April 25, 2014

Via Electronic Mail

Ginger Vagenas (AIR–2)

U.S. Environmental Protection Agency, Region 9

75 Hawthorne Street

San Francisco, CA 94105–3901

vagenas.ginger@epa.gov

Re: Sierra Club Comments in Docket No. EPA–R09–OAR–2013–0686

Dear Ms. Vagenas:

EPA is proposing to approve a revision to the Arizona State Implementation Plan (SIP) for 

maintaining the 1997 National Ambient Air Quality Standard for ozone averaged over eight 

hours in the Phoenix-Mesa nonattainment area. EPA proposes to find that the maintenance plan 

meets all applicable requirements of the Clean Air Act (CAA). 

EPA is also proposing to redesignate the Phoenix-Mesa nonattainment area to attainment of the 

1997 8-hour ozone standard. EPA has proposed that the area has met the five criteria for 

redesignation under section 107(d)(3)(E) of the Act.

As Sierra Club describes in detail below, because the Arizona and Maricopa County SIPs contain 

illegal provisions regarding emissions during startup, shutdown and malfunction (SSM) events, 

the proposed ozone maintenance plan and the redesignation do not meet all the applicable 

requirements of Act. Specifically, because of the illegal SSM provisions, EPA cannot find that

Arizona or Maricopa County have met all requirements applicable to the area under section 110 

and part D of the Act, CAA section 107(d)(3)(E)(v), cannot find that the improvements in air 

quality are due to enforceable reductions in emissions, CAA section 107(d)(3)(E)(iii), and cannot 

find that the maintenance plan meets all applicable requirements of the Act, CAA section 

107(d)(3)(E)(iv). EPA has found in other proposed rules that illegal SSM provisions are grounds 

for denying redesignation requests and maintenance plans. See Approval and Promulgation of 

Air Quality Implementation Plans; Utah; Redesignation Request and Maintenance Plan for Salt 

Lake County; Utah County; Ogden City PM10 Nonattainment Area, 74 Fed. Reg. 62717, 62725-

6 (Dec. 1, 2009); see Finding of Substantial Inadequacy of Implementation Plan; Call for Utah 
State Implementation Plan Revision, 76 Fed. Reg. 21639 (Apr. 18, 2011) (Final rule issuing SIP 

call for Utah to revise SSM provisions).

The Sierra Club is America’s oldest and largest grassroots environmental group, with over 1.3 

million members and supporters nationwide, and 12,129 members in the state of Arizona. Sierra 

Club members live, work, attend school, travel and recreate in areas adversely affected by 

pollution in and from the Phoenix area. Sierra Club members enjoy and are entitled to the 

benefits of natural resources that are adversely affected by pollution, including air, water and 

soil; forests and cropland; parks, wilderness areas and other greenspace; and flora and fauna. The 

activities enjoyed by our membership that are affected by this rule include breathing, enjoyment 

of scenic views, walking, gardening, hiking and work-related activities. Sierra Club members 

and their families include members of sensitive populations such as asthmatics, the elderly and 

children who are at elevated risk for the deleterious health effects posed by emissions during 

periods of equipment startup, shutdown and malfunction.

Arizona and Maricopa County SSM SIP Provisions

The Arizona SIP’s SSM provisions include affirmative defenses for excess emissions caused by 

malfunctions, Ariz. Admin. Code § 18-2-310(B) and startup or shutdown, id. § 18-2-310(C), 

available at

http://yosemite.epa.gov/R9/r9sips.nsf/AgencyProvision/87B02615BA87C78888256D160080CB

E8?OpenDocument. 

The Maricopa County Air Pollution Control Regulations contain an SSM provision that is 

identical to the Arizona state provision. Maricopa County Air Pollution Control Regulation 3, 

Rule 140, §§ 401 (affirmative defense for malfunctions), 402 (affirmative defense for startup and 

shutdown), approved by EPA at Revision to the Arizona State Implementation Plan, Maricopa 

County Environmental Services Department, 67 Fed. Reg. 54,957 (Aug. 27, 2002), and available 

at 

http://yosemite.epa.gov/R9/r9sips.nsf/AgencyProvision/0514F87920A9CD0185256FD6005AE5

88?OpenDocument

Affirmative Defense Provisions are Inconsistent with the Clean Air Act

As the D.C. Circuit Court of Appeals recently confirmed in NRDC v. EPA, No. 10-1371 (D.C. 

Cir, Apr. 4, 2014) (“Cement Kiln Decision”), EPA cannot allow affirmative defense provisions 

because they are inconsistent with the Clean Air Act. Id. at 13-18. The Clean Air Act allows 

citizens to enforce violations of the Act and civil penalties are an available remedy. The Act 

unambiguously gives courts the discretion to assess penalties for violations, and it also specifies 

a list of factors courts must consider, including “the seriousness of the violation” and “other 

factors as justice may require.” Affirmative defense provisions conflict with the Clean Air Act 
because they give polluters the means to avoid penalties for their violations of the Clean Air Act, 

thereby limiting courts’ discretion to assess penalties for violations and prevent courts from 

considering statutory factors. The availability of monetary penalties up to $37,500 per violation 

per day is one of the most important enforcement tools in the Clean Air Act.

Section 304(a) of the Clean Air Act, 42 U.S.C. § 7604(a), allows individuals to file citizen suits 

in federal district court against sources that violate emission standards and gives district courts 

authority to impose “any appropriate civil penalties,” which may include monetary penalties. 42 

U.S.C. § 7604(a); see Cement Kiln Decision at 14-15. “By its terms, Section 304(a) clearly vests 

authority over private suits in the courts, not EPA,” or the state. See Cement Kiln Decision at 15-

16 (emphasis in original). As the Supreme Court has described, citizen suit enforcement is 

central to Congress’s enforcement scheme:

Congress enacted § 304 specifically to encourage “citizen participation in the 

enforcement of standards and regulations established under this Act,” S. Rep. No. 

91-1196, p. 36 (1970), and intended the section “to afford ... citizens ... very broad 

opportunities to participate in the effort to prevent and abate air pollution.” 

Pennsylvania v. Del. Valley Citizens Council, 478 U.S. at 546, 560.

Section 113(e)(1) of the Clean Air Act spells out precisely how Congress intended courts to 

determine penalties in Clean Air Act enforcement actions. See Cement Kiln Decision at 15. This 

provision directs courts to:

“...take into consideration (in addition to such other factors as justice may require) 

the size of the business, the economic impact of the penalty on the business, the 

violator’s full compliance history and good faith efforts to comply, the duration of 

the violation as established by any credible evidence . . . payment by the violator 

of penalties previously assessed for the same violation, the economic benefit of 

noncompliance, and the seriousness of the violation.”

42 U.S.C. § 7413(e)(1). This language does not impose any limits on district courts’ authority to 

impose penalties for violating the Clean Air Act. Rather, it sets forth criteria that district courts 

must consider, leaving individual courts to decide on a case-by-case basis how to weigh these 

criteria in determining what penalty, if any, is appropriate.

The D.C. Circuit vacated affirmative defense provisions in an EPA Clean Air Act rule in the 

Cement Kiln Decision, because “the Judiciary, not any executive agency, determines ‘the scope’ 

– including the available remedies – ‘of judicial power vested by’ statutes establishing private 

rights of action.” Cement Kiln Decision at 15 (emphasis in original) (citing City of Arlington v. 

FCC, 133 S. Ct. 1863, 1871 n.3 (2013)). Courts, not EPA or states, must determine civil 
penalties in citizen suits. Neither EPA nor states have the authority to use affirmative defenses 

to restrict the right provided by the Clean Air Act to have penalties imposed on polluters that 

violate their emission standards whenever a district court finds penalties appropriate under 

section 113 of the Act. 

Indeed, EPA has recognized that parts of Arizona’s and Maricopa County’s SIPs are inconsistent 

with the Clean Air Act. In EPA’s Proposed SSM SIP Call Rule, EPA found that Arizona’s 

affirmative defense provisions for startup and shutdown are inconsistent with the Clean Air Act:

“R18–2–310(C) is inconsistent with the requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k), as well as CAA sections 113 and 304. 

The EPA believes that a SIP provision establishing an affirmative defense for 

planned startup and shutdown periods is substantially inadequate to comply with 

CAA requirements. For these reasons, the EPA is proposing to issue a SIP call 

with respect to R18–2–310(C).”

