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Environmental News Court Grants Summary Judgment to Citizen Suit Plaintiff Based on Credible Evidence of Opacity Violations On August 27, 2007, a federal court in Alabama granted summary judgment to the Sierra Club in a citizen suit it brought against the Tennessee Valley Authority (TVA). The suit alleged thousands of violations of the 20 percent opacity standard at the TVA’s Colbert County, Alabama coal-fired power plant. The ruling by the Federal District Court for the Northern District of Alabama is notable, because it relied on continuous opacity monitoring system (COMS) data as “credible evidence” of the alleged violations, even though there were no violations demonstrated using the “authorized” method for measuring opacity (Method 9), and there was no evidence of any exceedence of the facility’s particulate matter (PM) emission limit. The credible evidence rule, as its name implies, allows any credible evidence of a violation to be used to demonstrate the existence of the violation. Previously, only “authorized” EPA monitoring techniques, such as Method 9, could be used to establish that a violation had occurred. The Sierra Club v. TVA opinion reportedly is the first instance following the adoption of the credible evidence rule that the rule has been used in a citizen suit against a power company. The underlying suit, which was filed in 2002, has had a complex procedural history. The motion for summary judgment decided on August 27 was urged following a 2005 appeal decided by the Eleventh Circuit. Among other things, the appeals court ruled that although Method 9 was the only method available to demonstrate an opacity violation until Alabama’s version of the “credible evidence” rule was approved by EPA, the credible evidence rule could be applied to any violation that occurred after that date. It held also that a particular provision of the Alabama air pollution rules, which authorizes a source to exceed its opacity limit for up to 2 percent of its operating hours each calendar quarter, was only an undocumented “interpretation” of the Alabama air rules during the relevant period; contravened the Clean Air Act’s mandate of continuous compliance; and had never been approved by EPA as part of Alabama’s state implementation plan. On remand, the Sierra Club moved for summary judgment on TVA’s liability for certain opacity exceedences measured by the COMS at the Colbert County plant that occurred between January 3, 2000 (the effective date of EPA’s approval of the Alabama credible evidence rule) and the cutoff date for the violations alleged in the Sierra Club’s complaint. The district court granted the motion in a lengthy opinion that addressed a number of arguments concerning the use of credible evidence to establish violations. Specifically, the court held that COMS data, by itself, is credible evidence of opacity violations, notwithstanding that the COMS readings could not be “correlated with” Method 9 opacity readings. As the court explained, “If COMS measurements have to be matched up to, correlated or related back to, or scientifically explained in terms of what a simultaneously taken Method 9 test would have shown, then the credible evidence rule is meaningless.” The court later went on to say that although it was not necessary to decide the motion for summary judgment: . . . even were TVA able to show at trial a series of Method 9 tests performed contemporaneously with COMS readings, with the Method 9 readings under 20%, and the COMS over 20%, the court would not have to accept TVA’s technical or margin of error assertions. Advances in technology are not necessarily more accurate but, having received the voluminous filings and the declarations by various witnesses dealing with opacity testing methodology, the court finds that there is not a material factual dispute that COMS monitoring is, first, credible evidence, [and] second, a more accurate and reliable testing methodology [than Method 9] . . . . The court also held that the COMS data, by itself, was sufficient to find for the Sierra Club on a motion for summary judgment. For purposes of its summary judgment motion, the Sierra Club had agreed to drop its claims for opacity exceedences during “safe harbor” periods of startup, shutdown, and load change, and the TVA had agreed to waive any technical or permit defenses to opacity readings above 25 percent. However, TVA apparently had argued that since Method 9 was accurate only to plus or minus 5 percent or since data collected more frequently than every six minutes might not show a violation, there were factual issues concerning whether any COMS readings between 20 and 25 percent were actually evidence of violations. The court found that under the credible evidence rule, the COMS data showing opacity readings between 20 and 25 percent was sufficient evidence of a violation. Since there were no material factual disputes that the readings exceeded 20 percent, and since TVA’s COMS did not record data more frequently than every 2
