Sierra Club v. Public Service Co. of Colorado, Inc., 93-B-1749.

• Decision Date: 21 July 1995
• Docket Number: No. 93-B-1749.,93-B-1749.
• Citation: 894 F. Supp. 1455
• Court: U.S. District Court — District of Colorado
• Parties: SIERRA CLUB, Plaintiff, v. PUBLIC SERVICE COMPANY OF COLORADO, INC., Salt River Project Agricultural Improvement and Power District, and Pacificorp, Defendants.

894 F. Supp. 1455

SIERRA CLUB, Plaintiff, v. PUBLIC SERVICE COMPANY OF COLORADO, INC., Salt River Project Agricultural Improvement and Power District, and Pacificorp, Defendants.

No. 93-B-1749.

United States District Court, D. Colorado.

July 21, 1995.

Reed Zars, Laramie, WY, John Barth, Boulder, CO, for plaintiff.

Hubert A. Farbes, Jr., Brownstein Hyatt Farber & Strickland, P.C., Denver, CO, for defendants.

AMENDED MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Pursuant to § 7604 of the Clean Air Act, 42 U.S.C. § 7401 et. seq., plaintiff Sierra Club brings a citizen suit for civil penalties and injunctive relief against defendants Public Service Company of Colorado (PSC), Salt River Project Agricultural Improvement and Power District (Salt River), and Pacificorp (collectively defendants). The defendants are owners/operators of Hayden Station which is a fossil fuel-fired steam generating facility located near Hayden, Colorado. Federal question jurisdiction also exists as this action addresses violations under the Colorado state implementation plan (SIP), the federally delegated air pollution program approved by the U.S. Environmental Protection Agency (EPA) pursuant to 42 U.S.C. § 7410. Sierra Club has complied with the notice of intent to sue provisions of 42 U.S.C. § 7604(b)(1)(A).

The Sierra Club moves for partial summary judgment of liability on each of the four claims asserted against the defendants. Claims one and two of the complaint allege that defendants violated the Clean Air Act in excess of 19,000 times in the past five years by emitting pollutants from the Hayden Station in excess of the 20% opacity limitation set forth in the Colorado regulations and in defendants' permit. In support of its motion Sierra Club relies on data and reports from Hayden Station's continuous emissions opacity monitors (CEMs) to establish emission violations. Claim four alleges that defendants willfully operated the Hayden Station for over two weeks in November and December of 1992 without a functioning electrostatic precipitator. Sierra Club alleges in claim four that this operation of Hayden Station when one-half of its electrostatic precipitator was dysfunctional caused excessive discharge of pollutants and constituted a "modification" of the Hayden Station without the requisite permit from the Colorado Department of Health (CDH). Based on the acts constituting claims one, two, and four, the Sierra Club alleges in claim three that defendants' consistent violation of the 20% opacity standard constitutes a failure to operate Hayden Station in a manner consistent with good air pollution control practices which violates Colorado Regulation 5. 5 C.C.R. 1001-8 Part A, and 40 C.F.R. § 60.11(d).

Defendants move for summary judgment on the first two claims. They contend that data and reports obtained from CEMs cannot be used to establish emissions violations under the SIP. Thus, in this summary judgment context, the pivotal issue is what, if any, evidentiary value may be attached to the CEM data and reports in a citizen suit under § 7604 of the CAA.

I.

The following facts are not genuinely disputed. Hayden Station is a fossil fuel-fired steam generating facility located near Hayden, Colorado. Hayden Station is currently owned by PSC, Salt River, and Pacificorp. Electricity is generated at the facility by burning coal to create steam. The steam passes through a turbine which in turn drives a generator to produce electricity. Hayden Station has two units, Units 1 and 2, which generate electricity in this manner.

PSC became the operator and partial owner of Hayden Station on April 15, 1992, having purchased its interest in the Hayden Station through Colorado Ute Electric Association, Inc.'s (Colorado Ute) bankruptcy proceeding. Before purchasing its interest in the Hayden Station, PSC's Environmental Manager, Mr. Pete Cohlmia, requested an audit of Colorado Ute's holdings. Plaintiff's Brief, Exh. B. Based on the audit, Cohlmia sent memorandums to PSC staff identifying problems with the Hayden Station air pollution control equipment. PSC also had an air pollution control feasibility study performed by United Engineers and Constructors for Colorado Ute and Salt River. The study recommended the installation of baghouses at Hayden Station as the best method to reduce stack emissions and visible plume. Plaintiff's Brief, Exh. G.

