIRONMENTAL LAW &
POLICY CENTER, RESPIRATORY
HEALTH ASSOCIATION, and SIERRA
CLUB, INC.,

)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
AMEREN ENERGY RESOURCES
)
COMPANY LLC, and AMEREN
)
ENERGY RESOURCES GENERATING )
COMPANY,
)
)
Defendants.
)

Case No. 13-cv-1181

ORDER & OPINION
This matter is before the Court on Defendants’ Motion to Dismiss (Doc. 17),
and

Magistrate

Judge

Cudmore’s

Report

&

Recommendation

(“R&R”)

recommending denial of the Motion (Doc. 28). Defendants filed an Objection to the
R&R (Doc. 29), and Plaintiffs filed a Memorandum in response (Doc. 31). For the
reasons stated below, the disposition recommended in the R&R is accepted, the
R&R is modified as explained herein, and Defendants’ Motion to Dismiss is denied.
LEGAL STANDARDS
When a district court lacks subject-matter jurisdiction over a claim, it must
be dismissed. Lack of subject-matter jurisdiction may be raised by a defendant in a
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). In ruling on
such a motion, well-pleaded factual allegations must be accepted as true and all

reasonable inferences must be drawn in the plaintiff’s favor. See Long v. Shorebank
Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). However, a court may look beyond the
pleadings and consider submitted evidence to determine the existence of jurisdiction
when it is not clear from the face of the complaint. Id.
As Defendants filed an Objection to the R&R, the Court reviews de novo those
portions of the R&R to which “specific written objections” have been stated. Fed. R.
Civ. P. 72(b). “The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge
with instructions.” Fed. R. Civ. P. 72(b)(3).
BACKGROUND1
Plaintiffs, four not-for-profit organizations, filed the present case on behalf of
themselves and their members complaining of violations of the Clean Air Act
(“Act”), 42 U.S.C. §§ 7401-7671q (2012). They bring their claims pursuant to the
citizen suit provision, 42 U.S.C. § 7604, which allows “any person” to commence a
civil suit against, among others, persons alleged to be in violation of an emission
standard or limitation as that term is defined in the provision. Defendants own and
operate a coal-fired electricity generating facility called the E.D. Edwards
Generation Plant (“Plant”), located in Bartonville, Illinois, and are thus subject to
various environmental limits and regulations, including those in the Act.
In the Amended Complaint, Plaintiffs allege Defendants have violated
requirements for proper operation of the Plant relating to emissions and reporting
Unless otherwise noted, the facts are taken from Plaintiffs’ Amended Complaint
(Doc. 16) and all reasonable inferences are drawn in their favor, in accordance with
the motion to dismiss standard.

1

2

requirements. These requirements originate from two different sources: 1) the
Illinois State Implementation Plan (“SIP”), adopted pursuant to the Act and
approved by the United States Environmental Protection Agency (“USEPA”), and
2) an

operating

permit

(“Permit”)

issued

to

Defendants

by

the

Illinois

Environmental Protection Agency (“IEPA”). The first three claims allege
Defendants violated emissions limits contained in both the SIP and the Permit;
Claim Four is based on a failure to satisfy certain reporting requirements set forth
solely in the Permit. Plaintiffs allege that violations of the limitations from both
sources are actionable in a citizen suit under the Act. They seek declaratory and
injunctive relief in addition to a civil penalty and costs.
In Defendants’ Motion to Dismiss, they argue that the Court does not have
subject-matter jurisdiction over claims that they violated the conditions of the
operating Permit.2 Accordingly, they seek to dismiss those allegations in Claims
One through Three that are based on violations of the Permit conditions, as well as
Claim Four in its entirety. Defendants primarily argue that because USEPA
regulations have a definition for restrictions that are “federally enforceable,” and
that the Permit at issue does not satisfy that definition, this Court does not have
jurisdiction over Plaintiffs’ Permit-based claims.
The Permit, a copy of which is attached to Defendants’ Memorandum in
support of its Motion to Dismiss,3 was issued by the IEPA on July 1, 2004. (Doc. 18Defendants do not contest that the Court has jurisdiction over claims that they
violated the SIP.
3 Many of the facts in this paragraph go beyond the allegations of the Amended
Complaint, but because these facts are relevant to a determination of whether there
2

