Sierra Club v. Tennessee Valley Authority

Decision Date06 January 2009
Docket NumberNo. 3:02-cv-2279-VEH.,3:02-cv-2279-VEH.
PartiesSIERRA CLUB and Alabama Environmental Council, Inc., Plaintiffs, v. TENNESSEE VALLEY AUTHORITY, Defendant.
CourtU.S. District Court — Northern District of Alabama
592 F.Supp.2d 1357
SIERRA CLUB and Alabama Environmental Council, Inc., Plaintiffs,
v.
TENNESSEE VALLEY AUTHORITY, Defendant.
No. 3:02-cv-2279-VEH.
United States District Court, N.D. Alabama, Northwestern Division.
January 6, 2009.

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COPYRIGHT MATERIAL OMITTED

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Abigail M. Dillen, EarthJustice, Bozeman, MT, David A. Ludder, Law Office of David A. Ludder PLLC, Tallahassee, FL, Michael A. Costa, Our Children's Earth Foundation, George E. Hays, Attorney at Law, San Francisco, CA, Byron Bart Slawson, Slawson Esq. PC, Birmingham, AL, 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, Lauren E. Freeman, Hunton & Williams LLP, Washington, DC, Nash E. Long, III, Hunton & Williams LLP, Charlotte, NC, for Defendant.

MEMORANDUM OPINION

Virginia E. Hopkins, District Judge.


I. PROCEDURAL POSTURE

This action commenced on September 16, 2002. (Complaint, Doc. 1). The Plaintiffs, Sierra Club and Alabama Environmental Council, Inc. ("Plaintiffs"), complained that the Tennessee Valley Authority ("TVA") had violated the Clean Air Act, and the Alabama State Implementation Plan (the "SIP"). Specifically, Plaintiffs alleged that TVA had violated, at its Colbert Plant ("Colbert") the 20% opacity limit contained in the SIP and thereby violated 42 U.S.C. § 7604(a)(1) and (f), the SIP, Alabama Admin. Code r. 335-3-4-.01(1)(b) and the Colbert Title V Permit. (Complaint, Doc. 1, passim).

In 2002, the Sierra Club and the Alabama Environmental Council ("Plaintiffs") sued the Tennessee Valley Authority ("TVA") under the Clean Air Act, 42 U.S.C. §§ 7401-7671q, ("the Act"; "CAA";) claiming that TVA's plant in Colbert County, Alabama ("the Colbert plant"; "Colbert") violated Alabama's State Implementation Plan ("SIP") adopted by the Alabama Department of Environmental Management ("ADEM") and approved by the U.S. Environmental Protection Agency ("EPA"). See 40 C.F.R. § 52.69, et seq. and previously at 40 C.F.R. § 52.50 et seq. Plaintiffs claimed that TVA repeatedly violated the SIP's 20% opacity limit, Ala. Admin. Code r. 335-3-4-.01(1)(a), and the Colbert Plant's Title V Air Permit, 701-0010-Z009 through 701-0010-Z013. The Complaint alleged a violation of the CAA each time the Colbert plant exceeded the 20% "opacity" limit. (Such events are hereinafter referred to as "exceedances.") Initially, there were said to be more than 8,900 exceedances during the five-year period from 1997 to 2002 when the Complaint was filed. Plaintiffs sought an order enjoining TVA's exceedances, and the imposition of civil penalties. (Doc. 1, passim).

In September, 2004, the court granted summary judgment to TVA on all claims

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for two reasons. (Doc. 83). The first reason, which covered all claims made by Plaintiffs, was that all the claimed exceedances were within the forgiveness zone, or safe harbor, of ADEM's so-called "2% de minimis rule." The court held that it should defer to Alabama's regulation, Ala. Admin. Code r. 335-3-4-.01(4), and the manner in which ADEM, the regulating agency, interpreted the SIP. The second reason was that data generated by the Colbert plant's continuous opacity monitoring system ("COMS") could not be used to establish opacity violations that occurred before May 20, 1999, the date ADEM adopted its "credible evidence rule," Ala. Admin. Code r. 335-3-1-.13(2). Previously, on February 20, 2003, Judge Johnson had held that sovereign immunity principles would bar the assessment of civil penalties against TVA. (Doc. 13).

Plaintiffs timely appealed. In Sierra Club v. TVA, 430 F.3d 1337 (11th Cir.2005) ("Sierra Club"), the Eleventh Circuit:

1) affirmed this court's decision on the application of the "credible evidence" rule to this action;

2) reversed this court's ruling that ADEM's use of the 2% de minimis rule was a permissible interpretation of the Clean Air Act, holding instead that ADEM's use of the 2% de minimis rule throughout the period in question was an illegal, unilateral modification of the Alabama SIP, 42 U.S.C. § 7410(I); 40 C.F.R. § 51.105, and that Alabama's interpretation of its state implementation plan (SIP) cannot change the Act's mandate of continuous compliance. Clean Air Act, §§ 110, 302(k), 42 U.S.C. §§ 7410, 7602(k);

3) affirmed Judge Johnson's ruling that TVA was immune from civil penalties under the Act; and

4) remanded the action for proceedings consistent with the Court's opinion.