State Implementation Plans: Response to Petition for Rulemaking; Findings of Substantial 

Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods 

of Startup, Shutdown and Malfunction; Proposed Rule, 78 Fed. Reg. 12460, 12534 (Feb. 22, 

2013) (“Proposed SSM SIP Call Rule”). EPA’s Proposed SSM SIP Call Rule also found that the 

similar provisions in the Maricopa County SIP do not comply with the Act’s requirements and 

proposed to issue a SIP call for Maricopa County Air Pollution Control Regulation 3, Rule 140, 

§ 402. Proposed SSM SIP Call Rule at 12535.

Although EPA found that affirmative defenses for malfunctions are permitted under the Clean 

Air Act in the Proposed SSM SIP Call Rule, the D.C. Circuit’s Cement Kiln Decision has since 

rejected EPA’s position and found that affirmative defenses are inconsistent with the Act.

Experience demonstrates that affirmative defense provisions undermine efforts to enforce permit 

violations and therefore can lead to excess emissions. For example, Sierra Club identified 

thousands of self-reported violations at Luminant Generation Company’s Big Brown and Martin 

Lake plants and brought two federal actions to enforce those violations. See Docket to Sierra 

Club v. Energy Future Holdings Corp. et al, No. 5:10-cv-00156 (E.D.T.X Sept. 2, 2010), and 

Sierra Club v. Energy Future Holdings Corp et al, No. W-12-cv-108 (W.D.T.X May 1, 2012). 

However, both the state of Texas and Luminant relied on affirmative defense provisions to 

suggest that none of the thousands of permit exceedances – only some of which are identified in 

the reports submitted to the state as malfunctions – are in fact “violations” with any liability

whatsoever attached. See Memorandum Opinion and Order, Sierra Club v. Energy Future 

Holdings Corp. et al, W-12-cv-108 (W.D.T.X Mar. 28, 2014), attached as Exhibit 1. Polluters 

(sometimes condoned by the state air regulator) have shown that they will make full use of 
affirmative defense provisions to raise the costs of citizen litigation, confuse the courts, and 

avoid both injunctive relief and penalties. As a result, these provisions threaten to swallow the 

rule that emissions limitations must apply on a continuous basis, in clear contravention of 

statutory mandates.

Thus, EPA must disapprove the redesignation request because the state has not met all 

requirements of section 7410 and part D as required by CAA section 107(d)(3)(E)(v). In 

particular, the state has not met CAA section 110(a)(2)(A) because the emission limits in the SIP 

are not enforceable, at least during SSM events, and because the SIP with its faulty SSM 

provision does not ensure attainment and maintenance of the NAAQS. Similarly, the part D 

program is inadequate because the emission limits and emission levels that form the basis of 

offsets are not enforceable.

Similarly, EPA cannot determine that the improvements in air quality are due to enforceable 

reductions in emissions as required by CAA section 107(d)(3)(E)(iii) because the current SSM 

excuse provisions make emission reductions unenforceable. 

Finally, the maintenance plan is not approvable as required by CAA section 107(d)(3)(E)(iv). 

The maintenance plan cannot ensure the maintenance of the NAAQS when emissions can 

increase above the emission inventory and allowable levels during SSM events in violation of 

CAA section 175A(a). 

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Conclusion

For the reasons explained above, EPA must disapprove Arizona’s request to redesignate the 

Phoenix-Mesa nonattainment area to attainment of the 1997 8-hour ozone standard, and EPA 

must also disapprove the proposed SIP revision for maintaining the 1997 8-hour ozone standard 

in the Phoenix-Mesa nonattainment area. 

Sincerely, 

_________________________________

Andrea Issod, Staff Attorney

Sierra Club Environmental Law Program

85 Second St, Second Floor

San Francisco, CA 94105

andrea.issod@sierraclub.org

(415) 977-5544
Exhibit 1
Case 6:12-cv-00108-WSS Document 273 Filed 03/28/14 Page 1 of 55 ;LL\ f'\/ \ 

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION 

SIERRA CLUB, 

Plaintiff, 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

v. 

ENERGY FUTURE HOLDINGS 

CORPORATION and LUMINANT 

GENERATION COMPANY LLC, 

Defendants. 

Civil Action No. W-12-CV-108 

MEMORANDUM OPINION AND ORDER 

This case is a citizen suit brought by Plaintiff Sierra Club pursuant to 

Section 304 of the federal Clean Air Act ("CAA"), 42 U.S.C. § 7604. Plaintiff 

claims that Defendants Energy Future Holdings Corporation ("EFHC") and 

Luminant Generation Company LLC ("Luminant") own a coal-fired power plant, 

Big Brown Plant in Freestone County, Texas ("Big Brown") that has and 

continues to violate particulate matter and opacity limits under the CAA. The 

Court granted partial summary judgment in favor of Defendants and determined 

that there were no particulate matter violations at the Big Brown Plant. 

INTRODUCTION 

On February 24, 2014, this Court held a three-day bench trial on the 

remaining issues on whether Defendants violated the opacity limits at the Big 

Brown Plant. After both parties had the opportunity to present closing 

arguments, the Court ruled in favor of Defendants. Pursuant to Rule 52 of the 

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Case 6:12-cv-00108-WSS Document 273 Filed 03/28/14 Page 2 of 55

Federal Rules of Civil Procedure, the Court issues this Memorandum Opinion of 

Findings of Fact and Conclusions of Law. 1 

FINDINGS OF FACTS 

I. Background 

1. The Big Brown Plant's two units generate electricity with a blend of coal. 

The electricity generated is supplied to 23 million Texas customers via the 

electric grid operated by the Electric Reliability Council of Texas ("ERCOT"). 

2. Big Brown Power Company LLC owns the Big Brown Plant. Big Brown 

Power Company LLC is not a defendant in this case. 

3. Defendant Luminant operates the Big Brown Plant. 

4. Defendant EFH neither owns nor operates the Big Brown Plant. At trial, 

undisputed testimony established that EFH does not operate or maintain Big 

Brown or its emissions control equipment, nor does it direct capital expenditures, 

purchase coal, obtain permits, or submit environmental compliance reports for 

Big Brown. The evidence established that Defendant Luminant does those 

things for Big Brown. 

5. The plant is located in a rural area in Freestone County, Texas. Ms. 

Barbara Lawrence, the only individual member of the Sierra Club organization in 

1 Rule 52(a) obligates the district court to identify its factual findings and 

separately state its conclusions of law in support of its bench trial judgment. Chandler 

v. City of Dallas, 958 F.2d 85, 88-89 (5th Cir. 1992). 

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the area that Sierra Club has identified, lives on Richland-Chambers reservoir, 

approximately 11 miles from the plant. 

6. The Court previously held that Sierra Club has Article Ill standing through 

Ms. Lawrence. See Doc. 202. 

7. More than 60 days before filing this lawsuit, Sierra Club notified 

Defendants, the United States Environmental Protection Agency ("EPA"), the 

Texas Governor's Office, and the Texas Commission on Environmental Quality 

("TCEQ"), in writing, of the Sierra Club's intent to file suit for repeated past and 

ongoing violations of the two emission limits at issue in this litigation. The Court 

previously ruled that Sierra Club gave adequate pre-suit notice to the 

Defendants. See Doc. 75 at 12-16. 

II. Sierra Club's Claim 

8. Big Brown Plant is required to operate under a CAA permitting process 

that limits the amount of emissions the plant may legally emit into the air. That 

permitting program is administered and enforced by the TCEQ. 

9. One indicator of the potential presence of air emissions is opacity. Texas 

rules define opacity as the "degree to which an emission of air contaminants 

obstruct the transmission of light expressed as a percentage of light obstructed 

as measured by an optical instrument or trained observer." 30 TEX. ADMIN. CODE 

§ 101.1 (72). In other words, the higher the opacity, the less light that passes 

through a plume of emissions. 

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10. Opacity is measured at Big Brown Plant using a device known as a 

"Continuous Opacity Monitoring System" ("COMS"), one of which is located in 

each of the two exhaust stacks at the plant. The COMS operate continuously 

and record opacity levels in six-minute averages. 

11. Under the Texas CAA State Implementation Plan ("SIP"), power plant 

opacity "shall not exceed 30 percent averaged over a six-minute period." 30 TEX. 