3

1 at 1). Though the Permit purports to expire on June 30, 2005, the terms remain in
effect pursuant to 415 Ill. Comp. Stat. 5/39.5(4)(b). (Doc. 16 at ¶ 26; Doc. 18 at 5).
The Permit allows for operation of the Plant subject to attached standard conditions
as well as the enumerated special conditions. (Doc. 18-1 at 1). The special conditions
include the emissions limits and reporting requirements Plaintiffs allege
Defendants violated. (Doc. 18-1 at 1-3). There does not appear to be any dispute that
the Permit was issued without notice to the public or solicitation of public comment.
(See Doc. 18-2 at 2).
In the R&R, Judge Cudmore recommended denying Defendants’ Motion to
Dismiss. He concluded that Plaintiffs’ allegations come within the plain language of
the citizen suit provision and the Court thus has jurisdiction. He found Defendants’
argument, that the regulatory definitions for “federally enforceable” operate to limit
federal court jurisdiction over citizen suits, to be without merit.
DISCUSSION
The central question in this matter is whether Plaintiffs can sue Defendants
under the citizen suit provision of the Act for violations of Permit conditions. The
Court has thoroughly reviewed the R&R, the briefs, and the sources cited by both
sides. As explained below, the Court finds the conclusion reached in the R&R is
correct. Thus, the recommended disposition, denial of Defendants’ Motion to
Dismiss, is accepted. However, the Court takes note of Defendants’ less substantive

is subject-matter jurisdiction over claimed violations of the Permit conditions, they
may be considered by the Court. See Long, 182 F.3d at 554. Unless otherwise noted,
the facts related to the Permit are undisputed.
4

objections to certain statements in the background section and other imprecise
generalizations, and modifies the R&R accordingly.
I.

Objections
Defendants objected generally to the recommended disposition, as well as to

some particular statements in the R&R. (Doc. 29 at 1-2). As made clearer in the
Memorandum accompanying the Objection,4 Defendants primarily object to Judge
Cudmore’s conclusion that the term “federally enforceable” is a term of art that does
not operate to limit the jurisdiction granted in § 7604. (Doc. 30 at 6-11). Defendants
also seem to argue that the Permit is not in effect under the SIP, and thus the
claims do not come under § 7604. (Doc. 30 at 6). Finally, Defendants make
numerous specific objections to particular statements in the R&R that they believe
to be incorrect statements of fact, factual statements that should be labeled as
allegations, and improper legal conclusions. (Doc. 30 at 11-13). Below, the Court
first explains the reasoning for adopting the recommended disposition of the R&R,
addressing Defendants’ substantive objections as they arise in the discussion, then
considers the more specific and superficial objections thereafter.
II.

Plain Language of Citizen Suit Provision
Under the plain language of the citizen suit provision of the Act, 28 U.S.C.

§ 7604, Plaintiffs have jurisdiction to bring claims for Defendants’ alleged violations
of the Permit. The provision states, in relevant part:
As Plaintiffs point out in their Memorandum in response to the objections,
Defendants did not technically comply with Rule 72(b) of the Federal Rules of Civil
Procedure or Local Rule 72.2(b), as they failed to specifically list all of the objections
in the Objection itself. (Doc. 31 at 3). The Court overlooks this violation because the
objections are made adequately clear in the accompanying Memorandum.
4