On remand, this Court initially stayed the action to await the Supreme Court's decision in Environmental Defense v. Duke Energy Corp., 549 U.S. 561, 127 S.Ct. 1423, 167 L.Ed.2d 295 (2007) ("Duke Energy"); the District of Columbia Circuit's decision in New York v. E.P.A., 443 F.3d 880 (D.C.Cir.2006), rehearing en banc denied June 30, 2006 (Case No. 03-1380) ("New York II"), and the appeals of this court's decisions in National Parks Conservation, Inc. and Sierra Club v. Tennessee Valley Authority (a case involving construction work at Colbert in the early 1980's), 413 F.Supp.2d 1282 (N.D.Ala. 2006), and United States v. Alabama Power Co., 372 F.Supp.2d 1283 (N.D.Ala.2005).

On July 16, 2007, the Court lifted the stay. (Doc. 150). On August 27, 2007, the Court granted Plaintiffs Third Motion for Summary Judgment on Liability, filed April 5, 2007 (Doc. 132). In its August 27, 2007, Order (Doc. 153), the Court ruled that "[j]udgment will be entered in favor of [Plaintiffs] and against TVA for the following violations of the Clean Air Act, the Alabama SIP and TVA's Title V permits taking place between January 3, 2000, and September 30, 2002:

—Colbert 1-4: 2,351 separate six minute violations; 784 greater than 20% and less than 25 %; 1,567 greater than 25 % opacity;

—Colbert 5: 1,038 separate six minute violations; 541 greater than 20% and less than 25 percent; 497 greater than 25%."

(Id.)

On May 23, 2008, the Court entered an order governing remedies discovery and setting this matter for trial. (Doc. 173). The remedies trial commenced on December

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15, 2008.1 The issues at trial were "whether injunctive relief is required and what, if any, form such relief should take." (Doc. 173 at 3). The Court has admitted evidence from the parties in the form of testimony2 and exhibits admitted into evidence.

For the reasons stated, the Court finds and concludes that injunctive relief is not required and that this case is due to be dismissed. Based on the evidence and arguments presented, and pursuant to Rule 52(a)(1) of the Federal Rules of Civil Procedure, the Court makes the following findings of fact and conclusions of law.

II. FINDINGS OF FACT

A. The Parties, Jurisdiction and Standing

1. Plaintiffs Alabama Environmental Council and Sierra Club are non-profit membership organizations.

2. The Tennessee Valley Authority is a corporate agency or instrumentality of the United States.

3. This Court has previously found that plaintiffs have standing to bring this action. Memorandum Opinion on Plaintiffs' Third Motion for Summary Judgment on Liability, Doc. 152, at 10.

4. The Court has subject matter jurisdiction over this case pursuant to 42 U.S.C. § 7604(a) and 28 U.S.C. § 1331.

B. The Colbert Plant

5. TVA is the owner and operator of the Colbert Fossil Plant ("Colbert"), which is located in Tuscumbia, Alabama.

6. Colbert is a fossil-fuel-fired electric generating facility consisting of five separate units that are operated to generate electricity.

7. The five units at Colbert generate electricity by burning coal to create steam, and then passing that steam through a turbine to drive a generator that ultimately produces electricity.

8. Colbert generates about 7.8 billion kilowatt hours of electricity annually, enough to supply approximately 500,000 homes.

9. Airborne coal combustion by-products are exhausted by Colbert Units 1-4 through a common stack and by Unit 5 through a second stack.

C. Opacity, Particulate Matter, and Continuous Opacity Monitoring Systems

10. When Colbert produces electricity by burning pulverized coal in the furnace of a unit, the coal burning process releases by-products in the form of flue gas that makes its way through the pollution control devices and to the atmosphere through stacks. Among these combustion by-products in the flue gas are solid particles (primarily flyash), the principle component of the normal visible emissions from the coals presently being burned at Colbert.

11. The term "opacity" refers to the extent to which a plume of smoke reduces the transmission of light and obscures vision. For example, a plume with 20% opacity blocks 20% of light passing through it; no light passes through a plume with 100% opacity.

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12. Opacity is not a pollutant, but instead is a measure of the light-blocking property of a plant's emissions.

13. Continuous particulate monitoring systems are commercially available.

14. Currently, using the equipment located at Colbert, there is no way to determine continuous particulate emissions there.

15. A continuous opacity monitoring system ("COMS") is a device that monitors continuously the opacity of a plume of smoke.

16. A COMS operates by passing a beam of light from the inside of 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.

17. Opacity serves as a surrogate for determining continuous compliance with particulate matter standards.

18. Particulate matter is the generic term for a broad class of chemically and physically diverse substances that exist as discrete particles (liquid droplets or solids) over a wide range of sizes.

19. Particulate matter can be broadly classified as either primary particulate matter (i.e., particles...

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