Brian Fredieu

September 3, 2007

A Federal Court recently ruled that the Tennessee Valley Authority (TVA) violated air pollution rules more than 3,000 times in less than two years at its Colbert power plant located on the Tennessee River near Tuscumbia, Alabama. Two environmental groups, the Alabama Environmental Council and the Sierra Club, sued TVA for violation of the Clean Air Act. On August 27th, U.S. District Judge Virginia Hopkins ruled that TVA is liable for 3,389 separate violations of the Environmental Protection Agency's twenty-percent opacity standard for emissions at the plant.

Opacity is a measure of the light in an emissions stream that is blocked by particulate matter. The more particulate matter in the emissions stream, the greater the opacity. At TVA's Colbert Plant, emissions include particles, sulfur dioxide and nitrogen oxide, according to the ruling.

Hopkins agreed with the Sierra Club, which brought a citizen enforcement action against TVA, that continuous opacity monitoring alone is more accurate than visual monitoring, also known as EPA Monitoring Method 9 ("method 9").

The use of a continuous opacity monitoring system with instruments that gather data to establish a violation is sufficient under Alabama's "credible evidence" rule, Hopkins said. The credible evidence rule, adopted by the Environmental Protection Agency in the 1990s and by Alabama in 1999, said that credible evidence other than method 9 was sufficient to establish a violation.

TVA said Tuesday that it would decide what to do within the next sixty days, which was the time allowed by the judge for submitting a remediation plan. TVA said it is reviewing the decision and an order to file a plan to bring the Colbert plant into compliance with the opacity standard. The utility can file a plan or appeal to the 11th U.S. Circuit Court of Appeals in Atlanta.

Sources:

Sierra Club v. Tennessee Valley Authority, No. 02-2279, slip op. (N.D. Ala. Aug. 27, 2007).

Dennis Shearer, Judge: TVA Violated Rules, Times Daily, Aug. 29, 2007, available at http://www.timesdaily.com/article/20070829/NEWS/708290328/1011.