5

[A]ny person may commence a civil action on his own behalf-(1) against any person . . . who is alleged to have violated (if there
is evidence that the alleged violation has been repeated) or to be in
violation of (A) an emission standard or limitation under this
chapter or (B) an order issued by the Administrator or a State with
respect to such a standard or limitation,
....
The district courts shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the parties, to enforce such
an emission standard or limitation, or such an order . . . and to apply
any appropriate civil penalties . . . .
42 U.S.C. § 7604(a). The parties are primarily arguing about whether the Permit
conditions satisfy the definition of “emission standard or limitation under this
chapter,” which is a defined term in the statute.5 The definition gives four possible
categories, only one of which is arguably applicable:
For purposes of this section, the term “emission standard or limitation
under this chapter” means-....
(4) any other standard, limitation, or schedule established under
any permit issued pursuant to subchapter V of this chapter or
under any applicable State implementation plan approved by the
Administrator, any permit term or condition, and any requirement
to obtain a permit as a condition of operations.[sic]
which is in effect under this chapter (including a requirement
applicable by reason of section 7418 of this title) or under an applicable
implementation plan.
Id. § 7604(f).
This Court agrees with the conclusion reached in the R&R that applying the
plain meaning of these provisions, taken together, the Court has jurisdiction over
The Court notes that in the Amended Complaint, Plaintiffs allege that the Permit
condition is both an “emission standard or limitation” under § 7604(a)(1)(A), as well
as an “order issued by . . . a State” under § 7604(a)(1)(B). (Doc. 16 at ¶¶ 37, 40, 46,
51, 54). However, because Plaintiffs did not make this argument in opposition to the
Motion to Dismiss, and the Court finds there is jurisdiction over the claim because
the Permit term is an “emission standard or limitation,” the Court does not consider
this alternative alleged basis for jurisdiction.
5

6

the claims for violations of terms or conditions of the Permit. (See Doc. 28 at 10-13).
In one of their briefs, Defendants argue § 7604(f) “does not convey blanket federal
jurisdiction over all permits issued pursuant to the CAA or pursuant to a regulation
that has been approved as part of a SIP.” (Doc. 26 at 2). Yet that is almost precisely
what the language of the statute does—it creates subject-matter jurisdiction over
citizen suits for, inter alia, violating conditions of permits that are in effect under an
SIP. Here, the Permit conditions are each “any permit term or condition,” and the
Permit is “in effect under [the chapter] or under an applicable implementation
plan.” 28 U.S.C. § 7604. Therefore, each condition is an “emission standard or
limitation under this chapter.” Id. Accordingly, under § 7604(a), Plaintiffs may
commence a citizen suit for violations of the Permit terms and conditions, and the
Court has jurisdiction over it.
As noted above, the only objection Defendants arguably make to this plain
language conclusion is an argument that the Permit is not “in effect . . . under” the
SIP, or at least that Judge Cudmore did not adequately explain why he concluded
that it is. (Doc. 30 at 5-6; see also Doc. 26 at 2-3). However, this argument is without
merit. “In effect under” naturally refers to the source of authority and conditions for
issuing the permit. Here, the Permit is clearly in effect under the SIP, as some basic
background information makes clear. Pursuant to the Act, Illinois created an SIP,
the provisions of which are codified in multiple parts of Title 35 of the Illinois
Administrative Code.6 This SIP has been approved by the USEPA. See 40 C.F.R.
Though the given citations for the SIP provisions are to the Illinois Administrative
Code, where they are more readily accessible, the SIP is also available for viewing

6

7

§ 52.722. The SIP prohibits operation of new or existing emission sources without
obtaining a permit from the IEPA. Ill. Admin. Code tit. 35, §§ 201.143, 201.144. It
also creates numerous regulations and guidelines relating to different types of
permits, including standards for issuance of permits. E.g., id. § 201.160. Pursuant
to the SIP requirement that it do so, Defendants obtained a Permit from the IEPA
allowing it to operate the Plant. (Doc. 18-1). As Defendants themselves stated, “[t]he
[Plant] Permit was issued under the Illinois regulations, as they existed on July 1,
2004.” (Doc. 30 at 2). Though Defendants did not specify, the regulations to which
they refer are clearly the applicable regulations of the SIP, codified in the Illinois
Administrative Code. This is consistent with the Permit itself, which lists special
and standard conditions, many of which come directly from the SIP. (See Doc. 18-1
at 1-6). Thus, it is plain that the Permit is in effect under the SIP, as that phrase is
ordinarily understood.
Defendants point to no definition of the phrase “in effect under” that might
contradict its plain meaning, yet they maintain Plaintiffs’ Permit-based claims do
not come within the jurisdiction of the statute. Defendants cannot possibly be
arguing this Permit is not “in effect.” This required Permit was issued by the IEPA
and the terms have not expired. In fact, Defendants note in a brief that the Permit
“continues to be in effect.” (Doc. 18 at 5). To claim it is not “under” the SIP would be
equally unpersuasive. The standards for the Permit originate from the SIP, and the
IEPA issued the Permit under the authority of the SIP and subject to those
through the USEPA’s website for air quality and radiation for this region, at
http://www.epa.gov/reg5oair/naaqs/index.html
(follow
“Region
5
State
Implementation Plans (SIPs)” hyperlink).
8

