Sierra Club v. Georgia Power Co.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11314 MARCH 30, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-00151-CV-JTC-3

SIERRA CLUB,
PHYSICIANS FOR SOCIAL RESPONSIBILITY,
GEORGIA FORESTWATCH,
EILEEN LANGE,

Plaintiffs-Appellees,

versus

GEORGIA POWER COMPANY,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(March 30, 2006)

Before BLACK, HULL and FARRIS *, Circuit Judges.

*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
HULL, Circuit Judge:

In this citizen enforcement action, the Sierra Club and other public interest

plaintiffs (collectively, “Sierra Club”) allege violations of the Clean Air Act, 42

U.S.C. §§ 7401-7671q, at Plant Wansley, a large power plant owned and operated

by Georgia Power Company (“Georgia Power”). Specifically, Sierra Club asserts

that on thousands of occasions between 1998 and 2002, Plant Wansley’s emissions

exceeded limits prescribed by the Plant’s operating permit issued under Title V of

the Clean Air Act (the “Title V permit”).

The district court granted partial summary judgment in favor of Sierra Club

on Counts One and Two of the complaint. After review and oral argument, we

reverse the district court’s finding of liability as a matter of law on those counts

and remand for further proceedings regarding liability.

I. The Clean Air Act

Untangling this dispute requires an understanding of both the state and the

federal responsibilities under the Clean Air Act. As such, we begin with an

overview of the Clean Air Act’s scheme of joint state and federal implementation.

A. State Implementation Plans (“SIPs”)

The Clean Air Act strives “to protect and enhance the quality of the Nation’s

air resources so as to promote the public health and welfare and the productive

2
capacity of its population.” 42 U.S.C. § 7401(b)(1). The Clean Air Act sets out a

two-stage process for achieving this goal. In the first stage, the federal

Environmental Protection Agency (“EPA”) sets “national ambient air quality

standards” for various pollutants. 42 U.S.C. § 7409. In the second stage, each

state creates and implements a plan, known as a “State Implementation Plan” or

“SIP,” to ensure its air meets the EPA standards. See 42 U.S.C. § 7410.

Before implementing its plan, each state must submit a proposed SIP to the

EPA for approval. 42 U.S.C. § 7410(a)(1). To gain EPA approval, the SIP must

“include enforceable emission limitations and other control measures, means, or

techniques . . . as may be necessary or appropriate to meet the applicable [Clean

Air Act] requirements.” 42 U.S.C. § 7410(a)(2). Each state’s SIP must “assure

that national ambient air quality standards are achieved.” 42 U.S.C. §

7410(a)(2)(c).

Each state must revise its SIP periodically to account for new EPA standards

and new emissions reduction technologies. 42 U.S.C. § 7410(a)(2)(H). Like an

entirely new SIP, any SIP revisions must be open to public hearing and comment

and must be approved by the EPA. 42 U.S.C. § 7410(a)(1). The EPA may also

make what is known as a “SIP call,” notifying a state of inadequacies in its current

SIP and requesting that the state submit a revised plan. See 42 U.S.C. §

3
7410(k)(5).

Georgia’s SIP provisions are codified in the Georgia Rules for Air Quality

Control, see Ga. Comp. R. & Regs. Ch. 391-3-1, which for simplicity we refer to

as the Georgia Rules.

B. The Title V Permit

In 1990, Congress amended the Clean Air Act to add Title V, see 42 U.S.C.

§§ 7661-7661f, to assist in compliance and enforcement of air pollution controls.

Clean Air Act Amendments of 1990, Pub. L. No. 101-549, §§ 501-507, 104 Stat.

2399, 2635-48 (1990). “Under Title V, major stationary sources of air pollution

are required to obtain an operating permit, which establishes the [Clean Air Act]

requirements for, among other things, emission limitations relevant to the

particular polluting source.” Legal Envtl. Assistance Found., Inc. v. EPA, 400

F.3d 1278, 1279 (11th Cir. 2005).

The intent of Title V is to consolidate into a single document (the operating

permit) all of the clean air requirements applicable to a particular source of air

pollution. The Title V permit program generally does not impose new substantive

air quality control requirements. Rather, a Title V permit “enable[s] the source,

States, EPA, and the public to understand better the requirements to which the

source is subject, and whether the source is meeting those requirements.”

4
Operating Permit Program, 57 Fed. Reg. 32,250, 32,251 (July 21, 1992) (codified

at 40 C.F.R. § 70).