ADMIN. CODE § 111.111 {a)(1 )(A). 

12. SIP limits are federal CAA limits that can be enforced by the state, EPA, or 

citizens. 42 U.S.C. §§ 7413 & 7604; 40 C.F.R § 52.23. 

13. The Texas SIP contains affirmative defenses for opacity readings that 

exceed the 30 percent level. See 30 TEX. ADMIN. CODE § 101.222(d) & (e). One 

of the defenses applies to "[e]xcess opacity events due to an upset," id. at § 

101.222(d), and another applies to "unplanned maintenance, startup, or 

shutdown," also known as "MSS," id. at§ 101.222(e). 

14. To qualify for the defenses, the operator must prove to the TCEQ that ten 

demonstration criteria are met. Id. In general, the criteria require that the opacity 

was properly documented and reported to TCEQ; that the opacity was the result 

of an unavoidable breakdown of equipment or a process beyond the control of 

the operator; that the opacity event was not caused by inadequate design, 

operation, or maintenance; that if the opacity event was caused by a bypass of 

control equipment, the bypass was unavoidable to prevent loss of life, personal 

injury, or severe property damage; that the emissions control equipment was 

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Case 6:12-cv-00108-WSS Document 273 Filed 03/28/14 Page 5 of 55

operated in a manner consistent with good practices so as to minimize opacity at 

the plant; and that the opacity event did not cause or contribute to "a condition of 

air pollution." Id. If all criteria are met, the defense applies to "all claims in 

enforcement actions brought for these activities, other than claims for 

administrative technical orders and actions for injunctive relief." Id. 

15. EPA approved these two affirmative defenses for opacity into the Texas 

SIP, and the Fifth Circuit has affirmed that approval notwithstanding the 

objections of Sierra Club. See Luminant Generation Co. LLC v. U.S. E.P.A., 714 

F.3d 841 (5th Cir. 2013); 75 Fed. Reg. 68,989, 68,999 (Nov. 10, 2010) ("Our 

approval of sections 101.222(b), (c), (d), and (e) into the Texas SIP provides a 

source the option to assert an affirmative defense for certain periods of excess 

emissions in an enforcement action brought against it by EPA or a. citizen in 

federal court"). The EPA explained that these affirmative defenses exist 

because "despite good practices, [sources may] be unable to meet emission 

limitations during periods of startup and shutdown and, that despite good 

operating practices, sources may suffer a malfunction due to events beyond 

the control of the owner or operator." 75 Fed. Reg. at 68,992. 

16. The present case involves the MSS and upset opacity events at Big Brown 

Plant that were self-reported by Luminant to the TCEQ during the period July 

2007 to December 2010. Sierra Club claims that Big Brown Plant violated the 30 

percent opacity limit on 6,520 occasions during this time period, and continues to 

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do so, when the plant was in MSS or upset mode.2 Sierra Club derives this 

number from Luminant's reports to the TCEQ, which describe the events and 

report the plant's COMS readings over 30 percent during this period. The 

number of violations during the period at issue assumes that one exceedance 

per hour was allowed for the cleaning of the firebox (i.e., the boiler), the building 

of a new fire (i.e., a "startup") or other specified exemption contained in 30 TEX. 

ADMIN. CODE § 111.111 (a)(1 )(E). Sierra Club also alleges that Defendants 

continue to violate the limit. 

17. It was revealed at trial that these readings comprise less than 1.5 percent 

of the plant's total operating time during this period. In other words, during more 

than 98.5 percent of the time, the plant is operating with opacity below 30 

percent, usually around 10 percent. Notwithstanding the relatively short 

timeframe at issue, Sierra Club still notes that the amount of emissions released 

during these opacity exceedances comprise of 15 to 20 percent of Big Brown 

Plant's total annual emissions. 

Ill. TCEQ's Investigations and Findings 

18. It is not a matter of dispute that Luminant reported these MSS and upset 

events to TCEQ and that they constitute a small fraction of the plant's operation. 

2 Sierra Club's complaint included another claim (Count 11) that alleged the plant 

violated a limit on particulate matter ("PM") emissions. That claim was dismissed on 

summary judgment for the reasons stated in the Court's Order entered on February 10, 

2014. Doc. 240. 

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Indeed, following the submission of the reports, the TCEQ conducted an 

investigation of each event to determine if the affirmative defense demonstration 

criteria discussed above were, in fact, met. 

19. In all instances, the TCEQ determined that the applicable criteria in 30 

Texas Administrative Code§ 101.222(d) & (e) were satisfied and that no violation 

occurred. TCEQ documented its findings in publicly-available investigation 

reports. [Exhibit D-3]. Defendants provided certified copies of TCEQ's 

investigation reports documenting the events at issue in this case and the 

TCEQ's evaluation and regulatory determination. [Exhibit D-3.1 - D-3.184]. 

20. Sierra Club does not dispute that the TCEQ issued investigative reports for 

each of the opacity events at issue in this case after determining that none of the 

events was a violation. However, Sierra Club disagrees with TCEQ's findings 

and conclusions applying the criteria in § 101.222(d) & (e). 

21. Sierra Club also does not dispute that these investigative determinations 

fall squarely within the TCEQ's sphere of expertise, which requires the use, 

evaluation, and assessment of scientific, technical, and operational data, and 

draws on the TCEQ's technical expertise, enforcement experience, and technical 

competence. Indeed, Sierra Club's expert witness, Dr. Ranajit Sahu, 

acknowledged as much during his testimony. Nonetheless, Sierra Club's witness 

Neil Carman-Sierra Club's clean air program director for the State of Texastestified that Sierra Club sought to have the Court disregard the TCEQ's 

investigations and findings and instead rely on Sierra Club's investigation. 

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IV. Big Brown Plant's Emissions Control Equipment 

22. Mr. Freeman Jarrell has been employed by Luminant for 47 years. He is 

currently the Senior Director for Regional Support for Luminant's Southern 

Region, which includes the Big Brown Plant. Mr. Jarrell was the plant manager 

at Big Brown Plant from 2001 to 2012. During that time period, Mr. Jarrell was 

responsible for the daily operation and maintenance of Big Brown. 

23. Mr. Jarrell testified that the Big Brown Plant controls opacity from the 

stacks at the plant by collecting fly ash in the plant's gas stream using two pieces 

of equipment-an electrostatic precipitator ("ESP") and a Compact Hybrid 

Particulate Collector ("COHPAC") baghouse. 

24. Each of Big Brown's two generating units has its own ESP and baghouse. 

The ESPs were part of the original construction of the units in the early 1970s. 

Both units were retrofitted in the mid-1990s to add pulse-jet baghouses to the 

end of their emissions-control trains. 

25. The plant's current CAA operating permits-Permit No. 065 [Exhibit D-8], 

which was renewed by TCEQ on January 15, 2014, and Permit No. 56445 

[Exhibit D-5], which was revised in December 2011-specify this emissions 

control equipment and how it must be operated during MSS events. 3 

3 Permit No. 065 is Big Brown Plant's Title V permit. Title V of the Clean Air Act, 

42 U.S.C. §§ 7661-7661f, establishes an operating permit program for major sources of 

air emissions. A Title V permit compiles all the various applicable requirements for a 

facility into a single federally-enforceable air permit. See United States v. Cemex, Inc., 

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26. Big Brown's ESPs and the baghouses operate in series. In other words, 

as combustion of coal in each of the two boilers produces flue gas, the flue gas 

exits the boiler and then is routed sequentially through the ESP first and the 

baghouse second before being sent through the stack. 

27. An ESP is a device with three primary functions: 1) electrostatic charging 

of the fly ash particles in the gas stream from the boiler; 2) collection of the 

charged ash particles, and 3) removal of the ash from the ESP. Fly ash in the 

gas stream entering the ESPs is first energized with a charge by electricallycharged wires and then attracted to a collecting plate of the opposite charge. 

The plates are "rapped," or shaken, in sequence, and the fly ash falls into 

collection hoppers and is removed from the plant by a pressurized ash collection 

system. 