regulations. (See Doc. 30 at 2). Defendants argue that although the SIP requires
sources to obtain an operating permit, that is not the authority under which the
state actually issues the permit. However, Defendants do not explain an alternative
authority under which the IEPA acted when issuing the operating permit, and the
Court finds none. To the extent this is a fact question, Plaintiffs have alleged the
Permit is in effect under the SIP, (Doc. 16 at ¶ 2), and Defendants have introduced
no evidence or sources to the contrary. Defendants could have introduced evidence
showing that the Permit had expired, or that the state had issued the Permit
pursuant to some other provision or regulatory scheme, for example, but they did
not. Plaintiffs’ allegations, taken as true and without any contrary facts presented,
suffice to satisfy any factual inquiry into this jurisdictional question.
One of Defendants’ arguments appears to be that, in addition to the USEPA
defining the phrase “federally enforceable,” which is addressed at length below, the
Illinois SIP also defines and creates procedures for “federally enforceable” permits,
and that the failure to meet this definition and follow these procedures means the
Permit is not “in effect under” the SIP. Part 252 of the SIP sets forth public
participation procedures, which apply to applications for certain categories of
permits, including “[p]ermits to operate sources which contain federally enforceable
conditions.” Ill. Admin. Code tit. 35, § 252.102(6). Notably, the SIP regulations state
“‘[f]ederally enforceable’ means by the United States Environmental Protection
Agency,” without mention of citizen suits. Id. § 203.123.7 Defendants seem to argue
The state’s use of the term “federally enforceable” is related to and likely a result
of the USEPA’s required definition and use of the phrase.

7

9

that because the Permit was not subject to the public participation in Part 252,
because it is not one of the enumerated categories of permits required to use this
process, the Permit is thus not “in effect under” the SIP. (See Doc. 18 at 9). But
there are multiple types of permits that can be issued under the SIP. The citizen
suit statute does not state that only certain types of state permits qualify, they
simply must be “in effect under” an SIP. Whether a permit is in effect under the SIP
is not the same thing as whether it comes within certain categories of state permits
or whether certain procedures were followed. The Illinois SIP obviously
contemplates issuing permits that do not come under the definition of “federally
enforceable,” and these permits are no less in effect under the provisions of the SIP.
The statute is clear, and this argument is not persuasive. Accordingly, the Court
finds it has jurisdiction over Plaintiffs’ claims.
III.

Applicability of the Term “Federally Enforceable”
Avoiding the plain meaning of § 7604, Defendants insist that because the

Permit does not come within the definition of the phrase “federally enforceable” that
is found in USEPA regulations, this Court does not have jurisdiction over Plaintiffs’
Permit-based claims. This argument is mistaken for the reasons explained below.
A. Federal Court Jurisdiction and Agency Authority
First, if the administrative definition Defendants cite attempted to limit the
unambiguous statutory grant of jurisdiction as Defendants claim it does, it would be
beyond the USEPA’s authority. Congress has significant authority to demarcate the
scope of federal court jurisdiction. Constitutionally, federal courts have broad

10

jurisdiction over any cases “arising under” the Constitution or laws of the United
States. U.S. Const. art. III, § 2; see Osborn v Bank of United States, 22 U.S. 738
(1824). Congress has the power to limit the jurisdiction of lower federal courts,
including preventing jurisdiction over very specific types of cases, as it has done in
the past. See, e.g., Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938). Congress is
also able to affirmatively provide for federal court jurisdiction over certain types of
cases, so long as these cases also come within the constitutional jurisdiction of
federal courts. See, e.g., Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480,
491-92 (1983). The provision at issue here comes within the latter category.
Congress explicitly created a cause of action for suits brought by citizens under the
Clean Air Act, and specified that federal courts would have jurisdiction over them.
42 U.S.C. § 7604. The plain language of the section sets out precisely the claims
that are included in the jurisdictional grant.
If Congress had limited the claims citizens could bring, or jurisdiction over
those claims, to alleged violations of permit conditions only if the permits were
issued after public participation, that would surely have been a valid restriction.
But that is not the case here. In the statute, there is simply no mention of there
being only certain types of permits that are subject to citizen suits for violations,
except that they be “in effect under” the SIP. Because Defendants cannot use the
plain language of the statute to support its Motion to Dismiss, they instead rely on
regulations from an administrative agency to argue that the Court’s jurisdiction is
more limited than the statute explicitly provides.