Title V authorizes each state to design its own stationary source permitting

program and to submit that program to the EPA for approval. 42 U.S.C. § 7661a.

Georgia’s Title V permitting program began on an interim basis in 1995. In 2000,

the EPA granted final approval of Georgia’s Title V program effective August 7,

2000. See 40 C.F.R. § 70 app. A.1 As with Georgia’s other duties under the Clean

Air Act, the Georgia Title V program is administered by the Environmental

Protection Division (“EPD”) of Georgia’s Department of Natural Resources.

When the state EPD issues a Title V permit, the terms of the permit must

comply with Georgia’s EPA-approved SIP. See 40 C.F.R. § 70 (setting minimum

requirements for state operating permit programs and standards for state-issued

permits).2 While the state EPD is primarily responsible for issuing Title V permits

in Georgia, each permit approved by the EPD also must be submitted to the federal

EPA for review. See 42 U.S.C. § 7661d(b); see generally N.Y. Pub. Interest

1
The EPA approved Georgia’s Title V program on an interim basis in November 1995.
See Clean Air Act Final Interim Approval of Operating Permits Program; Georgia, 60 Fed. Reg.
57,836 (Nov. 22, 1995). Subsequently, Georgia submitted to the EPA a series of revisions to the
program before the EPA issued its final approval in 2000. See 40 C.F.R. § 70 app. A.
2
In addition, the state EPD may not approve a permit application without adhering to
certain public notice and comment procedures. See 40 C.F.R. § 70.7(a)(1)(ii); 40 C.F.R. §
70.7(h).

5
Research Group, Inc. v. Johnson, 427 F.3d 172, 176 (2d Cir. 2005). The EPA may

object to the permit and send it back to the state EPD to correct the problem

perceived by the EPA. Id. at 176. If the EPA declines to object to the submitted

permit within 45 days, “any person” may petition the EPA requesting that the

agency object. Id.3

C. Citizen Enforcement

The Clean Air Act gives “any person” the authority to bring a civil action on

his or her own behalf “against any person . . . who is alleged to have violated . . .

an emission standard or limitation under this chapter.” 42 U.S.C. § 7604(a)(1).

“An emission standard or limitation” is defined to include “any other standard,

limitation, or schedule established under any permit issued pursuant to [Title V] or

under any applicable State implementation plan approved by the [EPA]

Administrator.” 42 U.S.C. § 7604(f)(4). Accordingly, citizens may sue to enforce

the terms of a stationary source’s Title V permit.

“‘[T]he citizen suit is meant to supplement rather than to supplant

governmental action.’” Am. Canoe Ass’n, Inc. v. City of Attalla, 363 F.3d 1085,

3
The Clean Air Act requires that the EPA “shall . . . object” to the permit if the petition
demonstrates that the permit does not comply with the Clean Air Act. Johnson, 427 F.3d at 176.
The EPA’s denial of a petition to object to a Title V permit is subject to judicial review. Id.; see
also 42 U.S.C. § 7607(b) (granting jurisdiction to the D.C. Court of Appeals to review a variety
of EPA decisions taken under the Clean Air Act).

6
1089 n.5 (11th Cir. 2004) (quoting Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Found., Inc., 484 U.S. 49, 60, 108 S.Ct. 376, 383 (1987)). As such, prior to

initiating litigation, a citizen enforcer must notify the EPA, the alleged violator,

and the relevant state agency of the citizen’s intent to sue. 42 U.S.C. § 7604(b).

The citizen enforcer may not sue until sixty days after sending the notice letters,

and his lawsuit is barred if “the [EPA]Administrator or State has commenced and

is diligently prosecuting a civil action in a court of the United States or a State to

require compliance with the standard, limitation, or order.” 42 U.S.C. §

7604(b)(1)(B).

II. Plant Wansley

Plant Wansley, located in Heard County, Georgia, is a large power plant

facility that burns fossil fuels in seven principal emission units. Two of these units

are older, coal-fired, steam electric generating units that emit exhaust through a

1000-foot tall stack. These older units are referred to as SG01 and SG02.

Plant Wansley’s Title V permit limits the opacity of emissions from SG01

and SG02 to 40%. [Permit Condition 3.4.2].4 This permit condition is a

4
“Opacity” refers to the visibility of the emissions exiting the stack. A 100% opacity
would mean that no light at all could pass through the emissions, whereas 0% opacity would
mean light passes completely through the emissions and they are effectively invisible. While
opacity is not itself a regulated pollutant, it acts as a measurement surrogate for particulate
matter (PM), which is a regulated pollutant for which the EPA has set national ambient air
quality standards.