Both units of the Hayden Station are subject to Colorado's air quality control regulations. The regulations provide that no owner or operator of either a new or existing source will permit emissions of any pollutant in excess of 20% opacity. 5 C.C.R. 1001-3, § I(A), II(A). Pursuant to the SIP, visible emissions are measured by CDH personnel using Method 9. 5 C.C.R. § 1001-3, § II.A.1., 40 C.F.R. Part 60, Appendix A, Method 9, p. 667. Method 9 is a visual observation of the plume or stack by a qualified observer. 40 C.F.R. Part 60, Appendix A, Method 9, p. 668. The observer must be certified by the CDH. Id. Certification is valid for six months. Id. at 669. When observing the plume, the observer stands at a distance sufficient to provide a clear view of the emissions with the sun oriented in the 140 degree sector to his back. Id. at 668. To the extent possible the observer should be perpendicular to the plume direction. Id. at 668. Based on these requirements, it is probable that the observer must ordinarily have access to the premises to conduct the Method 9 observation.

Pursuant to the Colorado regulations, Hayden Station is required to have a "continuous emission monitoring system for the measurement of opacity." 5 C.C.R. 1001-3, § VI.B.1. The system "shall be installed, calibrated, maintained and operated by the owner or operator of any steam generator of a total capacity of or greater than 250 million BTU...." Id. The monitoring system "shall have such equipment installed in a location which in accord with sound engineering practice will provide for accurate opacity ... emission readings." 5 C.C.R. 1001-3, § IV A. The owner or operator is required to calibrate the system at least once a day. Id. at § IV.F. Hayden Station has monitored the opacity of emissions from Units 1 and 2 by means of continuous emissions opacity monitors installed in each unit's exhaust stack since August of 1988. The CEMs analyze the opacity of emissions from each unit by passing a beam of light from one side of the stack across the exhaust path to a reflector which returns the light to the opacity sensor. The opacity sensor measures the attenuation of light from the stack's emissions. The opacity reading reflects the "degree to which emissions reduce the transmission of light and obscure the view of an object in the background." 40 C.F.R. § 60.2.

PSC submits quarterly reports to the CDH which document at six minute intervals the opacity readings from the CEMs. These reports include a computer listing of all CEM data, including a listing of each instance in which the CEM reflects that opacity emissions from either unit exceeded 20% opacity during the quarter and the operator's reasons for the excess emission. According to these reports, Hayden Station has exceeded the 20% opacity limit at least 19,727 times in the past five years. Complaint, Exhs. B-I.

Sierra Club's claim for failure to obtain a permit prior to modification is based on defendants' operation of Hayden Station for two weeks in November and December of 1992 without a fully functional electrostatic precipitator (ESP). At noon, November 25, 1992, defendants began the start-up of Unit 2 after it was out of service for 20 days for scheduled maintenance. Plaintiff's Brief, Exh. 5. Shortly thereafter, a short developed in the induced fan motor. The failure of the induced fan motor resulted in a failure of one-half of the ESP. Defendants operated Unit 2 for nineteen days without a fully functioning ESP. During this period, defendants filed at least four upset condition reports with the CDH:

November 30, 1992 — Upset conditions for November 25th through the 27th. Plaintiff's Brief, Exh. 2, Attachment 2A.

December 4, 1992 — Upset conditions for December 2nd through the 3rd. Plaintiff's Brief, Exh. 2, Attachment 2B.

December 7, 1992 — Upset conditions for December 4th through December 5th. Plaintiff's Brief, Exh. 2, Attachment 2C.

December 14, 1992 — Upset conditions for December 5th through the 13th. Plaintiff's Brief, Exh. 2, Attachment 2D.

An "upset condition" as defined at 5 C.C.R. 1001-2, § I.G, can excuse a violation of the emissions regulations if it meets the regulatory criteria of 5 C.C.R. 1001-2, § II.E. The upset condition reports were filed the day after the upset was complete. When the induced fan was repaired it was immediately replaced and the ESP was functional.

CDH has issued two notices of violation (NOV) to Hayden Station in the past five years. The first was issued February 13, 1989, for excess opacity emissions from Unit 2. Based on subsequent testing, CDH chose not to pursue any enforcement action. Hayden Station received a second NOV on September 27, 1993 for excess opacity emissions from Unit 2. Pursuant to a compliance order, PSC was assessed a civil penalty for $3,000.

Members of the Sierra Club reside in the Yampa Valley where the Hayden Station is situated. Standing is undisputed.

II.

Summary judgment shall enter where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). If a movant establishes entitlement to judgment as a matter of law given uncontroverted, operative facts contained in the documentary evidence, summary judgment will lie. Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992). The operative inquiry is whether, based on all the documents submitted, a reasonable trier of fact could find by a preponderance of evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,...