28. Once cleaned by the ESP, the flue gas enters the bag house for final 

treatment. The baghouse removes fly a~h that may remain in the flue gas 

stream following the ESP. The ash is collected on fabric bags inside the 

baghouse. The bags are cleaned automatically and in sequence by a pulse-jet of 

air, and the fly ash is collected and removed. Fly ash removed by the ESPs and 

864 F. Supp. 2d 1040, 1045 (D. Colo. 2012); 42 U.S.C. §§ 7661c(a), (b). The permit is 

crucial to the implementation of the Act: it contains, in a single, comprehensive set of 

documents, all CAA requirements relevant to the particular emission source. Com. of 

Va. v. Browner, 80 F .3d 869, 873 (4th Cir. 1996). A Title V permit has been described 

as a "source-specific bible for Clean Air Act compliance." Id. Big Brown's Title V permit, 

like all of its air permits, is issued by the TCEQ. 

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baghouses is collected in hoppers and pneumatically conveyed to storage silos 

prior to loading for recycling, disposal, or sale. 

29. As explained by Mr. Jarrell, the ESPs and baghouses must be disengaged 

during periods of MSS and upset in order to ensure their effective operation 

during the 98.5 percent of the time that the plant is operating in normal mode to 

generate electricity. This process occurs because, in order to operate safely and 

ensure their reliable operation during the unit's normal full-load operation, Big 

Brown's ESPs and baghouses must operate within certain temperature 

parameters during startup and shutdown that temporarily decrease their 

collection efficiency and lead to brief opacity events. 

30. The need to periodically engage in the processes of shutting down and 

starting up a coal-fueled electric generating unit is an unavoidable feature of 

operating a coal-fueled electric generating unit that is beyond the control of the 

unit's owner or operator. All coal-fueled power plants must engage in the 

process of unit shutdown and unit startup, as Big Brown Plant does, for unit 

maintenance and repair. Sierra Club also acknowledges that shutdowns at coalfired power plants are an unavoidable occurrence of plant operation.4 

31. Startup and shutdown are the most critical phases during the operation of 

a coal-fueled electric generating unit such as Big Brown. Both startup and 

4 During the critique of one of Defendants' expert report at trial, expert for Sierra 

Club, Mr. Mark Ewen, noted that a power plant is unable to continuously operate as 

shutdowns for maintenance and other activities are necessary and unavoidable. 

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shutdown require precise coordination of a multitude of working parts and 

conditions in order to assure safe and reliable operation of the unit. Plant 

personnel follow detailed written procedures when starting up or shutting down 

the units. [Exhibit D-11.6, D-11. 7]. It is because the emissions control 

equipment is disengaged during periods of MSS and upset that opacity readings 

at the stack rise above 30 percent for brief periods of time. 

32. As explained by Mr. Jarrell, the Big Brown Plant operated during this time 

period, and continues to operate today, according to its Standard. Operating 

Procedures. [Exhibit D-11.6, D-11. 7]. These procedures are designed to 

minimize opacity by placing the ESP and baghouse into service as soon as 

practical during startups, and removing these pieces of equipment from service 

as late as possible during shutdowns, within certain temperature parameters. 

Big Brown's operating procedures prohibit the ESPs and baghouses from being 

engaged before, and require that the ESPs and baghouses be disengaged by the 

time, the ESP inlet temperature reaches 250 degrees Fahrenheit. Id. 

33. If Big Brown engaged the ESPs and baghouses earlier in the startup 

process, or left them engaged longer during the shutdown period, Mr. Jarrell 

testified that it would cause a condition known as plugging or caking due to the 

additional moisture in the flue gas at lower temperatures. The moisture and ash 

would set-up like concrete on the ESP internals, which would impact the ESP's 

collection efficiency critique criticism and cause higher opacity during normal 

operations and in the long-term. This type of caking would occur on the bags in 

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the baghouses as well. Further, early energizing, or late de-energizing, of the 

ESP could lead to more serious issues, such as an explosion causing property 

damage or personal injury, due to sparking and carry-over un-combusted fuel. 

34. Big Brown's current Permit No. 56445 requires that the plant operate 

according to its Standard Operating Procedures, which have not changed over 

this time period. Mr. Jarrell and Mr. Eric Chavers, 5 the Chemical and 

Environmental Supervisor at the plant, both testified that Big Brown complies with 

its standard operating procedures and the terms of the permit when starting up 

and shutting down. 

35. Big Brown Plant's startup and shutdown procedures are consistent with 

guidance from EPA. As EPA explains in its ESP training manual, "[i]f an ESP is 

used on a coal-fired boiler, the ESP should not be started until coal firing can be 

verified. . . . [and] [a]fter gas at temperature of 200°F has entered ESP for 2 

hours[.]" U.S. Environmental Protection Agency, Air Pollution Training Institute, 

SI 412B, Lesson 6: ESP Operation and Maintenance, at 6-5 & Table 6-2 [Exhibit 

D-11.3]. See also U.S. Environmental Protection Agency, Electrostatic 

Precipitator Malfunctions in the Electric Utility Industry, EPA-600/2-77-006, at 4-

19 to -20 (Jan. 1977) ("About 8 hours is required to bring a unit on line, i.e. when 

5 Mr. Chavers has worked for Luminant for nearly 9 years. His responsibilities 

include monitoring opacity, maintaining the plant's COMS in good working order, 

collecting the data, and making reports to TCEQ on opacity events in coordination with 

Luminant's Environmental Services department. 

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the steam pressure reaches the design range, which is about 107-135°C (225-

2750F) for cold-side ESP's. The precipitator is turned on manually, usually 1 

hour after the unit is firing coal. . . . Times required to bring the boiler to proper 

operating temperature vary, but the described procedure is representative of that 

for a coal-fired boiler.") [Exhibit D-11.2]. 

36. If the minimum-temperature restriction is not observed, EPA has 

explained, "sticky particulate and sparking" in the ESP can "lead to unburned 

carbon, hydrocarbons, and [carbon monoxide] in the ESP."6 The presence of 

sticky particulate, unburned carbon, hydrocarbon, and carbon monoxide in the 

ESP is problematic for two reasons. First, the sticky particulate, unburned 

carbon, hydrocarbon, and carbon monoxide "may be set afire or result in an 

explosion that endangers personnel."7 EPA's regulatory guidance on ESPs 

instructs that "[p ]ersonnel safety should be the foremost consideration in any 

startup procedure." 8 Second, consistent with Mr. Jarrell's testimony, EPA 

guidance states that the collection of sticky particulate, unburned carbon, 

6 U.S. Environmental Protection Agency, Operation and Maintenance Manual for 

Electrostatic Precipitators, EPA/625/1-85/017, at 5-3 through 5-4 (Sept. 1985) [Exhibit 

D-11.1]. 

7 Id. 

8 Id. at 5-1. 

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hydrocarbon, and carbon monoxide in the ESP "could also permanently destroy 

the ES P's performance potential. "

9 

37. Mr. Jarrell further testified as to the maintenance and upkeep of Big Brown 

Plant's ESPs and baghouses. The plant addresses necessary maintenance 

through the use of on-site plant staff as well as third-party contractors who are 

experienced in ESP and baghouse inspection and maintenance. The plant 

regularly commissions front-to-back inspections and repairs of the ESPs and 

baghouses by specialized contractors. [Exhibit D-42]. These third-parties 

inspect the ESPs and baghouses and recommend and conduct the necessary 

repairs and maintenance. During the time period at issue, many maintenance 

items were addressed during a longer maintenance outage, which requires 

scheduling and coordination with ERCOT, but some items that needed more 

immediate attention were addressed during shorter and/or unscheduled outages. 

38. Sierra Club's expert witness, Dr. Ranajit Sahu, an engineer by training, 

testified about his opinions of Big Brown Plant's emissions control equipment. 

Dr. Sahu testified that it was his opinion that these opacity events could have 

been avoided because it is technically feasible for the ESPs and baghouses at 

Big Brown to be engaged earlier in the startup process, and remain engaged 

longer in the shutdown process. 

9 Id. at 5-3 through 5-4. 

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39. Dr. Sahu noted that Big Brown's boilers were designed to burn 100 percent 

locally-mined Texas lignite. However, since roughly the mid-1990's, the plant has 

been blending lignite with coal brought in from the Powder River Basin ("PRB"), 

an area in the western United States. Dr. Sahu testified that while PRB coal has 

certain benefits in terms of sulfur dioxide emissions, its use at the Big Brown 

Plant exacerbates opacity levels caused by the undersized ESPs. 