7
restatement of the identical requirement from the Georgia SIP, a requirement that

appears in the Georgia Rules. See Ga. Comp. R. & Regs. 391-3-1-.02(2)(b)(1).

The 40% opacity limit has been part of Georgia’s SIP for the entire period relevant

to this lawsuit.

Plant Wansley’s permit requires that the Plant continuously monitor the

opacity of its emissions and report all excess emissions to the EPD. [Permit

Conditions 5.2.1.a, 5.2.7.a, 5.3.1].5 Plant Wansley has installed what is known as a

continuous opacity monitoring system, or “COMS,” on the two coal-fired units.

The COMS, which is located at a height of 430 feet within the stack, shines a light

through the emissions to measure opacity. The COMS summarizes the opacity

data over six-minute intervals, so there is a different opacity measurement for

every six-minute period. Once Plant Wansey submits this data to the EPD and

EPA, these emissions reports become public documents.

Plant Wansley’s COMS data shows that during roughly 4,000 six-minute

intervals from 1998 to 2002, the opacity of emissions eminating from SG01 or

SG02 exceeded 40%. Based on this data, Counts One and Two of Sierra Club’s

lawsuit allege that the emissions from SG01 and SG02 represent violations of the

Georgia SIP and the terms of Plant Wansley’s Title V permit.

5
See note 10, infra.

8
 In the district court, Georgia Power did not dispute the COMS data and thus

the fact that these exceedances occurred is not at issue. Instead, Georgia Power

contends that these exceedances were not Clean Air Act violations because all

exceedances occurred during periods of startup, shutdown, or malfunction

(“SSM”). The permit and the Georgia Rules each include an SSM provision that,

according to Georgia Power, allows Plant Wansley to exceed the 40% opacity limit

during SSM. Thus, we turn to the state-wide SSM Rule and the Plant Wansley-

specific SSM condition in Plant Wansley’s Title V permit.

A. The Georgia SSM Rule

Georgia’s SSM Rule was adopted as part of the Georgia SIP in 1979 and

approved by the EPA in 1980.6 Since 1980, the Georgia SSM Rule has not been

revised and has been a continuous part of the Georgia SIP.

The Georgia SSM Rule expressly addresses exceedances that occur during

SSM. According to the Georgia SSM Rule, “[e]xcess emissions resulting from

6
There has been some confusion over the original date of approval of the Georgia SSM
Rule. Although the exact language of the SSM Rule is not quoted, Federal Register entries from
1979 and 1980 suggest that the Georgia SSM Rule was approved in 1980. See 44 Fed. Reg.
47,557, 47,558 (Aug. 14, 1979) (discussing the Georgia SIP and stating that “[a] new subsection
has been added concerning the conditions under which excess emissions resulting from [SSM]
may be excused”); 45 Fed. Reg. 780 (Jan. 3, 1980) (EPA approval of the Georgia SIP discussed
in 44 Fed. Reg. 47,557); 40 C.F.R. § 52.572 (1980) (approving Georgia SIP). It also appears
that the EPA itself believes the SSM Rule was approved in 1980. See In re: Monroe Power Co.,
Pet. No. IV-2001-8, at 13 (EPA Oct. 9, 2002).
In any case, on appeal both parties apparently accept that the SSM Rule has been part of
Georgia’s SIP since 1980.

9
startup, shutdown, [or] malfunction of any source which occur though ordinary

diligence is employed shall be allowed” so long as: (1) the best operational

practices to reduce emissions were used; (2) pollution control equipment was

operated properly; and (3) “the duration of excess emissions [was] minimized.”

Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)7(i) (emphasis added).7

B. The SSM Condition in Plant Wansley’s Permit

Plant Wansley’s Title V permit, which became effective on January 1, 2000,

also contains an SSM provision. Although the SSM condition in Plant Wansley’s

permit is derived from the state-wide SSM Rule, the SSM condition is phrased

slightly differently.8

7
The Georgia SSM rule reads in its entirety (with emphasis added):

7. Excess Emissions:
(i) Excess emissions resulting from startup, shutdown, malfunction of any
source which occur though ordinary diligence is employed shall be allowed
provided that (I) the best operational practices to minimize emissions are
adhered to, and (II) all associated air pollution control equipment is operated in
a manner consistent with good air pollution control practice for minimizing
emissions, and (III) the duration of excess emissions is minimized.
(ii) Excess emissions which are caused entirely or in part by poor maintenance,
poor operation, or any other equipment or process failure which may reasonably
be prevented during startup, shutdown or malfunction are prohibited and are
violations of this Chapter (391-3-1).
(iii) The provisions of this paragraph 7. shall apply only to those sources which
are not subject to any requirement under section (8) of this Rule (i.e. Rule
391-3-1-.02) or any requirement of 40 CFR, Part 60, as amended, concerning
New Source Performance Standards.
Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)7(i).
8
For clarity, in this opinion the “SSM Rule” refers always to the Georgia SSM rule of
general applicability that appears in the Georgia SIP. The “SSM condition” refers always to the

10
 The SSM condition in Plant Wansley’s Title V permit states that “[t]he

Division [i.e., Georgia EPD] may allow excess emissions in certain cases as

described below.” [Permit Condition 8.13.1] (emphasis added). The permit then

repeats the relevant language from the Georgia SSM Rule, stating that “[e]xcess

emissions resulting from startup, shutdown, [or] malfunction of any source which

occur though ordinary diligence is employed shall be allowed” provided that: (1)

the best operational practices to reduce emissions were used; (2) pollution control

equipment was operated properly; and (3) “the duration of excess emissions [was]

minimized.” [Permit Condition 8.13.1.a] (emphasis added).9

similarly worded SSM provision from Plant Wansley’s Title V permit.
9
The SSM condition in Plant Wansley’s permit reads in its entirety (with emphasis
added):

8.13 Excess Emissions
8.13.1 The Division [i.e. Georgia EPD] may allow excess emissions in certain
cases as described below.
a. Excess emissions resulting from startup, shutdown, malfunction of any
source which occur though ordinary diligence is employed shall be
allowed provided that:
[391-3-1-.02(2)(a)7(i)]
i. The best operational practices to minimize emissions are
adhered to;
ii. All associated air pollution control equipment is operated in a
manner consistent with good air pollution control practice for
minimizing emissions; and
iii. The duration of excess emissions is minimized.
b. Excess emissions which are caused entirely or in part by poor
maintenance, poor operation, or any other equipment or process failure
which may reasonably be prevented during startup, shutdown or
malfunction are prohibited and are violations of this Permit.
[391-3-1-.02(2)(a)7(ii)]

11
C. District Court’s Order

The district court concluded that even if the exceedances at Plant Wansley

occurred during SSM, this fact offers Georgia Power no defense against Sierra

Club’s lawsuit. Sierra Club v. Georgia Power Co., 365 F.Supp.2d 1297, 1304-05

(N.D. Ga. 2004). Georgia Power conceded that the exceedances took place, and

therefore the district court’s SSM decision led the court to grant partial summary

judgment in Sierra Club’s favor. Id. at 1308-09. Because the district court found

categorically that Georgia Power could not raise an SSM defense, the district court

did not evaluate whether any or all of the 4,000 alleged exceedances occurred

during SSM.10

The district court’s opinion focused on the SSM condition in the Plant

Wansley permit, and in particular on its opening language stating that “the [EPD]

may allow excess emissions in certain cases as described below.” Id. at 1305. In

the district court’s view, “the condition’s plain language limits it to what EPD

c. Paragraphs (a) and (b) of this condition shall not apply if precluded by
any other State or Federal regulation or elsewhere in this permit.
[391-3-1-.02(2)(a)7(iii)]
10
There is no claim in the complaint or issue on appeal regarding whether Plant Wansley
must report all emissions, as opposed to reporting only emissions in excess of its permit limits.
Rather, the narrow issue on appeal is solely whether the excess emissions which Plant Wansley
did report to the EPD constitute Clean Air Act violations as a matter of law. We thus review
only whether Georgia Power, as a matter of law, is precluded from raising an SSM defense to the
alleged violations based on the SSM provision in the Georgia Rules and in Plant Wansley’s Title
V permit.

12
‘may allow . . . in certain cases.’” Id. In other words, the district court accepted

Sierra Club’s position that because the SSM condition refers explicitly to the EPD

(and not to citizen enforcers), it does not offer Georgia Power a defense where the

allegations of opacity violations are raised in a citizen enforcement action.

Upon motion by Georgia Power, the district court certified its liability ruling

for interlocutory appeal. See 28 U.S.C. § 1292(b). We subsequently granted

Georgia Power’s petition for leave to appeal the partial summary judgment order.

