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Sierra Club v. Tennessee Valley Auth.

Citation: 35 ELR 20237
No. No. 04-15324, (11th Cir., 11/22/2005)

The court affirms a district court's grant of summary judgment to the Tennessee Valley Authority (TVA) on environmental groups' request for civil penalties and on its claim as to violations of the Clean Air Act's (CAA's) 20% opacity limitation occurring before May 20, 1999, but it reversed summary judgment for TVA on the groups' claim as to violations of the opacity limitation on or after that date. The environmental group failed to establish any violations of the opacity requirement prior to May 20, 1999, because it only has continuous opacity monitoring system (COMS) data, and that data cannot be used to show violations that occurred before Alabama adopted its credible evidence rule on that date. In addition, sovereign immunity bars the assessment of civil penalties against TVA in a CAA citizens suit such as this one. After May 20, 1999, however, TVA relied on the 2% de minimis rule, which allows emissions as measured by COMS to exceed the 20% opacity limitation for up to 2% of the operating hours of the plant in each quarter, measured in six-minute intervals and excluding times during which an exception applies. The state's use of this rule is an illegal, unilateral modification of the U.S. Environmental Protection Agency-approved Alabama state implementation plan (SIP). It was not simply an interpretation of Alabama's credible evidence rule, which is part of its SIP. Thus, the grant of summary judgment in favor of the TVA for violations after May 20, 1999, was reversed.