Sierra Club v. Georgia Power Co., No. 05-11314.

• Decision Date: 30 March 2006
• Docket Number: No. 05-11314.
• Citation: 443 F.3d 1346
• Parties: SIERRA CLUB, Physicians for Social Responsibility, Georgia Forestwatch, Eileen Lange, Plaintiffs-Appellees, v. GEORGIA POWER COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

443 F.3d 1346

SIERRA CLUB, Physicians for Social Responsibility, Georgia Forestwatch, Eileen Lange, Plaintiffs-Appellees, v.GEORGIA POWER COMPANY, Defendant-Appellant.

No. 05-11314.

United States Court of Appeals, Eleventh Circuit.

March 30, 2006.

Margaret Claiborne Campbell, Daniel S. Reinhardt, Gary R. Sheehan, Jr., Amanda C. Baxter, Troutman Sanders, Atlanta, GA, for Defendant-Appellant.

Robert Ukeiley, Law Office of Robert Ukeiley, Berea, KY, for Plaintiffs-Appellees.

Teresa Wynn Roseborough, Sutherland, Asbill & Brennan, Atlanta, GA, for Georgia Pulp and Paper Ass'n, Inc., Amicus Curiae.

G. Graham Holden, Jones Day, Charles A. Perry, Hunton & Williams, Atlanta, GA, for Oglethorpe Power Corp., Amicus Curiae.

Cletus W. Bergen, II, Savannah, GA, for Environmental Integrity Project, Amicus Curiae.

Appeal from the United States District Court for the Northern District of Georgia.

Before BLACK, HULL and FARRIS^*, Circuit Judges.

HULL, Circuit Judge:

In this citizen enforcement action, the Sierra Club and other public interest plaintiffs(collectively, "Sierra Club") allege violations of the Clean Air Act, 42 U.S.C. §§ 7401-7671q, at Plant Wansley, a large power plant owned and operated by Georgia Power Company("Georgia Power").Specifically, Sierra Club asserts that on thousands of occasions between 1998 and 2002, Plant Wansley's emissions exceeded limits prescribed by the Plant's operating permit issued under Title V of the Clean Air Act(the "Title V permit").

The district court granted partial summary judgment in favor of Sierra Club on Counts One and Two of the complaint.After review and oral argument, we reverse the district court's finding of liability as a matter of law on those counts and remand for further proceedings regarding liability.

I.The Clean Air Act

Untangling this dispute requires an understanding of both the state and the federal responsibilities under the Clean Air Act.As such, we begin with an overview of the Clean Air Act's scheme of joint state and federal implementation.

A.State Implementation Plans("SIPs")

The Clean Air Act strives "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population."42 U.S.C. § 7401(b)(1).The Clean Air Act sets out a two-stage process for achieving this goal.In the first stage, the federal Environmental Protection Agency("EPA") sets "national ambient air quality standards" for various pollutants.42 U.S.C. § 7409.In the second stage, each state creates and implements a plan, known as a "State Implementation Plan" or "SIP," to ensure its air meets the EPA standards.See42 U.S.C. § 7410.

Before implementing its plan, each state must submit a proposed SIP to the EPA for approval.42 U.S.C. § 7410(a)(1).To gain EPA approval, the SIP must "include enforceable emission limitations and other control measures, means, or techniques. . . as may be necessary or appropriate to meet the applicable [Clean Air Act] requirements."42 U.S.C. § 7410(a)(2).Each state's SIP must "assure that national ambient air quality standards are achieved."42 U.S.C. § 7410(a)(2)(c).

Each state must revise its SIP periodically to account for new EPA standards and new emissions reduction technologies.42 U.S.C. § 7410(a)(2)(H).Like an entirely new SIP, any SIP revisions must be open to public hearing and comment and must be approved by the EPA.42 U.S.C. § 7410(a)(1).The EPA may also make what is known as a "SIP call," notifying a state of inadequacies in its current SIP and requesting that the state submit a revised plan.See42 U.S.C. § 7410(k)(5).

Georgia's SIP provisions are codified in the Georgia Rules for Air Quality Control, seeGa. Comp. R. & Regs. Ch. 391-3-1, which for simplicity we refer to as the Georgia Rules.

B.The Title V Permit

In 1990, Congress amended the Clean Air Act to add Title V, see42 U.S.C. §§ 7661-7661f, to assist in compliance and enforcement of air pollution controls.Clean Air Act Amendments of 1990, Pub.L. No. 101-549, §§ 501-507, 104 Stat. 2399, 2635-48(1990)."Under Title V, major stationary sources of air pollution are required to obtain an operating permit, which establishes the [Clean Air Act] requirements for, among other things, emission limitations relevant to the particular polluting source."Legal Envtl. Assistance Found., Inc. v. EPA,400 F.3d 1278, 1279(11th Cir.2005).