six minutes, there was sufficient evidence in the record to find TVA liable for these exceedences. TVA is exempt from civil penalties, because it is a federal agency, but it remains liable for injunctive relief. The court’s opinion addressed only the liability issues, so it remains to be seen what injunctive relief the court might find to be appropriate. The court expressed some sympathy to TVA for its result, since four of the Colbert facility’s units met the opacity standard 99 percent of the time and the fifth met the opacity standard 99.5 percent of the time. But the court felt constrained by the 2005 appellate opinion and the credible evidence rule to find that TVA violated its opacity standard nearly 3,400 times between January 3, 2000 and September 26, 2002. That COMS data was found to be credible evidence is not surprising on its face, but the opinion is instructive because for all of the controversy surrounding the credible evidence rule, there have been few reported decisions that have addressed how the rule should be applied. This federal district court, at least, did not require any evidence using the prescribed compliance method, nor did it give much weight to attacks on the “credibility” of otherwise “credible evidence.” As a result, the owners of facilities with air emissions should be attentive to the implications of any data they may be generating that could be used to demonstrate a violation of an emission standard, even if authorized or other emission measurements demonstrate compliance. For more information about the Sierra Club v. TVA opinion or the credible evidence rule generally, please contact Vinson & Elkins lawyers Chris Amandes at 713.758.1146 or Eric Groten at 512.542.8709. TCEQ Issues Long-Awaited Small MS4 Stormwater Discharge General Permit After an almost five-year wait, on August 13, 2007, TCEQ finally issued Texas Pollutant Discharge Elimination System (TPDES) General Permit TXR040000, which provides permit coverage for stormwater discharges associated with municipal separate storm sewer systems (MS4s) serving less than 100,000 persons (small MS4s). These new regulations require regulated small MS4 operators to develop and implement a stormwater management program (SWMP) consisting of six comprehensive control measures designed to limit pollution discharged to surface waters in the state. Small MS4 operators that choose to obtain authorization under this general permit must submit a SWMP and a completed notice of intent (NOI) form to TCEQ on or before February 11, 2008. Background On September 14, 1998, TCEQ received authority from EPA to administer the TPDES program (which program includes the discharge of stormwater) as it relates to “surface waters in the State,” which term includes lakes, ponds, rivers, the Gulf of Mexico inside the territorial limits of the state, and all other bodies of surface water that are wholly or partially in Texas. On December 8, 1999, EPA published Phase II stormwater regulations that required regulated small MS4 operators to obtain permit coverage by March 10, 2003. These Phase II small MS4 regulations are in the federal rules at 40 C.F.R. Sections 122.30 through 122.37, which sections (other than the federal guidance in Sections 122.33 and 122.34) were adopted by reference as amended by TCEQ at 30 T.A.C. Section 281.25(b). Accordingly, TCEQ published notice of a proposed small MS4 general permit in the September 27, 2002 issue of the Texas Register, with the original comment period ending on November 15, 2002. However, on September 15, 2003, the U.S. 9th Circuit Court of Appeals (Court), in Environmental Defense Center v. EPA, 344 F.3d 832 (9th Cir., 2003) issued a revised panel decision that remanded portions of the federal Phase II rules affecting small MS4s to EPA. The Court found that portions of the federal regulations were not consistent with the federal Clean Water Act because the Phase II rules did not, among other things, address public participation in the permitting process, namely, not allowing the public to comment on NOIs submitted by applicants seeking permit coverage under the general permit. EPA responded by issuing a memorandum dated April 16, 2004 in which EPA provided guidance for permitting authorities, such as TCEQ, on how to issue general permits consistent with the Court’s decision. TCEQ revised the proposed general permit in accordance with EPA memorandum and published notice of the revised proposed general permit on August 26, 2005. A public meeting on the revised proposed permit was held in Austin on September 29, 2005, and the comment period for the revised permit ended at the close of the public meeting. Who Is Eligible to Apply for Small MS4 General Permit Coverage? Stormwater permitting programs already exist for large MS4s (serving 250,000 or more persons) and medium MS4s (serving 3
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