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National Parks Conservation Ass'n v. Tennessee Valley Auth.

Citation: 32 ELR 20375
No. No. 3:00-CV-547, 175 F. Supp. 2d 1071/(E.D. Tenn., 11/26/2001)

The court dismisses an environmental group's Clean Air Act (CAA) citizen suit alleging that two Tennessee Valley Authority (TVA) plants exceeded Tennessee's state implementation plan (SIP) requirement of 20% opacity for visible emissions 6,500 times between 1996 and 2000. The court first holds that the group failed to comply with CAA § 304(b)'s citizen suit notice requirements. CAA § 304(b) requires citizen suits to give notice of the standard or order allegedly violated. Although the group's notice letter alleges TVA violations of the SIP opacity limit, it does not specify the dates of the alleged violations or identify at which of the two TVA sites the violations occurred. Thus, the group has simply not provided the specificity in its notice that would be required for TVA to determine when its alleged unlawful exceedances had occurred. The court next holds that even if the group had complied with the CAA notice requirements, its claim is not actionable under the Act. The group failed to identify any opacity exceedances that the state environmental agency did not approve or that were not allowed under the TVA's permit. Thus, the group is not alleging that the TVA violated the terms of its CAA permit, but rather is attacking the legality of the permits issued by the state environmental agency. As such, the group's suit is a collateral attack on a facially valid permit, and the CAA does not permit CAA citizen suits to be used to collaterally attack valid permits.

Counsel for Plaintiffs
Wade V. Davies
Ritchie, Fels & Dillard
606 W. Main St., Ste. 300, Knoxville TN 37901
(865) 637-0661

Counsel for Defendant
Robert Glinski
Office of General Counsel
Tennessee Valley Authority
400 W. Summit Hill Dr., Knoxville TN 37902
(865) 632-2241

Jarvis, J.