11

Even if an administrative rule clearly stated that citizen suit jurisdiction
under § 7604 did not include claims for violations of permits that did not meet
certain requirements, such as having gone through public notice and comment, it
would not have weight. Administrative rules and regulations interpreting
ambiguous statutes are entitled to a level of deference under Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), but that is only
where Congress’s intent was not clear. As Plaintiffs correctly argue, a regulation
cannot abrogate an unambiguous statute conferring subject-matter jurisdiction on a
federal court. See Chevron, 467 U.S. at 842-43 (“If the intent of Congress is clear,
that is the end of the matter; for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.”). The citizen suit statute
explicitly states a person can bring a claim for a violation of an emission standard
or limitation, and that is defined to include any permit term or condition in effect
under an SIP. The USEPA cannot create exceptions to this clear jurisdictional grant
by issuing a rule to the contrary.8 Here, the statute is clear and unambiguously
provides for jurisdiction in this Court over Plaintiffs’ claims, and a regulation
setting forth a contrary meaning would not be entitled to weight.
B. “Federally Enforceable” as a Term of Art
The Court need not dwell on an agency’s lack of authority to limit clear
statutory jurisdiction by rule, because that is not what the USEPA did. The
regulations Defendants cite are not attempts to contravene the plain language of
Of course, USEPA regulations could impact citizen suit jurisdiction in other ways,
such as if a regulation limited the types of permits that could be issued under an
SIP, but it could not contradict the plain language of the statute.
8

12

the statute by excluding certain claims from federal court jurisdiction. They simply
define the term “federally enforceable” for specific purposes and in specific contexts.
The Court concludes that the USEPA was not attempting to limit or define the
scope of federal court jurisdiction over citizen suits brought pursuant to § 7604
through its regulations defining “federally enforceable.” Rather, the language of the
regulations, the USEPA’s explanation of the purpose of the definition, and textual
clues all show the phrase is used as a term of art.
1. Language of the Regulations
The definition of “federally enforceable” that Defendants cite, found in
multiple locations in USEPA regulations, is as follows:
Federally enforceable means all limitations and conditions which are
enforceable by the Administrator, including those requirements
developed pursuant to 40 CFR parts 60 and 61, requirements within
any applicable State implementation plan, any permit requirements
established pursuant to 40 CFR 52.21 or under regulations approved
pursuant to 40 CFR part 51, subpart I, including operating permits
issued under an EPA-approved program that is incorporated into the
State implementation plan and expressly requires adherence to any
permit issued under such program.
40 C.F.R. § 51.165(a)(1)(xiv); 40 C.F.R. § 51.166(b)(17).9 Taking only the language of
the regulations where these definitions appear, there is nothing to indicate any

Defendants focus on the lack of public participation to show the Permit does not
satisfy the definition of federally enforceable, but the regulation does not clearly
require public participation on its face; rather, the rule describing an amendment to
this definition explains that states should use public participation before issuing
operating permits in order for them to come under this category. See generally
Requirements for the Preparation, Adoption, and Submittal of Implementation
Plans; Approval and Promulgation of Implementation Plans, 54 Fed. Reg. 27,274
(June 28, 1989). The Court assumes for purposes of this analysis, despite Plaintiffs’
reasonable argument to the contrary, (see Doc. 24 at 15 & n.9), that the Permit does
not satisfy the definition of “federally enforceable” found in the USEPA regulations.

