National Parks Conservation v. Tenn. Valley Auth., Civ.A. 01-403-VEH.

• Decision Date: 17 January 2006
• Docket Number: No. Civ.A. 01-403-VEH.,Civ.A. 01-403-VEH.
• Citation: 413 F.Supp.2d 1282
• Parties: NATIONAL PARKS CONSERVATION ASSOCIATION, INC. and Sierra Club, Plaintiffs v. TENNESSEE VALLEY AUTHORITY Defendant.
• Court: U.S. District Court — Northern District of Alabama

413 F.Supp.2d 1282

NATIONAL PARKS CONSERVATION ASSOCIATION, INC. and Sierra Club, Plaintiffs v. TENNESSEE VALLEY AUTHORITY Defendant.

No. Civ.A. 01-403-VEH.

United States District Court, N.D. Alabama, Northwestern Division.

January 17, 2006.

Marcelin E. Keever, Michael A. Costa, Our Children's Earth Foundation, San Francisco, CA, Byron Bart Slawson, Slawson Esq. PC, Birmingham, AL, Dean Hill Rivkin, Dean Hill Rivkin, Attorney, Knoxville, TN, George E. Hays, San Francisco, CA, Reed Zars, Reed Zars, Attorney at Law, Laramie, WY, William J. Moore, III, The Law Office of William J. Moore III, Jacksonville, FL, for Plaintiff.

Maria Victoria Gillen, Frank H. Lancaster, Harriet Cooper, Maureen H. Dunn, Tennessee Valley Authority Office of General

Counsel, Knoxville, TN, for Defendant.

MEMORANDUM OPINION

HOPKINS, District Judge.

Plaintiffs National Parks Conservation Association, Inc. ("NPCA") and Sierra Club, Inc. ("Sierra Club")¹ have filed an action under the citizen suit provision of the Clean Air Act ("CAA" "the Act"), 42 U.S.C. § 7604(a) (2000) which, in three (3) separate Causes of Action, asserts Tennessee Valley Authority ("TVA") violated the CAA by its 1982 work at the Colbert Unit 5 plant ("the work"). NPCA says the work constituted a "modification" under the CAA, triggering the New Source Performance Standards ("NSPS"), Non-Attainment New Source Review ("NNSR") and New Source Review ("NSR"),² and Prevention of Significant Deterioration ("PSD") standards of the CAA. Second Amended Complaint ("SAC"). (Doc. 80.)

In the latter part of 2005, the court, acting on TVA motions that had been pending for some time, entered orders on motions to dismiss filed by TVA where TVA sought judgment on all three (3) NPCA Causes of Action. See Doc. 213 and Doc. 215 (First and Second Causes of Action); Doc. 217 (Third Cause of Action).

On January 3, 2006, (doc. 220), the court ruled on a Motion (doc. 218) filed by NPCA requesting a "brief telephonic status conference," and the Response thereto (doc. 219) filed by the Tennessee Valley Authority ("TVA"). The court granted the motion in part by directing NPCA "to provide to the court and to TVA a proposed agenda of matters to be addressed," and directing TVA to file a response to NPCA's proposed agenda. (Doc. 220) NPCA filed its Proposed Agenda. (Doc. 221). TVA filed its Response (doc. 222), to which NPCA filed a Reply (doc. 223).

The court anticipated NPCA might, as part of the status conference, seek reconsideration of the orders entered on TVA's motions to dismiss described above. And NPCA did so in part. NPCA's discussion of the agenda, however, addressed the Court's announced intention to consolidate this action with the court's other TVA Colbert plant CAA citizen suit action Sierra Club v. TVA, 430 F.3d 1337 (11th Cir. 2005), Petition for Rehearing Or Rehearing En Banc filed January 5, 2005 ("Sierra Club v. TVA"). In response to that announcement, NPCA said:

, ... in light of the Court's recent rulings that appear to have effectively dismissed all counts in the NSR case. If this is correct and no claims for injunctive relief in the NSR case alone have survived, then there is no case with which to consolidate the opacity case, and the plaintiffs would ask the court to enter judgment for the defendant forthwith.

Doc. 221 at p. 2.

In its response, TVA concurred with NPCA's assessment:

TVA agrees with the Plaintiffs that the Court's orders have, as Plaintiffs put it, "effectively dismissed all counts in the NSR case."

Doc. 222 at p. 1.

I have reviewed and considered what NPCA and TVA have said is the effect of the Orders in question (does. 213, 215, and 217), and, having done so, concluded that their assessment is correct. After setting out the background, followed by discussion of what issues arguably may have remained after those Orders, I conclude that there are no issues left to resolve and that the entry of a final Order dismissing the action is appropriate.