40. Dr. Sahu testified that the ESPs installed at Big Brown utilize an 

undersized Specific Collection Area ("SCA"), or collection plate, which does not 

sufficiently capture the particulate matter from the lignite coal that the plant was 

originally designed to burn. Given the fact that the plant is now burning a mixture 

of Texas lignite and PRB coal, Dr. Sahu explained that a larger SCA is required 

to properly capture the smaller-sized PM. 

41. Dr. Sahu also stated that the ESPs and baghouses at Big Brown could 

have been replaced with new larger baghouses that, in his opinion, would have 

reduced the number of opacity events. Dr. Sahu further criticized the 

maintenance and design of the ESPs and baghouses, relying in large part on 

summaries of reports of third-party contractors that Luminant hired to inspect the 

equipment. He testified that the plant should have spent an additional $5 million 

in maintenance each year. 

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V. Luminant's Reporting of the Opacity Events and TCEQ's 

Investigations 

42. Ms. Shawn Glacken, Luminant's Senior Vice President for Environmental 

Services during this time period, testified regarding the company's reporting of 

the opacity events to the TCEQ. Luminant is required to monitor and measure 

opacity levels at Big Brown and report those levels to TCEQ, and Ms. Glacken's 

department handled that task in coordination with plant staff. 

43. Luminant submits two different types of reports to TCEQ related to opacity: 

1) reports through the STEERS reporting system and 2) quarterly reports. 

STEERS stands for "State of Texas Environmental Electronic Reporting System" 

and is an online portal through which facility operators report certain opacity 

events to TCEQ. Luminant submits a report to TCEQ through its STEERS 

reporting system when opacity at Big Brown is, or is expected to be, 15 percent 

over the relevant opacity reporting threshold, which in this case is 30 percent. 

Luminant's STEERS Reports detail the facts surrounding each reported opacity 

event, the cause, duration, corrective action taken, and other information. 

Luminant also submits quarterly reports to TCEQ in a collective report called an 

"Excess Emission Report, Continuous Emission Monitoring System (CEMS) 

Downtime Report, and Deviation Report, and Title V Deviation Report." Sierra 

Club relies exclusively on these publicly-filed reports to make its allegations that 

there were violations. [Exhibit D-33.1 - D-33.16; D-34.1 - D-34.204]. 

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44. Ms. Glacken presented a summary of voluminous documents regarding 

the opacity events at issue, pursuant to Federal Rule of Evidence 1006, for each 

unit at Big Brown Plant. [Exhibit D-1, D-2]. The summaries provide the date, 

time, nature, intensity, frequency, duration, cause, and contemporaneous 

documentation and reporting made by Luminant with regard to all of the opacity 

events at issue. 

45. Sierra Club did not object to the summaries, and the Court accepts them 

as correct descriptions of the events at issue. 

46. As presented in the summaries, and as further evidenced by certified 

copies of the reports issued by the TCEQ, for each and every one of the reported 

opacity events at Big Brown for the period July 2007 through December 2010, 

the TCEQ made an investigation and issued a written determination as to 

whether the affirmative defense criteria in 30 Texas Administrative Code § 

101.222 were satisfied. [Exhibit D-3]. In each and every instance, the TCEQ 

found that the criteria had been met and no violation of the opacity limitation had 

occurred. [Exhibit D-3]. 

VI. Air Quality and Lack of Harm to Sierra Club's Members 

47. Dr. Lucy Fraiser, a Ph.D. toxicologist, testified on behalf of Defendants 

regarding any harm to public health or welfare as a result of the opacity events 

and, specifically, whether they caused or contributed to "a condition of air 

pollution," which is criteria number ten under the affirmative defenses. Sierra 

Club offered the testimony of Dr. Andrew Gray, an air modeler, and rebuttal 

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testimony of Dr. George Thurston, a Professor of Environmental Medicine at New 

York University. 

48. All of these individuals agreed that, based on air quality modeling 

conducted by Mr. Robert Paine and relied on by Dr. Fraiser, the reported opacity 

events at Big Brown for the period July 2007 through December 2010 did not 

result in particulate matter ("PM") concentrations sufficient to cause or contribute 

to a violation of the primary or secondary National Ambient Air Quality Standards 

("NAAQS") for PM. 

49. As explained by Dr. Fraiser, EPA sets the NAAQS at a level adequate to 

protect human health and the environment with an adequate margin of safety. 

There are three different NAAQS for PM. For PM10 (which refers to particles that 

are less than or equal to ten microns in size), there is a 24-hour average 

standard of 150 micrograms I cubic meter (μg/m3

). For PM2.5 (which refers to 

particles that are less than or equal to 2.5 microns in size), there was a 24-hour 

average standard of 35 μg/m3 and an annual average standard of 15 μg/m3 

(which was later revised by EPA to 12 μg/m3 after the events at issue in this 

lawsuit). 

50. Dr. Fraiser testified that, in her opinion, the PM NAAQS levels set by EPA 

were, as intended, protective of human health and environment with an adequate 

margin of safety and this would include protection of sensitive populations such 

as children, the elderly, and people with respiratory problems. 

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51. Dr. Thurston and Dr. Gray testified that, in their opinion, any amount of PM 

in the air can cause the risk of adverse health effects, even if below the NAAQS. 

In their opinion, there is no safe level of PM in the air even from common human 

activities such as cooking. Neither Dr. Thurston nor Dr. Gray, however, 

attempted to analyze or apply criteria number ten under the affirmative defenses. 

Both admitted that they were not familiar with criteria number ten or the Texas 

definition of "air pollution." 

52. Dr. Fraiser, on the other hand, specifically analyzed criteria number ten 

under the affirmative defenses. She focused on the Texas definition of "air 

pollution" and concluded the events at issue did not cause or contribute to a 

condition of air pollution. She determined that the events at issue did not 

adversely affect human health or welfare, animal life, vegetation, or property. 

And she further concluded that the events did not interfere with the normal use or 

enjoyment of animal life, vegetation, or property. 

53. In addition to relying on EPA's NAAQS for PM and the lack of any 

violations of those NAAQS, Dr. Fraiser further examined other factors such as 

the surrounding land use, the time of day of the events, the event duration, and 

the percentage of total time of the opacity events. She also determined that, 

based on her investigation, there were no complaints from members of the 

public, including from Barbara Lawrence, to TCEQ regarding any of the events at 

issue. She further relied on the deposition testimony of Barbara Lawrence, in 

which Ms. Lawrence testified that she had no physical injury or harm as a result 

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of Big Brown's emissions. Based on all of these factors, in addition to the air 

modeling that showed no violation of the NAAQS, Dr. Fraiser concluded that 

none of the events at issue in the lawsuit caused or contributed to a condition of 

air pollution, as defined by Texas law. 

VII. The Permitting of Big Brown Plant's MSS Emissions 

54. As testified to by Ms. Glacken and Mr. Chavers, in December 2011, TCEQ 

approved a revision to Big Brown's Air Permit No. 56445. [Exhibit D-5]. The 

revised Permit No. 56445, which remains in effect, requires that Big Brown's 

ESPs and baghouses only be operated during certain times and under certain 

operating conditions. The permit states: "Opacity greater than 20 percent from 

[the plant's stacks] is authorized when the permit holder complies with the MSS 

duration limitations and other applicable work practices identified below." Id. 

55. Among those required work practices, Permit No. 56445 states that Big 

Brown "will comply with the boiler and ESP manufacturer's operating procedures 

or the permittee's written Standard Operating Procedures manual during planned 

MSS, and will operate in a manner consistent with those procedures to minimize 

opacity by placing the ESP and baghouse ·into service as soon as practical 

during planned startups or removing the ESP and baghouse from service as late 

as possible during planned shutdowns, once the baghouse inlet gas temperature 

is between 200 and 300 degrees F, but not longer than the durations identified in 

Special Condition No. 8(A)." Id. 

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56. The permit further limits the duration of MSS events. It provides that a 

"planned startup" "shall not exceed 24 hours," except that the plant may have a 

combined 600 hours on an annual calendar basis during which "[t]he total 

amount of incremental time the extended startups exceed 24 hours. "

10 Id. It 

further provides that a "planned shutdown" "shall not exceed 24 hours," except 

that the plant may have a combined 600 hours on an annual calendar basis 

during which "[t]he total amount of incremental time the extended shutdowns 

exceed 24 hours."11 Id. Permit No. 56445 further provides that "planned online 

and offline maintenance activities" listed in the permit "are authorized for no more 

I 

than 535 hours in a calendar year per unit." Id. 