9

13

relation to citizen suit jurisdiction. The most obvious feature of the definition is that
it refers only to USEPA enforcement, and makes no mention of or reference to
citizen suits or to 28 U.S.C. § 7604. The phrase “federally enforceable” does not
appear in § 7604, nor does the definition of “federally enforceable” address what it
means for a permit to be “in effect under” an SIP. The provisions are entirely
unrelated.
Further, the definitions are buried deep in regulations pertaining to specific
topics. In one appearance of this definition, it is one of a long list of definitions that
states must use in their SIP provisions relating to new and modified major pollution
sources, specifically in nonattainment areas. See 40 C.F.R. § 51.165(a)(1). In
another, it is again one of many definitions that states must adopt in relation to
regulations for review of new emissions sources and source modifications. 40 C.F.R.
§ 51.166(b). Each of the regulations containing a definition for “federally
enforceable” relates specifically to the calculation of emission potential or emission
offsets. See Requirements for the Preparation, Adoption, and Submittal of
Implementation Plans; Approval and Promulgation of Implementation Plans, 54
Fed. Reg. 27,274, 27,275, 27,285-86 (June 28, 1989) [hereinafter 1989 Rule]. For all
these reasons, nothing about the definition itself supports Defendants’ arguments.
Rather, Defendants rely on rules relating to the definition to argue the phrase
“federally enforceable” applies in this context and that the Permit terms thus
cannot be subject to citizen suit in this Court.

14

2. Regulatory Purpose of the Definition
Despite Defendants’ efforts, the regulatory materials Defendants cite only
serve to further indicate that “federally enforceable” is used as term of art and is
not a limitation on federal court jurisdiction. In fact, in one rule Defendants cite, the
USEPA directly states “[t]he term ‘federally enforceable,’ defined at, e.g., 40 C.F.R.
51.165(a)(1)(xiv), is a term of art under the NSR[10] program.” Approval and
Promulgation of Implementation Plans; Illinois, 57 Fed. Reg. 59,928, 59,929 (Dec.
17, 1992). Moreover, the discussion of the purpose of the definition in the rules
shows it is intended only for specific uses.
The USEPA’s 1989 Rule, which Defendants repeatedly cite, introduces and
explains an amendment to the definition of “federally enforceable” and gives insight
into the purpose of the definition. 54 Fed. Reg. 27,274. The summary explains that
the definition of “federally enforceable” is one of the areas of regulations “addressing
the construction of new and modified stationary sources of air pollution” that the
USEPA had previously proposed changing. Id. at 27,274. The amendment clarifies
that state operating permits may be treated as “federally enforceable,” but only if
they meet certain requirements. Id. Throughout, the rule speaks only in terms of
what the EPA is able to enforce, not citizens. E.g., id. at 27,275, 27,285-86.
One use of this definition is in the context of making permitting decisions for
construction of sources of emissions. Regulating authorities must determine a
source’s “potential to emit” to determine which requirements apply to the project.
NSR stands for “new source review,” relating to construction permits for new and
modified pollution sources. See, e.g., Approval and Promulgation of Implementation
Plans; Illinois, 57 Fed. Reg. at 59,929.
10

15

Id. at 27,275. Using “federally enforceable” limits, the potential to emit is effectively
calculated by assuming the source will emit the maximum amount possible, “unless
the source were subject to a limitation on its operation that EPA could enforce
directly.” Id. There are other, similar uses of the phrase “federally enforceable,”
each relating to calculation of emission potential or emission offsets. See id. at
27,275, 27,285-86. Thus, it is clear that the term “federally enforceable” is a term of
art in the context of calculating emission offsets or estimating future emissions to
evaluate new or modified sources of pollutants.
Essentially, the category of “federally enforceable” limits is used to make an
estimation11 of which emission source limitations are most likely to actually be
followed by sources. See id. at 27,279 (“EPA believes that the Federal enforceability
requirement is the most appropriate and reliable way to predict maximum future
emissions.”). The set of “federally enforceable” permits is not coextensive with the
set of all permits in effect under SIPs. The regulations allow emission sources to use
only “federally enforceable” permit restrictions for their benefit, such as in showing
a lower emission potential when obtaining construction permits, because the
USEPA has determined the source is likely to ultimately observe them. To this end,
it is an approximation only of which restrictions the USEPA feels its Administrator
is able to enforce, not of restrictions that may also form the basis of citizen suits.
It is only an approximation because the definition does not even appear to be a
limit on USEPA enforcement. Because the definition is somewhat circular, stating
limitations are “federally enforceable” if they are “enforceable by the [USEPA]
Administrator,” it is clear the USEPA’s authority to enforce comes from a separate
provision, and that the definition thus apparently is not intended as a direct limit
on actual enforcement.