Id.

III. Discussion

As quoted earlier, Georgia’s SSM Rule, approved by the EPA, states that

SSM violations “shall be allowed” provided three conditions are met. Ga. Comp.

R. & Regs. 391-3-1-.02(2)(a)7(i). The SSM rule is categorical and unambiguous.

The SSM Rule does not limit the SSM defense to actions initiated by the EPD, but

simply provides a potential defense to alleged violations where the emissions

exceedances at issue occur during SSM. Quite clearly, the SSM Rule applies to

any enforcement action, whether initiated by the EPD or, as in this litigation, by a

private citizen.

Despite the straightforward language in Georgia’s SSM Rule, Sierra Club

contends that Georgia Power nonetheless cannot invoke the SSM Rule as a defense

13
in this action. We address each of Sierra Club’s arguments and why the district

court erred in adopting Sierra Club’s position.

A. EPA’s Current SSM Policy Does Not Revoke Georgia’s SSM Rule

Sierra Club’s first argument is that Georgia Power may not invoke Georgia’s

SSM Rule as a defense because Georgia’s SSM Rule provides a broader SSM

defense than now allowed by the EPA. The district court agreed, giving particular

weight to the EPA’s 1999 Guidance policy on SSM provisions. Sierra Club v.

Georgia Power Co., 365 F.Supp.2d at 1304-06.

The EPA’s 1999 Guidance provides that SIPs may include only very narrow

affirmative defenses for SSM exceedances and may not automatically exempt SSM

emissions from enforcement. State Implementation Plans: Policy Regarding

Excess Emissions During Malfunctions, Startup, and Shutdown, Memorandum

from Steven A. Herman, Assistant Adm’r for Enforcement and Compliance

Assurance, to Reg’l Adm’rs (Sept. 20, 1999) (the “1999 Guidance”). It is clear

that Georgia’s SSM Rule creates a broader SSM defense than that described in the

1999 Guidance.11 Even so, Sierra Club’s reliance on the EPA’s 1999 Guidance is

11
The 1999 Guidance is founded on the EPA’s reading of § 110 of the Clean Air Act, 42
U.S.C. § 7410. The 1999 Guidance asserts that the EPA cannot approve SIPS that include SSM
provisions that “would undermine the fundamental requirement of attainment and maintenance
of the national ambient air quality standards.” 1999 Guidance, at 2 (citing 42 U.S.C. § 7410(a)).
As such, the 1999 Guidance first advises that it is the EPA’s policy that “any [SIP]
provision that allows for an automatic exemption for excess emissions is prohibited.” 1999
Guidance (Attachment) (footnote omitted). As for affirmative SSM defenses, the 1999

14
misplaced.

The first reason Sierra Club’s argument fails is that its position is utterly at

odds with the EPA’s 2001 Clarification of its SSM policy. See Memorandum from

Eric Schaeffer, Dir., Office of Regulatory Enforcement, to Reg’l Adm’rs (Dec. 5,

2001) (the “2001 Clarification”). The 2001 Clarification explains that the EPA’s

1999 Guidance “was not intended to alter the status of any existing [SSM]

provision in a SIP that has been approved by EPA. Similarly, the [1999] Guidance

was not intended to affect existing permit terms or conditions regarding [SSM] that

reflect approved SIP provisions, including opacity provisions.” Id. at 1. By the

clear terms of the 2001 Clarification, even assuming that the EPA is now opposed

to SSM defenses as broad as Georgia’s SSM Rule, the EPA’s policy was only

meant to apply prospectively, “in the context of future rulemaking actions.” Id. at

Guidance allows states to include affirmative defenses for SSM exceedances, but only where the
affirmative defense is extremely narrow. The 1999 Guidance explains generally that “states may
address [SSM exceedances] through the use of enforcement discretion or they may include a
general affirmative defense provision in their SIPs for short and infrequent startup and shutdown
periods along the lines in the attachment.” 1999 Guidance at 4. According to the 1999
Guidance, “an acceptable [SSM] affirmative defense provision may only apply to actions for
penalties, but not to actions for injunctive relief.” 1999 Guidance at 2.
The 1999 Guidance then explains in detail how a state should tailor an SSM affirmative
defense provision narrowly enough for EPA approval. An affirmative defense applicable to
malfunction periods “must provide that the defendant has the burden of proof of demonstrating”
that ten specific conditions are met. 1999 Guidance (Attachment). An affirmative defense
applicable to startup and shutdown periods “must provide that the defendant has the burden of
proof of demonstrating” that nine specific conditions are met. Id.
In contrast to the 1999 Guidance, Georgia’s SSM Rule includes only three conditions and
is not limited to actions for penalties, and thus is broader than the SSM provisions described in
the 1999 Guidance.