57. In the Source Review and Technical Analysis it conducted in connection 

with the issuance of amended Permit No. 56445 [Exhibit D-6], TCEQ determined 

that emissions during the permitted MSS events, which are identical to the MSS 

events at issue in this case except that they occurred during a prior time period, 

would be de minimis and "would not cause an exceedance of the NAAQS" and 

that "no adverse impacts to public health and the environment are anticipated as 

10 The permit defines a "planned startup" "as the period that begins when the 

induced draft booster fans start operation and ends when the utility boiler reaches 

stable load and ESP/baghouse operation has been fully optimized." 

11 The permit defines a "planned shutdown" "as the period that begins when the 

electrostatic precipitator is partially or completely de-energized due to reaching its 

minimum operating temperature and ends when a temperature has been reached that 

allows personnel to enter the structure and conduct maintenance activities." 

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a result of quantifying and permitting emission rates for" the permitted MSS 

events. Id. The TCEQ further determined that the work practices required by the 

permit were "Best Available Control Technology" or "BACT." 

58. Ms. Glacken testified that, as part of this permitting process, TCEQ 

reviewed the plant's overall environmental compliance and assigned Big Brown a 

"High" performance rating, which is the best possible rating. [Exhibit D-6]. 

59. Ms. Glacken testified that, in accordance with 30 Texas Administrative 

Code § 122.217, Luminant submitted the requirements of revised Permit No. 

56445 to the TCEQ as a revision to the plant's Title V federal operating permit on 

December 12, 2011. [Exhibit D-7]. The submission was made prior to final 

issuance of the revised Permit No. 56445 (issued on December 16, 2011 ), as 

instructed by TCEQ, so there would be no gap in the regulatory requirements 

applicable to the plant. Luminant's application identified the revised 

requirements of Permit No. 56445 as provisional terms and conditions of the 

plant's Title V permit and stated "Luminant will comply with the amended 

requirements of Permit No. 56445 as provisional terms and conditions of the 

Federal Operating Permit." Id. 

60. Ms. Eva Hernandez, a senior organizing manager for Sierra Club, testified 

at trial by deposition that the plant's permits, including Permit No. 56445, are 

binding requirements on the operation of the plant. 

61. Ms. Glacken and Mr. Chavers testified about the plant's implementation of 

this permit revision. The plant did not change the way it operates the ESPs and 

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baghouses, but instead changed its method of tracking MSS activity, as required 

by the permit, to ensure compliance with the new duration limitations in the 

permit. As to be expected, the number of reportable events has decreased to a 

negligible amount because the permit revision now requires tracking of MSS 

activity in relation to the new duration limitations in lieu of reporting all opacity 

exceedances during MSS. 

62. Ms. Glacken testified that the amendment to Permit No. 56445 authorizes 

and regulates the kinds of MSS activities at issue in this case. Ms. Glacken 

testified that if the MSS activities that Sierra Club challenges (which occurred 

between July 2007 and December 2010) had occurred after the issuance of 

amended Permit No. 56445, or if Permit No. 56445 had been amended before 

July 2007, then all of those MSS activities would have been covered, authorized, 

and regulated by amended Permit No. 56445. 

63. In 2012 and 2013, Big Brown's two units complied with the new MSS hours 

restrictions, and in fact used only a small fraction of the allotted hours. [Exhibit 

D-9, D-10]. As confirmed by Mr. Chavers' testimony, the plant's data showed 

that the plant was engaging the ESPs and baghouses in accordance with the 

temperature ranges in the permit. To the extent the plant operates outside the 

terms of the permit, those events would still be reported to the TCEQ as before 

and reviewed by TCEQ for compliance with the demonstration criteria. 

64. Ms. Glacken and Ms. Hernandez testified about the regulatory and judicial 

proceedings following the issuance of the revisions to Permit No. 56445 in 

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December 2011. Upon issuance, the TCEQ announced that any person who 

sought to challenge the permit had two avenues for doing so: 1) a motion to 

overturn with the Chief Clerk of TCEQ; and 2) judicial review in Travis County 

district court. [Exhibit D-5]. Sierra Club pursued both avenues of relief and 

requested that the permit be overturned. Sierra Club filed its motion to overturn 

on January 9, 2012 [Exhibit D-13], and filed a petition for judicial review on 

January 17, 2012 [Exhibit D-14]. The TCEQ denied the motion to overturn on 

February 10, 2012. And, on July 3, 2012, Sierra Club voluntarily non-suited its 

request for judicial review of the permit with prejudice. [Exhibit D-15]. 

CONCLUSIONS OF LAW 

I. Statutory and Regulatory Background 

1. The Clean Air Act ("CAA") creates "a comprehensive national program that 

ma[kes] the States and the Federal Government partners in the struggle against 

air pollution." Gen. Motors Corp. v. United States, 496 U.S. 530, 532 (1990). 

Under the Act, "air pollution prevention ... and air pollution control at its source 

is the primary responsibility of States and local governments." 42 U.S.C. § 

7401(a)(3). See also Luminant Generation Co. v. EPA, 675 F.3d 917, 932 (5th 

Cir. 2012) ("[The Clean Air Act's] cooperative federalism regime D affords 

sweeping discretion to the states[.]"). Texas exercises its primary authority in this 

regard through the Texas Commission on Environmental Quality ("TCEQ"), which 

promulgates and enforces the Texas CAA State Implementation Plan ("SIP"). 

See 40 C.F.R. § 52.2270 (Texas SIP). 

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2. As the Fifth Circuit has recognized, the Texas SIP has always 

acknowledged and accounted for the fact that even well-designed, well-operated, 

and well-maintained ESPs cannot be safely and effectively operated during 

periods of MSS. See Luminant Generation Co., 714 F.3d at 847 (5th Cir. 2013) 

("Since the creation of its first SIP in 1972, Texas has provided for special 

treatment of SSM activity."). 

3. The affirmative defenses come into play only when the Big Brown Plant's 

boiler units or associated pollution control equipment are either being shut down, 

started up, undergoing maintenance, or experiencing a malfunction (or "upset"). 

As previously determined by the Court (Doc. 162), the affirmative defenses are 

applicable in this case for two reasons. First, TCEQ renewed Big Brown's Title V 

Permit No 065 in 2008. As part of that permitting process, TCEQ revised Permit 

No. 065 and incorporated and applied to the plant all of the affirmative defenses 

for startup, shutdown, maintenance, and upset in 30 Texas Administrative Code 

§§ 101.222(a)-(h). [Exhibit D-4]. TCEQ issued public notice of the 2008 

revisions of Permit No. 065 and provided a 30-day opportunity for the public to 

comment. EPA did not object to the 2008 revised permit, and Sierra Club did not 

submit comments to TCEQ or petition EPA to object to the permit. The Court 

lacks jurisdiction to hear claims collaterally attacking the contents of the Title V 

permit, which includes all defenses in§ 101.222. Doc. 162 at 15; 42 U.S.C. § 

7607(b)(2). Second, even if they had not been expressly incorporated into the 

plant's permits, §§ 101.222(b)-(e) were approved by EPA into the Texas SIP 

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effective January 1 O, 2011, and the Court will apply the federal law that is 

currently in effect for the reasons stated in its prior Order. Doc. 162 at 16-19. 

4. Thus, as Sierra Club's counsel stated in closing arguments, for purposes 

of this case, there is no "SIP Gap"-i.e., no period during which Defendants 

cannot avail themselves of the affirmative defenses. 

II. Defendants Have Met Their Burden of Proving the Affirmative 

Defense Criteria for All Opacity Events 

5. The question for the Court, then, is whether the affirmative defense criteria 

are met for the opacity events that occurred at Big Brown Plant from July 2007 to 

December 2010. For the reasons discussed below, the Court finds that the 

defense criteria are met in all instances. 

A. TCEQ's Findings Are Entitled to Deference 

6. First, Luminant demonstrated to the TCEQ, and the TCEQ found, that all of 

the events at issue meet the affirmative defense criteria in 30 Texas 

Administrative Code § 101.222. Sierra Club argues that the Court should reach 

a different conclusion based on the opinion testimony of Dr. Sahu, Dr. Gray, and 

Dr. Thurston. 