The intent of Title V is to consolidate into a single document (the operating permit) all of the clean air requirements applicable to a particular source of air pollution.The Title V permit program generally does not impose new substantive air quality control requirements.Rather, a Title V permit "enable[s] the source, States, EPA, and the public to understand better the requirements to which the source is subject, and whether the source is meeting those requirements."Operating Permit Program, 57 Fed.Reg. 32,250, 32,251(July 21, 1992)(codified at 40 C.F.R. § 70).

Title V authorizes each state to design its own stationary source permitting program and to submit that program to the EPA for approval.42 U.S.C. § 7661a.Georgia's Title V permitting program began on an interim basis in 1995.In 2000, the EPA granted final approval of Georgia's Title V program effective August 7, 2000.See40 C.F.R. § 70 app. A.¹As with Georgia's other duties under the Clean Air Act, the GeorgiaTitle V program is administered by the Environmental Protection Division("EPD") of Georgia's Department of Natural Resources.

When the state EPD issues a Title V permit, the terms of the permit must comply with Georgia's EPA-approved SIP.See40 C.F.R. § 70(setting minimum requirements for state operating permit programs and standards for state-issued permits).²While the state EPD is primarily responsible for issuing Title V permits in Georgia, each permit approved by the EPD also must be submitted to the federal EPA for review.See42 U.S.C. § 7661d(b);see generallyN.Y. Pub. Interest Research Group, Inc. v. Johnson, 427 F.3d 172, 176(2d Cir.2005).The EPA may object to the permit and send it back to the state EPD to correct the problem perceived by the EPA.Id. at 176.If the EPA declines to object to the submitted permit within 45 days, "any person" may petition the EPA requesting that the agency object.Id.³

C.Citizen Enforcement

The Clean Air Act gives "any person" the authority to bring a civil action on his or her own behalf "against any person . . . who is alleged to have violated . . . an emission standard or limitation under this chapter."42 U.S.C. § 7604(a)(1)."An emission standard or limitation" is defined to include "any other standard, limitation, or schedule established under any permit issued pursuant to [Title V] or under any applicable State implementation plan approved by the [EPA] Administrator."42 U.S.C. § 7604(f)(4).Accordingly, citizens may sue to enforce the terms of a stationary source's Title V permit.

"`[T]he citizen suit is meant to supplement rather than to supplant governmental action.'"Am. Canoe Ass'n, Inc. v. City of Attalla,363 F.3d 1085, 1089 n. 5(11th Cir.2004)(quotingGwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,484 U.S. 49, 60, 108 S.Ct 376, 383, 98 L.Ed.2d 306(1987)).As such, prior to initiating litigation, a citizen enforcer must notify the EPA, the alleged violator, and the relevant state agency of the citizen's intent to sue.42 U.S.C. § 7604(b).The citizen enforcer may not sue until sixty days after sending the notice letters, and his lawsuit is barred if "the [EPA] Administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard, limitation, or order."42 U.S.C. § 7604(b)(1)(B).

II.Plant Wansley

Plant Wansley, located in Heard County, Georgia, is a large power plant facility that burns fossil fuels in seven principal emission units.Two of these units are older, coal-fired, steam electric generating units that emit exhaust through a 1000-foot tall stack.These older units are referred to as SG01 and SG02.

Plant Wansley's Title V permit limits the opacity of emissions from SG01 and SG02 to 40%.[Permit Condition 3.4.2].⁴This permit condition is a restatement of the identical requirement from the Georgia SIP, a requirement that appears in the Georgia Rules.SeeGa. Comp. R. & Regs. 391-3-1-.02(2)(b)(1).The 40% opacity limit has been part of Georgia's SIP for the entire period relevant to this lawsuit.

Plant Wansley's permit requires that the Plant continuously monitor the opacity of its emissions and report all excess emissions to the EPD.[Permit Conditions 5.2.1.a, 5.2.7.a, 5.3.1].⁵Plant Wansley has installed what is known as a continuous opacity monitoring system, or "COMS," on the two coal-fired units.The COMS, which is located at a height of 430 feet within the stack, shines a light through the emissions to measure opacity.The COMS summarizes the opacity data over six-minute intervals, so there is a different opacity measurement for every six-minute period.Once Plant Wansley submits this data to the EPD and EPA, these emissions reports become public documents.

Plant Wansley's COMS data shows that during roughly 4,000 six-minute intervals from 1998 to 2002, the opacity of emissions emanating from SG01 or SG02 exceeded 40%.Based on this data, Counts One and Two of Sierra Club's lawsuit allege that the emissions from SG01 and SG02 represent violations of the Georgia SIP and the terms of Plant Wansley's Title V permit.

In the district court, Georgia Power did not dispute the COMS data and thus the fact that these exceedances occurred is not at issue.Instead, Georgia Power contends that these exceedances were not Clean Air Act violations because all exceedances occurred during periods of startup, shutdown, or malfunction ("SSM").The permit and the Georgia Rules each include an...