15
2.

For this reason, the Sixth Circuit decision on which the district court heavily

relied, Mich. Dep’t of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000), is

largely irrelevant. In that case, Michigan sought EPA approval for a SIP revision,

one that included a new SSM provision. Id. at 183. Although the EPA rejected

Michigan’s SSM provision, it did so during the SIP approval process, i.e. “in the

context of future rulemaking.” See id. at 184; 2001 Clarification at 2. In contrast,

Georgia’s SSM Rule has been in place since 1980, and the 2000 approval of Plant

Wansley’s Title V permit did not in any way alter the general SSM provision in the

Georgia SIP.12

Second, even if the EPA had intended its 1999 SSM policy to alter the

meaning of Georgia’s existing SSM Rule and similar provisions in other states’

12
Indeed, the EPA has stated specifically that the Georgia SSM Rule remains in effect
regardless of the 1999 Guidance and with respect to an SSM condition identical to that in Plant
Wansley’s Title V permit. See Monroe Power Co., at 13.
Monroe Power’s Title V permit includes the identical SSM condition that appears in
Plant Wansley’s permit. After the EPD approved a draft of Monroe Power’s permit, Sierra Club
and other public interest groups petitioned the EPA to object to it. Id. at 1. Sierra Club asked the
EPA to clarify the SSM condition in Monroe Power’s permit, reminding the EPA of its policy
prohibiting automatic SSM exemptions.
In Monroe Power, the EPA agreed with Sierra Club that automatic SSM exemptions
would no longer be approved, but the EPA also explained that its 1999 SSM policy was not
meant to “alter the status” of existing and approved SSM provisions. Id. at 14 (“EPA cannot
properly object to a . . . permit term that is derived from a federally approved SIP. . . . [EPA]
may not, in the context of reviewing a potential objection to a title V permit, ignore or revise
duly approved SIP provisions.”). Thus, the 1999 Guidance neither altered nor invalidated the
pre-existing Georgia SSM Rule.

16
SIPs, the EPA would have been powerless to effect such a change absent formal

SIP revision. Georgia’s SSM Rule is a part of the Georgia SIP adopted by Georgia

and approved by the EPA through the formal rulemaking process prescribed in the

Clean Air Act. See 42 U.S.C. § 7410(a)(1). In contrast, the EPA’s 1999 Guidance

concerning SSM provisions is not a regulation and is not due the same level of

deference as formally adopted rules. United States v. Mead Corp., 533 U.S. 218,

229-31, 121 S. Ct. 2164, 2172-73 (2001). EPA policy guidance cannot trump the

SSM Rule adopted by Georgia and approved formally by the EPA.

If the EPA believes that its current interpretation of the Clean Air Act

requires Georgia to modify its SSM Rule, the EPA should require the state to

revise its SIP to conform to EPA policy. See 42 U.S.C. § 7410(k)(5) (outlining the

“SIP call” procedure under which EPA may notify a state of SIP inadequacies and

require the state to submit a revised plan). Because the EPA has not done so,

Georgia’s SSM Rule remains in effect regardless of the EPA’s currently espoused

policy. See 42 U.S.C. § 7410(n)(1) (“Any provision of any applicable

implementation plan that was approved or promulgated [before November 15,

1990] shall remain in effect as part of such applicable implementation plan, except

to the extent that a revision to such provision is approved or promulgated by the

[EPA] Administrator pursuant to this chapter.”).

17
 Accordingly, considered without reference to Plant Wansley’s Title V

permit, the SSM Rule of state-wide applicability clearly offers Georgia Power an

affirmative defense to Sierra Club’s enforcement action, which Georgia Power

may attempt to prove.13 Because Plant Wansley’s permit and the SSM condition

therein did not become effective until January 1, 2000, at the very least the district

court erred in precluding Georgia Power from raising an SSM defense to the

violations alleged before that date.