7. While there may certainly be circumstances where a court should step in 

despite contrary findings of a state agency, the Court finds no such 

circumstances are present here. The Court will not second-guess the TCEQ's 

written, contemporaneous determinations, given the complete lack of evidence 

offered by Sierra Club regarding any error or deficiency in those determinations. 
Case 6:12-cv-00108-WSS Document 273 Filed 03/28/14 Page 27 of 55

Courts should provide proper deference to an administrative agency's legal and 

factual determinations. An agency's interpretation of, or finding of facts under, a 

regulation it is charged with enforcing is entitled to deference because 

"[a]dministrative agencies are simply better suited than courts to engage in such 

a process." Ford Motor Credit Co. v. Mi/ho/Jin, 444 U.S. 555, 569 (1980); see also 

3 Charles H. Koch, Jr., Administrative Law and Practice§ 12.24[3] (2d ed. 1997) 

("It is readily recognized that many conclusions reached by the agency are the 

result of a technical competence that even the most arrogant nonexpert could not 

hope to replicate."); United States v. BP Products North America Inc., 610 

F.Supp.2d 655, 709 (S.D. Tex. 2009). This deference extends to an agency's 

application of its own regulations to a set of facts. Coeur Alaska, Inc., v. Se. 

Alaska Conservation Council, 557 U.S. 261, 283 (2009) ("[W]e do find that 

agency interpretation and agency application of the regulations are instructive 

and to the point.") (citing Auer v. Robbins, 519 U.S. 452, 461 (1997)) (emphasis 

added); see also United States v. Alcoa, Inc., No 1 :03-cv-222, 2007 WL 

5272187, at *7 (W.D. Tex. Mar. 14, 2007), aff'd, 533 F.3d 278 (5th Cir. 2008) ("a 

district court reviews the actions of a state agency administering federal 

programs as it would review the actions of a federal agency, including deference 

to reasoned administrative action" (citing lndep. Nursing Home v. Simmons, 732 

F. Supp. 684, 688 (D. Miss. 1990)). 

8. Courts are at their most deferential in reviewing the agency's findings 

where an agency's particular technical expertise is involved. Texas v. EPA, 690 

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F.3d 670, 677 (5th Cir. 2012); Medina County Environmental Action Ass'n v. 

Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 2010); Center for Marine 

Conservation v. Brown, 917 F. Supp. 1128, 1143 (S.D. Tex. 1996) (When an 

agency is acting within its "own sphere of expertise," the Court's review "must be 

very deferential."). 

9. Here, the TCEQ is the regulatory agency that promulgated the affirmative 

defenses and is charged by federal law with the primary responsibility of 

enforcing the CAA in the State. As Dr. Sahu testified, the TCEQ possesses the 

technical expertise that is required to apply the criteria. And the criteria 

themselves contemplate a demonstration to, and finding by, the TCEQ. The 

Court will defer to TCEQ's application of 30 Texas Administrative Code § 

101.222 to the opacity events at issue here, especially given the lack of evidence 

offered by Sierra Club regarding any error or deficiency in those determinations. 

10. In the case at hand, the Court finds no circumstances that would warrant 

reaching a different conclusion than TCEQ reached. "[T]here is a strong public 

policy against a federal court's interference in state agency determinations 

absent some finding that the agency has violated federal law." Alcoa, 2007 WL 

5272187, at *7. Here, the strong public policies of comity for State 

determinations and respect for administrative agency expertise weigh in favor of 

deferring to TCEQ's determinations in this case. TCEQ's determinations are 

further supported by the weight of the evidence adduced at trial and documented 

in contemporaneous reports by the agency. The Sierra Club has provided no 

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evidence of any factual, legal, or procedural errors whatsoever in TCEQ's 

findings, and the Court finds none. 

11. Further, not only do TCEQ's findings not violate federal law, they are fully 

consistent with EPA's guidance on MSS events and proper operation of ESPs. 

EPA has repeatedly recognized that ESPs, like those at Big Brown Plant, must 

be disengaged during the startup and shutdown process. 

12. In fact, in approving the affirmative defenses at issue in this case, EPA 

explained that "[w]e can understand that there may be excess opacity emissions 

in certain situations from operation of power generators equipped with ESPs."12 

EPA also expressed the view "that imposition of a penalty for sudden and 

unavoidable malfunctions, startups or shutdowns caused by circumstances 

entirely beyond the control of the owner or operator may not be appropriate."13 

TCEQ's findings with respect to the events at issue in this case are fully 

consistent with EPA's views and guidance. 

13. Because TCEQ determined that the affirmative defenses were met for all 

opacity events at issue, and the Court finds no error in those determinations, no 

penalty will be assessed for any of the events. 

12 75 Fed. Reg. 68,989, 68,996 (Nov. 10, 2010) (final approval). 

13 75 Fed. Reg. 26,892, 26,894 (May 13, 2010) (proposed approval) 

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B. Defendants Have Independently Proven All of the Affirmative 

Defense Criteria for All Opacity Events by a Preponderance of 

the Evidence 

14. Second, even if the TCEQ had not made contemporaneous regulatory 

findings, the Court finds as a matter of fact that Defendants have met their 

burden of proving by a preponderance of the evidence that all ten of the 

affirmative defense criteria are met for all of the events at issue. 

15. The Court credits the testimony of Mr. Jarrell, Mr. Chavers, and Ms. 

Glacken as to the criteria that relate to reporting and documentation of the 

opacity events contained in 30 Texas Administrative Code § 101.222{d){1), 

{d){8), {e){1), and {e){9). Each and every one of the events was documented by 

the plant in its logs and reported to the TCEQ in either a STEERS report or a 

quarterly report, or both. Sierra Club offers no evidence that criteria {d){1 ), {d){8), 

{e){1), and {e){9) were not met, and Sierra Club does not dispute the reporting 

procedures of the plant. As such, the Court finds those criteria are satisfied. 

16. The Court credits the testimony of Mr. Chavers that "all emissions 

monitoring systems were kept in operation if possible" as required by criteria 

{d){7) and {e){8). As the reports indicate, all of the events were recorded by the 

plant's COMS, which is maintained and calibrated by Mr. Chavers and his staff. 

Again, Sierra Club offers no evidence that criteria {d){7) and (e)(8) are not met, 

and the Court finds that those criteria are met. 

17. The Court credits the testimony of Mr. Jarrell as to criteria (d)(2), {d)(4), 

(e)(2), {e){5), and (e)(6), and finds those criteria are met. All of the events were 

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caused by a sudden, unavoidable breakdown of equipment or a process beyond 

the control of the operator. As Mr. Jarrell testified, and Dr. Sahu conceded, the 

vast majority of the opacity events were the result of starting up or shutting down 

one of the units and the process of engaging the plant's ESPs and baghouses in 

accordance with the Standard Operating Procedures, which require bypass 

during MSS and upsets. [Exhibit D-5]. This process is unavoidable and beyond 

the control of Luminant. The equipment that is permitted at the plant must be 

disengaged (or bypassed, to use the terminology of criteria (e)(5)) unless the 

temperature of the flue gas is above minimum operating temperatures. If the 

equipment is operated outside of these required ranges, it will result in caking or 

plugging, which will degrade the equipment's performance during normal 

operations, and further create the risk of explosion and harm to human life and 

property. [Exhibit D-11.6]. 14 

18. Dr. Sahu testified that it was technically feasible for the ESPs to be turned 

on earlier in the startup process and left on longer in the shutdown process. But 

Dr. Sahu offered no factual support or analysis to support this opinion, and the 

Court finds his testimony not to be credible or convincing on these points. 

Moreover, technical feasibility is not a consideration under the MSS affirmative 

defense criteria in § 101.222(e). Dr. Sahu's opinions are also contrary to the 

EPA guidance discussed above, and, indeed, contrary to his own prior opinions 

14 "The precipitator inlet temperature should be above 250° (gas from air heater. 

