Sierra Club v. Tennessee Valley Authority, 04-15324.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtCarnes
Citation430 F.3d 1337
PartiesSIERRA CLUB, Alabama Environmental Council, Inc., Plaintiffs-Appellants, v. TENNESSEE VALLEY AUTHORITY, Defendant-Appellee.
Docket NumberNo. 04-15324.,04-15324.
Decision Date22 November 2005

Reed Zars, Laramie, WY, William J. Moore, III, Jacksonville, FL, George E. Hays, San Francisco, CA, for Plaintiff-Appellants.

Todd L. Fulks, Harriet A. Cooper, Frank H. Lancaster, Geogory R. Signer, TVA, Knoxville, TN, for Defendant-Appellee.

R. Justin Smith, U.S. Dept. of Justice, John L. Wittenborn, Joseph J. Green, Collier Shannon Scott, PLLC, Washington, DC, William Duncan Little, Montgomery, AL, Michael D. Freeman, Thomas R. Head, III, Steven G. McKinney, P. Stephen Gidiere, III, Balch & Bingham, LLP, Birmingham, AL, for Amici Curiae.

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

Before BIRCH, CARNES and FAY, Circuit Judges.

CARNES, Circuit Judge:

In this case the Sierra Club and the Alabama Environmental Council, two environmental groups, sued the Tennessee Valley Authority under the Clean Air Act, 42 U.S.C. §§ 7401 et seq., claiming that TVA's plant in Colbert County, Alabama violated the 20% opacity limitation, Ala. Admin. Code r. 335-3-4-.01(1)(a), which is part of Alabama's state implementation plan (SIP) approved by the Environmental Protection Agency. The complaint alleged that there were more than 8,900 violations during the five-year period from 1997 to 2002, and it sought declaratory and injunctive relief, as well as the imposition of civil penalties.

The district court granted summary judgment to TVA for two reasons. One of those reasons applies to all of the alleged violations; the other one applies only to the alleged violations occurring before May 20, 1999. The reason with broader application is that all of the alleged violations at the Colbert Plant are within the forgiveness zone of the Alabama Department of Environmental Management (ADEM)'s so-called "2% de minimis rule." That rule was initially just a practice, but has since been formally adopted as a regulation, Ala. Admin. Code r. 335-3-4-.01(4); it has not, however, ever been part of Alabama's SIP.

The second reason the court gave for granting summary judgment to TVA was based on the court's belief that data generated by the Colbert plant's continuous opacity monitoring system ("COMS"), which is all the evidence there is, cannot 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). The district court also concluded that even if opacity violations at the plant were established, which would entitle the plaintiff groups to injunctive and declaratory relief, sovereign immunity principles would bar the assessment of civil penalties.

This is the appeal of the two plaintiff groups, which we will be referring to collectively as "the Sierra Club," except where the context requires separate reference. The Sierra Club challenges the district court's two bases for the finding that it had failed to prove any violations, and the additional ruling that even if it had succeeded, civil penalties should not be assessed against TVA.

We disagree with the district court's basis for denying any relief, because we agree with the Sierra Club that ADEM's use of the 2% de minimis rule throughout the period in question was an illegal, unilateral modification of the Alabama SIP. It was not, as urged by TVA and the State of Alabama (appearing here as an amicus curiae), simply an interpretation of Alabama's credible evidence rule which is part of its SIP. However, we agree with the district court that the Sierra Club has not established any violations of the opacity requirement before May 20, 1999, because all it has is COMS data, and that data cannot be used to show violations before Alabama adopted its credible evidence rule on that date. We also agree with the district court that sovereign immunity principles bar the assessment of civil penalties against TVA in a Clean Air Act citizens suit such as this one.

After we set out the facts and applicable law in some detail and explain our reasoning in more depth, we will affirm the grant of summary judgment in favor of TVA with respect to the alleged violations occurring before May 20, 1999, but we will reverse the grant of summary judgment with respect to violations occurring on or after May 20, 1999. We will also affirm the grant of summary judgment to TVA insofar as it disallows civil penalties.


TVA operates eleven coal-fired electric power plants that generate electricity for customers in seven states. One of them is the Colbert plant which is located about ten miles west of Tuscumbia, Alabama, on the Tennessee River in the northwest corner of Alabama.