B. Plant Wansley’s Permit Simply Restates the SSM Rule

Given that Georgia’s SSM Rule clearly allows Georgia Power to raise an

SSM affirmative defense, Sierra Club alternatively focuses not on Georgia’s SSM

Rule, but rather on the SSM condition in Plant Wansley’s Title V permit. Sierra

13
We also reject Sierra Club’s alternative argument that Georgia’s SSM Rule does not
apply to Plant Wansley at all.
Georgia’s SSM Rule does not apply to “sources” that are subject to the Clean Air Act’s
“New Source Performance Standards” (“NSPS”). See Ga. Comp. R. & Regs.
391-3-1-.02(2)(a)7(iii). Plant Wansley’s Unit 5A (a gas-fired generating unit) is subject to
NSPS, and the SSM Rule therefore does not apply to Unit 5A. However, Plant Wansley’s Units
SG01 and SG02 (the two coal-fired units at issue) are not subject to NSPS. See Br. of Appellee,
at 53 (acknowledging that Unit 5A is subject to NSPS but SG01 and SG02 are not). As such,
Georgia’s SSM Rule applies to the exceedances alleged at SG01 and SG02.
Sierra Club is correct that the entire Plant Wansley is a single “major stationary source.”
See Sierra Club v. Leavitt, 368 F.3d 1300, 1302 n.1 (11th Cir. 2004). Even so, a “major
stationary source” may encompass numerous “sources.” 42 U.S.C. § 7661(2); see also EPA’s
response to Sierra Club’s Comments on Georgia’s Title V program, Mar. 29, 2002, at 2 (noting
that “it is not uncommon to have both NSPS and non-NSPS emission sources at the same
facility”). Thus Georgia’s SSM Rule applies to SG01 and SG02 regardless of the fact that it
does not apply to Unit 5A. See also Compl. ¶ 24 (stating that Unit 5A “is not the subject of this
lawsuit”).

18
Club argues that the permit’s language, which differs slightly from the wording of

Georgia’s SSM Rule, does not allow Georgia Power to raise the SSM defense.

Sierra Club emphasizes that although the SSM condition restates the SSM

Rule by providing that SSM exceedances “shall be allowed,” the SSM condition

also adds the introductory statement that “the Division may allow” SSM

exceedances. [Permit Condition 8.13.1] (emphasis added). For two reasons, Sierra

Club contends that this introductory phrase greatly narrows the scope of the SSM

Rule with respect to Plant Wansley.

First, because the introductory phrase focuses on what “the Division” (i.e.

EPD) may do, Sierra Club asserts that the SSM condition only applies to agency

enforcement, making the SSM defense unavailable in a citizen enforcement action.

Sierra Club v. Georgia Power Co., 365 F.Supp.2d at 1304-05. Second, Sierra Club

contends that the use of the word “may” in Plant Wansley’s permit, in reference to

what the EPD “may allow,” should be construed as “merely an acknowledgment of

EPD’s enforcement discretion.” Id. Sierra Club reasons that construing the SSM

condition as merely an expression of EPD’s discretion would ensure consistency

between Plant Wansley’s Title V permit and the EPA’s 1999 Guidance. Id.

One obvious problem with Sierra Club’s reading of the SSM condition’s

“the Division may allow” clause is that it renders the entire SSM condition

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completely superfluous. If the SSM condition simply expresses that the EPD has

enforcement discretion, the SSM condition is essentially meaningless. It goes

without saying that the EPD, like any administrative agency, may choose whether

and when to initiate any enforcement action. Sierra Club’s interpretation

effectively reads the SSM Rule out of Plant Wansley’s permit entirely.

In any event, we do not agree that the SSM condition’s minor alteration of

the wording of the SSM Rule was intended to transform the general affirmative

defense provided by Georgia’s SSM Rule into a narrow statement of the EPD’s

enforcement discretion.14 Instead, by the permit’s explicit terms, the SSM

condition is a restatement of the general SSM Rule. See Permit Condition 8.13.1.a

(citing Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)7(i) – the SSM Rule – as the source

of the permit’s SSM condition). After the words “the Division may allow,” the

SSM condition quotes the rest of the SSM Rule nearly verbatim, stating that

emissions during SSM “shall be allowed” provided that three conditions are met.

We thus read the SSM condition in Plant Wansley’s permit to restate that

where a stationary source can demonstrate that it meets the listed criteria,

exceedances during SSM “shall be allowed.” Our interpretation is confirmed by

14
To clarify its intent in the wake of this lawsuit, the EPD has apparently begun amending
the SSM condition in affected Title V permits to eliminate the introductory phrase “the Division
may allow” to make it clearer that the SSM condition does not alter the SSM Rule. See Br. of
Appellant at 36 n.14.