I. BACKGROUND

The background of this action, the CAA, the regulatory history, and the court interpretations of the applicable provisions have been set out in previous opinions associated with does. 213, 215, and 217, and will not be repeated. Suffice it to say that the requirements of the Alabama PSD and NNSR provisions are triggered when a new source is built or when an existing major stationary source constructs a "major modification." See AAPCC Regulations 16.4.8 (Ex. 5 at 10) & 16.3.2(e) (Ex. 6 at 16-8). If triggered, these new source requirements require installation of pollution control equipment that represents best available control technology (BACT) (under the PSD program) or lowest achievable emission rate (LAER) (under the NNSR program). NPCA says these requirements were triggered by the 1982-1983 work at Colbert 5.

II. ARE THERE ISSUES REMAINING AT THIS TIME?

In asking for the agenda for the proposed status conference, I did not consider the cumulative effect of the recent Orders. (Does. 213, 215, and 217). I also did not anticipate: 1) that there would still be any doubt concerning what claims remained in the action after the orders entered on the TVA motions to dismiss, and 2) that the parties would, for different reasons, seek entry of judgment in TVA's favor on all claims.

Having considered the effect of the Orders, I cannot quarrel with NPCA's belief that, under the First and Second Causes of action, it has no claims for relief unless "... the modifications occurred within five years of the filing of the complaint." Doc. 223 at p. 2. The court tried, unsuccessfully, in the Order entered December 8, 2005, which amended its ruling on the First and Second Causes of Action, to eliminate any possible confusion. See Doc. 215, amending Doc. 213. At page 4 of doe. 215, the court said that NPCA would still have claims when those claims fell within the five (5) year statute of limitations and asserted that TVA operations of Colbert 5 violate the Clean Air Act. (Emphasis supplied).

The court did not intend to say that the operations of Colbert 5 that might violate the Act had to be caused by a "modification" of Colbert 5 occurring within five (5) years of the filing of the Complaint. There is no dispute that the construction work at Colbert 5 which NPCA says was a modification triggering the NSPS, NNSR/ NSR, and PSD provisions of the CAA took place in 1982 and 1983. I could have been more clear and said NPCA couldn't prove a claim under the First and Second Causes of Action because there had been no work at Colbert 5 in the five-year period immediately preceding the filing of the Complaint in 2001. My confusion arose from a reading of the SAC as, inter alia, asserting that TVA's operations of Colbert 5 violate the CAA, combined with my reading of Sierra Club v. TVA, supra, which supports that assertion. The distinction between the SAC and Sierra Club v. TVA, of course, is that the latter does not tie the illegal operations to the 1982-1983 work at Colbert 5. NPCA is careful to say that it reads the recent Orders as tying the right to proceed under the First and Second Causes of Action, which assert operation of Colbert 5 without appropriate permitting and the installation of BACT and LAER emission limits, to a "modification" under the Act that falls within the (5 year) statute of limitations. (Doc. 222 at p. 2).

In any event, I anticipated that consolidating this action with Sierra Club v. TVA, and addressing the issue of remedies, would moot the issue of whether there were surviving claims since Sierra Club v. TVA covers substantially the same time period of operations at the same TVA plant.

III. DISCUSSION

Perhaps it is a distinction without a difference but, in light of Sierra Club v. TVA, supra, the court was willing to at least consider the possibility that NPCA could prove its First and Second Causes of Action as to TVA's operations of Colbert 5 at this time and going back five (5) years preceding the filing of the Complaint. The court said, and reaffirms, that the NPCA Notice letter was a shotgun notice that did not comply with the notice provisions of the CAA citizen suit provisions, thereby dooming the Third Cause of Action. Having said that, Sierra Club v. TVA, supra, was handed down after the court's Order dismissing the First and Second Causes of Action, and the court believed, apparently incorrectly, that Sierra Club v. TVA may have opened the door for NPCA to try to prove such violations occurring within the five (5) years preceding the filing of the Complaint. The thinking was that once the 11^th Circuit had stated unequivocally that the 2% de minimis rule violated the CAA because it was not approved by the EPA and made a part of the Alabama SIP, NPCA may have sought to prove, if it could, that TVA's operations of Colbert 5 today, and going back to 1996, also violate the CAA because the 1982-1983 work, which NPCA says was a "modification" under the Act, was not permitted as the Act requires. An amendment to NPCA's Complaint likely would have been necessary, but since Sierra Club v. TVA represents, at the least, a significant intervening change in the law, leave to amend would have been freely granted. F.R. Civ. P. 15.

Put another way, NPCA could send TVA, ADEM, and EPA a pre-suit notice letter tomorrow saying Colbert 5 violates the CAA each time its opacity exceeds 20% as measured by its continuous monitor operating system ("COMS")³ reading, that it has done so on every occasion listed (using the COMS data supplied to ADEM by TVA), and then file suit sixty (60) days later.

Given my reading of Sierra Club v. TVA, any or all of these steps appeared to be a meaningless exercise of formality. Sierra Club v. TVA appears to clearly say the Colbert plant is in violation of the CAA, the 2% de minimis rule does not excuse the violations, the COMS readings are credible evidence of the violations, and TVA is immune to civil penalties. If this is an accurate recitation of its...