The Colbert plant has five generator units. To generate electricity, pulverized coal is burned in the furnace of a unit producing heat that is used to convert water into steam. The steam is transformed into rotational energy, which in turn is converted by a generator into electricity to be distributed throughout the TVA power grid. The coal combustion process also releases by-products that become air pollutants if they are not captured. The plant's pollution prevention equipment does capture a significant amount of the pollutants (as much as 99.9% of some of them), but the remainder is released into the atmosphere through two tall smokestacks. The amount of air pollution is substantial in absolute terms: in 1999, for example, the Colbert plant emitted more than 90,000 tons of air pollutants.

At the time this lawsuit was filed, the Colbert plant was operating under permits ADEM had issued in March 1998. One of the requirements of the Colbert plant's air permits is that TVA install, maintain, and operate a continuous opacity monitoring system ("COMS") in each of the plant's smokestacks. See Ala. Admin. Code r 335-3-12-.02(3). As its name indicates, COMS is a device that monitors continuously the opacity of a plume of smoke.

Opacity is one of the most basic emission limitations imposed on sources of particulate air pollution such as the Colbert plant's two smokestacks. The term "opacity" refers to the extent to which a plume of smoke "reduce[s] the transmission of light and obscure[s] the view of the background." Ala. Admin. Code r. 335-3-1-.02(1)(tt). For example, a plume with 20% opacity blocks 20% of light passing through it; no light passes through a plume with 100% opacity. Opacity is not a pollutant, but instead is a measure of the light-blocking property of a plant's emissions, which is important in the Clean Air Act regulatory scheme as an indicator of the amount of visible particulate pollution being discharged by a source.

COMS measures opacity by projecting a beam of light across the interior diameter of a smokestack to a mirror mounted on the opposite side of the smokestack wall and measuring how much of the light is reflected back. COMS then records the amount of light that was absorbed or scattered on the trip. It is undisputed that at all relevant times each of the Colbert plant COMS has functioned properly, accurately measuring opacity.


As required by Section 110 of the Clean Air Act, 42 U.S.C. § 7410, the State of Alabama maintains a state implementation plan (SIP) to enforce national ambient air quality standards developed by EPA. Id. § 7410(a)(1). Alabama's SIP is codified at 40 C.F.R. § 52.69. It incorporates by reference certain provisions of ADEM's Air Pollution Control Program regulations set out at Ala. Admin. Code r. 335-3-1 et seq., see 40 C.F.R. § 52.69. Some provisions, however, have not been approved by EPA and therefore are not part of the Alabama SIP. Three provisions of the ADEM regulations are at issue in this case: (1) the 20% opacity limitation, Ala. Admin. Code r. 335-3-4-.01(1)-(2); (2) the 2% de minimis rule, Ala. Admin. Code r. 335-3-4-.01(4); and (3) the credible evidence rule, Ala. Admin. Code r. 335-3-1-.13(2).


The first provision, Alabama's opacity limitation, is incorporated into its SIP and provides as follows: "[N]o person shall discharge into the atmosphere from any source of emission, particulate of an opacity greater than that designated as twenty percent (20%) opacity, as determined by a six (6) minute average." Ala. Admin. Code r. 335-3-4-.01(1)(a) ("Visible Emissions Restrictions for Stationary Sources"). The opacity provision contains four exceptions to the 20% limitation: (1) an exception that allows any source to emit a plume with opacity of up to 40% for one six-minute period per hour; (2) a source-specific exception for "startup, shutdown, load change, and rate change or other short, intermittent periods upon terms approved by the Director [of ADEM] and made a part of [the source's] permit"; (3) an exception that allows the Director of ADEM to adjust the opacity limitation for a source that discharges a pollutant for which there is no ambient air quality standard; and (4) a domestic source exception. Id. r. 335-3-4-.01(1)(b)-(e). As required by its air permits, TVA submits quarterly excess emissions reports that indicate the total number of six-minute periods during which plume opacity data generated by each of its COMS showed that opacity exceeded 20%. See also id. r. 335-3-1-.04(2)(d).

Alabama's opacity regulation also provides that "[c]ompliance with opacity standards ... shall be determined by conducting observations in accordance with Reference Method 9 ...." Id. r. 335-3-4-.01(2). Reference Method 9 relies on a state-certified observer visually gauging the opacity of a plume of smoke as it leaves a smokestack. 40 C.F.R. Pt. 60, App. A-4, Method 9. The method provides the minimum qualifications for certification of observers and outlines procedures that they should follow in the field. Id. Method 9 §§ 2-3. Under Method 9, opacity observations are conducted only...

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