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the fact that, as discussed above, a Title V operating permit is not intended to

impose additional requirements on a source. Rather, the permit merely

consolidates in a single document all of the clean air requirements already

applicable to that source. See Leavitt, 368 F.3d at 1302 (citing 42 U.S.C. §

7661a(a); 40 C.F.R. §§ 70.7(b), 70.6(a)(1)). Because Sierra Club’s interpretation

of the SSM condition is narrower than the SSM Rule, Sierra Club’s reading is

inconsistent with the Title V program itself. See id. at 1302-03 (stating that SIP

requirements remain binding regardless of a Title V permit).

We conclude that the SSM condition in Plant Wansley’s Title V permit

simply restates Georgia’s SSM Rule. The SSM Rule and the SSM condition are

consistent, and we reject Sierra Club’s attempt to construe Plant Wansley’s permit

to have effectively amended Georgia’s SSM Rule.15

15
Sierra Club admits that under its construction of the SSM condition, Plant Wansley’s
permit is more stringent than the Georgia SIP requires. However, Sierra Club contends that
Georgia Power is “stuck with” the SSM condition as it appears in the Plant Wansley permit.
Sierra Club insists that even if the SSM Rule provides a broader affirmative defense than the
SSM condition, that fact is simply irrelevant to this lawsuit. In Sierra Club’s view, Georgia
Power cannot invoke the SSM Rule without launching an unlawful collateral attack on the Plant
Wansley permit.
Sierra Club is correct that a Title V permit holder may not argue in an enforcement action
that the permit is invalid or unenforceable. See 42 U.S.C. § 7607(b)(2). At the time the Plant
Wansley permit was considered, Georgia Power had the opportunity to object to the SSM
condition in the permit through the Georgia administrative process, or by petitioning the EPA
requesting that the EPA object to the permit. See O.C.G.A. §§ 12-2-2(c)(2), 12-9-15; Ga. Comp.
R. & Regs. 391-1-2-.03(1); 42 U.S.C. § 7661d(b)(2). Georgia Power can no longer attack the
permit for being too strict. See 42 U.S.C. § 7607(b)(2). Thus, Sierra Club is correct that
Georgia Power may not collaterally attack its permit in this lawsuit.
However, Georgia Power is not collaterally attacking its Title V permit. Rather, Georgia

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 IV. Conclusion

In sum, we reverse the district court’s entry of partial summary judgment in

favor of Sierra Club, and remand for further liability proceedings consistent with

this opinion. On remand, Georgia Power should be allowed to raise an affirmative

SSM defense to the exceedances alleged by Sierra Club. Of course, Georgia Power

will be required to prove that the three criteria in Georgia’s SSM Rule and the

permit’s SSM condition are satisfied for each instance of exceedance.16

Ultimately, it appears that Sierra Club’s real complaint is not with Georgia

Power’s permit compliance, but rather with Georgia’s SSM Rule itself. Even with

our holding today, Sierra Club remains free to challenge Georgia’s SSM Rule as

contrary to the Clean Air Act. In particular, Sierra Club could petition the EPA for

rulemaking, asking the EPA to demand that Georgia alter its SIP to conform to the

EPA’s SSM policy.17 See 5 U.S.C. § 553(e) (Administrative Procedure Act’s

petition-for-rulemaking clause); Monroe Power Co., at 14 (explaining that “[a]s

Power is contending – correctly, in our view – that the SSM condition means the same thing as
the SSM Rule. Where Sierra Club’s argument fails is in its exclusive focus on the SSM
condition and its failure to interpret the SSM condition and the SSM Rule together.
16
Although we conclude that Georgia Power may raise an SSM affirmative defense, we
have no occasion to rule on whether Georgia Power can prove that defense with respect to any or
all of the exceedances alleged in the complaint to violate the Clean Air Act.
17
At oral argument, Sierra Club’s counsel averred that Sierra Club has already initiated
such action.

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with any rulemaking, [Sierra Club] is free to file an administrative petition with

EPA requesting that the Agency require Georgia to revise the [SSM] rule”). For

purposes of this particular enforcement action, however, Georgia’s SSM Rule

remains the law, and the SSM condition in Plant Wansley’s Title V permit must be

read accordingly. See, e.g., Bayview Hunters Point Cmty. Advocates v. Metro.

Transp. Comm’n, 366 F.3d 692, 703 (9th Cir. 2004) (citizens may not seek

modification of a SIP through a citizen suit enforcement action).

REVERSED and REMANDED with instructions.

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