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16

Reasonably, the USEPA may have found permits subject to its own enforcement to
be those most likely to create limitations industry would follow, and that it could
not rely on potential citizen suits to ensure compliance with other restrictions.
3. Textual Clues
Aside from the meaning evident from the context and purpose of the
definition, certain grammar and word choices in the regulatory materials are also
clues that the phrase is only intended to be a term of art. For example, “federally
enforceable” is used as part of phrases such as “USEPA reserves the right to deem
an operating permit not federally enforceable,” 40 C.F.R. § 52.737, or that permits
meeting certain requirements “may be treated as federally enforceable,” 1989 Rule,
54 Fed. Reg. at 27274. Further, “federally enforceable” is referred to by the USEPA
as a “status.” Id. at 27,280. These words and phrases indicate it is a category
created for a specific purpose rather than a jurisdictional or enforcement limitation.
Throughout the regulations, the phrase “federally enforceable” often appears
in quotation marks, as in, “States are free to continue issuing operating permits
that do not meet the above requirements. However, such permits would not be
‘federally enforceable’ for NSR and other SIP purposes.” Id. at 27,282. It is also rare
to see the phrase varied grammatically, other than occasionally being changed to
the noun form “federal enforceability”—the words are seldom rearranged or
modified, further indicating its unique meaning as a term of art. Additionally, the
1989 Rule refers to the USEPA expanding “its definition” of federally enforceable to
specifically include limitations in certain state operating permits. Id. After listing

17

the enumerated limitations contained in the definition, the USEPA states “[i]n
practice, EPA previously has declined to consider most other types of limitations as
being ‘federally enforceable,’ including limitations that are enforceable by the
Administrator under statutes other than the Clean Air Act.” Id. at 27,275. All of
these examples strongly indicate the definition of limitations that are “federally
enforceable,” defined to mean those that are “enforceable by the Administrator,”
provides a rough estimation of the boundaries of enforceability the USEPA has
imposed upon itself. It is not a limit on the jurisdiction set forth in § 7604.
The primary trouble lies in the fact that the phrase “federally enforceable” as
understood in plain English could be used to describe limitations that can be
enforced “federally,” which could arguably include enforcement through citizen suits
in federal court. It would not be inaccurate English to say that emission standards
or limitations are federally enforceable through citizen suits pursuant to § 7604.
From that, Defendants then make the flawed leap that because the phrase
“federally enforceable” could be used to describe limitations subject to citizen suit,
and because that phrase is defined in the regulations, that the regulatory definition
necessarily applies to the common English usage of the phrase in this context.
However, this argument fails to recognize that statutes and regulations are not
dictionaries—they define words and phrases for specific purposes only, not any time
the word or phrase could be used. The Permit conditions may not be “federally
enforceable” as defined for the specific purposes in USEPA regulations, but that
does not mean they are not federally enforceable as the phrase could be used for its

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normal English meaning. This is not unusual. Statutes and regulations regularly
define terms in ways that differ from their ordinary meaning, hence the need for a
definition, but these definitions only apply in the specified circumstances.
4. Defendants’ Specific Objection
Defendants take issue with the fact that Judge Cudmore concluded the term
“federally enforceable” applies only to construction of new facilities and “‘does not
relate to issuing operating permits for existing facilities.’” (Doc. 30 at 7 (quoting
Doc. 28 at 16-17)). On some level, as Plaintiffs acknowledge, Defendants’ objection
on this matter is correct—the term “federally enforceable” relates to the issuance of
operating permits, because operating permits must be issued in a certain manner in
order for their terms to be “federally enforceable.” Thus, it creates a category of
permits, which includes operating permits. But the primary point Judge Cudmore
was making, which is accurate, is that the term “federally enforceable” is defined for
the purpose of, and only has that meaning in the context of, calculating emissions
capacities

and

offsets

and

making

determinations

about

construction

or

modification of sources. For all the reasons stated above, Defendants’ objection to
Judge Cudmore’s conclusion that the phrase “federally enforceable” as defined in
the regulations does not limit jurisdiction over citizen suits is denied.
IV.

Non-Substantive Objections
Finally, Defendants made numerous specific objections to particular

statements in the R&R that they see as inaccurate or improper. (Doc. 30 at 11-13).

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These objections fall generally into three categories: factual allegations, errors, and
summaries of law.
A. Factual Allegations
Defendants complain that Judge Cudmore failed to identify which statements
were factual allegations instead of factual conclusions. In their Memorandum, they
provide “just one example” of such a statement, that “‘[t]he Plaintiffs . . . each have
members who reside near the Plant.’” (Doc. 30 at 12 (quoting Doc. 28 at 2)). In
making this objection, Defendants apparently overlook the motion to dismiss
standard, requiring the Court to take Plaintiffs’ well-pleaded factual allegations as
true. The facts in the Statement of Facts section of the R&R were given as
background to aid the reader. They were not findings of fact. Though any reader of
the R&R that is educated in the law would understand as much, the Court clarifies
that the facts stated in Judge Cudmore’s background Statement of Facts section,
like the facts in the background section of the present Order, are taken from
Plaintiffs’ Amended Complaint, and are taken as true for purposes of considering
the motion to dismiss. All inferences are taken in Plaintiffs’ favor. To the extent any
allegations were presented as facts rather than allegations, the Court does not bind
the parties to these facts, and Defendants are certainly free to deny them in their
Answer.
B. Errors
Defendants also object to one factual “conclusion” that is not based on
Plaintiffs’ allegations. In what appears to be a simple misstatement with no

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relevance to the analysis or the conclusion reached, the R&R referred to
Defendants’ Title V permit of July 1, 2005, which was actually granted on
September 29, 2005. (Doc. 28 at 3; Doc. 30 at 13). The R&R then accurately stated it
is stayed pending appeal; it is thus irrelevant. The R&R simply gave the wrong date
of issuance. Relatedly, though not in an objection, Plaintiffs also noticed a couple of
inaccurate phrases or typos in the R&R. (Doc. 31 at 9-11). In adopting the
disposition recommended in the R&R, the Court is not also adopting the Statement
of Facts section as its own, nor even the exact reasoning. Rather, this Order stands
independently as the final Order of the Court on the Motion to Dismiss. Any
imperfections in Judge Cudmore’s otherwise accurate and thorough R&R are
irrelevant to the disposition of the Motion, and need not be addressed.
C. Summaries of Law
Also in the background section of the R&R, Judge Cudmore provided a
summary of the legal framework for Plaintiffs’ claims. For example, he set forth the
emission restrictions on opacity that Plaintiffs claim Defendants violated.
Defendants object to two of these statements of the law. First, Judge Cudmore, in
summarizing the opacity regulations, stated “an exceedance of 30% opacity or
greater violates the SIP.” (Doc. 28 at 4). Defendants point out that this
generalization omits the defenses and exceptions to that limit. (Doc. 30 at 12).
Second, Defendants argue Judge Cudmore provided an “incomplete quotation” of a
provision in the Illinois Administrative Code relating to opacity. (Doc. 30 at 12
(citing Doc. 28 at 5-6)). The Court appreciates that precise language is important,

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particularly in cases that involve detailed and nuanced statutes and regulatory
schemes. However, the discussion of the law related to opacity limits and emissions
standards in which these two arguably erroneous statements are located is largely
irrelevant to the issues presented by the Motion to Dismiss. The statements could
be omitted entirely without impacting the reasoning or conclusion. The Court
clarifies that these summaries of the law are not part of the Court’s Order today,
and the parties are not bound to these generalized statements of the legal
framework of the case.
CONCLUSION
For

the

foregoing

reasons,

Magistrate

Judge

Cudmore’s

Report

&

Recommendation (Doc. 28) is ADOPTED IN PART, and MODIFIED IN PART, and
Defendants’ Motion to Dismiss (Doc. 17) is DENIED. This matter is REFERRED
BACK to Magistrate Judge Cudmore for further pretrial proceedings.

Entered this 28th day of October, 2013.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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