This should help to assure that the collecting plates in the precipitator do not 'coat up.m 

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submitted to EPA. In "Technical Comments" submitted to EPA on August 4, 

2011, Dr. Sahu stated: "During periods of startup, shutdown etc., when exhaust 

gas temperatures are low and other gas properties may not be optimum (i.e., its 

moisture content, etc.), it is quite common for ESPs to not be energized until 

proper operating conditions occur. . . . Based on discussions with various 

equipment manufacturers and review of operating manuals, there are often 

minimum temperature requirements for ESPs in order to avoid issues such as 

moisture condensation and potential damage[.]"15 Although at trial he cited one 

example of a plant where ESPs were being energized at the beginning of startup, 

he stated that the plant was deviating from the recommendations of the 

equipment manufacturer in doing so. 

19. As confirmed by Mr. Jarrell and Mr. Chavers, the ESPs and baghouses are 

operated in a manner that would avoid damage to and degradation of the 

equipment and avoid the risk of explosion and harm to human life. and property. 

As Mr. Jarrell and Mr. Chavers testified, the plant operates its equipment 

according to an established process that is consistent with its permit, EPA 

guidance, and manufacturer recommendations, and did so during the events at 

issue. For all these reasons, the Court finds that criteria (d)(2), (d)(4), (e)(2), 

(e)(5), and (e)(6) are satisfied. 

15 Dr. Ranajit Sahu, Technical Comments on Certain Aspects of EPA's Proposed 

EGU MACT Rule, at 3-4 & n.2, submitted with comments of Environmental Integrity 

Project, EPA Docket EPA-HQ-OAR-0044-0001 (Aug. 4, 2011) [Exhibit D-52]. 

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20. The Court credits the testimony of Mr. Jarrell as to criteria (d)(3) and (e)(3), 

which, although not identical, relate to the prevention of the opacity through 

planning and design, and finds that those criteria are met. As discussed above, 

the opacity events are an unavoidable aspect of operating the equipment at Big 

Brown in the manner in which it is designed and permitted to be operated. The 

ESPs and baghouses operate in series, and both must be disengaged during 

startup and shutdown. As Mr. Jarrell testified, the plant's current permits both 

specify that this is the equipment the plant is to operate and that it must be 

operated in this manner (i.e., disengaged until minimum temperatures are 

achieved). Dr. Sahu himself stated previously this is "common" practice. And Dr. 

Sahu pointed to no specific design flaws in the ESPs or baghouses at the plant 

that prevent them from being engaged during startup and shutdown. 

21. In the view of Dr. Sahu, the electrostatic precipitators used at Big Brown 

Plant are undersized for the amount of flue gases containing PM that they treat. 

Dr. Sahu testified that the baghouses at the plant were never designed to handle 

more than a small fraction of the particulate matter in the flue gases from the 

boilers, which results in the flue gases being bypassed when the ESPs are not 

energized. It is Dr. Sahu's opinion that the baghouses were never intended by 

the Defendants to control. opacity during startups or shutdowns, or during 

maintenance activities when the fans are still on causing emissions to exit the 

smokestack. Dr. Sahu continued noting that if the plant completely replaced the 

currently-permitted equipment with a baghouse-only arrangement, these opacity 

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events would not occur or would not occur as frequently. But this view, even if 

true, has no factual bearing on the affirmative defenses, given that Dr. Sahu 

himself testified that the permitting and installation of new equipment would take 

up to two years and the affirmative defense criteria analysis applies to what is in 

place currently. 

22. The C6urt credits the testimony of Mr. Jarrell as to criteria (d)(9) and (e)(4), 

which require that the opacity was not part of a recurring pattern indicative of 

inadequate design, operation, or maintenance. As discussed above, the Court 

finds that none of the events was the result of inadequate design and operation 

of the ESPs and baghouses. As to maintenance, the Court finds, based on the 

testimony of Mr. Jarrell, the third-party inspections and repairs that were 

conducted, and other evidence, that the equipment is well-maintained. The 

Court finds no instances in which an opacity event was caused by poor 

maintenance. Although Dr. Sahu gave the opinion that the plant should have 

spent $5 million more in maintenance each year, he did not indicate what 

essential maintenance work should have been done or how that money should 

be spent. For instance, Dr. Sahu opined that Defendants' lax maintenance and 

operating practices contributed to equipment problems and compounded the 

problems posed by the plant's "inadequately-sized" ESPs and baghouses. While 

admitting that proper maintenance and operation would not have entirely 

eliminated opacity exceedances, Dr. Sahu believed that there would have been a 

reduction in the duration and levels of some of the exceedances. However, for 

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many of the items that Dr. Sahu cited from the third-party inspection reports as 

examples of "poor maintenance" (like ESP expansion joints), the very same 

report indicated that the maintenance issue had been satisfactorily addressed. 

Given the many omissions and errors in Dr. Sahu's testimony, the Court does not 

find credible his assessment of the maintenance history of the ESPs and 

baghouses. As Mr. Jarrell testified, Luminant spent between approximately $4M 

to $8M on combined capital and O&M expenditures on Big Brown's ESPs and 

baghouses each year from 2005 to 2012. The work is scheduled and conducted 

during an outage at the plant in coordination with ERCOT and in light of 

electricity needs for the grid. The Court finds that adequate maintenance was 

timely performed on the ESPs and baghouses and that criteria (d)(9) and (e)(4) 

are met for all events. 

23. The Court also finds that criteria (d)(5), (d)(6), and (e)(7), which address 

the operator's efforts to minimize opacity, are met for all events, based on the 

testimony of Mr. Jarrell and a review of the reports at issue. The 6,520 sixminute readings that Sierra Club challenges comprise only about 1.5 percent of 

the plant's total operating time during this period. In other words, during about 

98.5 percent of the time, the plant is operating with opacity below 30 percent, 

usually around 10 percent. As Mr. Jarrell testified, these limited startup and 

shutdown opacity events are necessary to ensure effective operation of the 

equipment when it is needed most-during the 98.5 percent of the time that the 

plant is in normal operation mode. During normal operations, the opacity at the 

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plant is generally 1 0 percent or less, which is a clear stack. If the plant operated 

in a different manner, the ESPs and baghouses would experience caking or 

plugging, decreasing their collection efficiency and increasing opacity overall. 

The Sierra Club offered no competent evidence to the contrary. The Court finds 

that criteria (d)(5), (d)(6), and (e)(7) are met. 

24. Finally, based on the testimony of Dr. Lucy Fraiser, the Court finds that 

criteria (d)(10) and (e)(10) are met because none of the opacity events at issue 

caused or contributed to "a condition of air pollution." "Air pollution" is defined in 

Texas as "the presence in the atmosphere of one or more air contaminants or 

combination of air contaminants in such a concentration and of such duration that 

either (A) are or may tend to be injurious to or adversely affect human health or 

welfare, animal life, vegetation, or property; or (B) interfere with the normal use or 

enjoyment of animal life, vegetation, or property." TEX. HEALTH & SAFETY CODE§ 

382.003(3). Analyzing both aspects of the definition of air pollution, Dr. Fraiser 

concluded that the events at issue did not cause or contribute to a condition of air 

pollution as determined by the TCEQ. The Court agrees. 

25. To begin with, the air quality modeling relied on by Dr. Fraiser, which was 

conducted by Mr. Paine, demonstrates that the impact to ambient air quality from 

these short duration opacity events was minimal and did not cause any violations 

of the relevant NAAQS levels. As recognized by Sierra Club's expert, Dr. 

Thurston, the NAAQS are the cornerstone of the nation's air pollution control 

program and are aimed at establishing air quality requirements sufficient to 

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protect public health and welfare. The experts from both sides agree that the 

primary NAAQS are set at a level designed to protect human health with an 

adequate margin of safety, including protecting sensitive populations such as 

children, the elderly, and individuals suffering from respiratory diseases. The 

secondary NAAQS are designed to provide public welfare protection, including 

protection against decrease visibility and damage to animals, crops, vegetation, 

and buildings. Sierra Club's own experts agree with Dr. Fraiser that there are no 

violations of the primary or secondary PM NAAQS relating to the events at issue 

in this case. Based on the air modeling, an analysis of the NAAQS, and an 

analysis of possible health effects caused by the opacity events, Dr. Fraiser 

concluded that the events at issue did not adversely affect human health or 

welfare. 

26. Additionally, Dr. Fraiser considered several other factors in determining 

whether the opacity events interfered with the normal use or enjoyment of animal 

life, vegetation, or property. For example, Dr. Fraiser analyzed the surrounding 

land use, the time of day of the events, the duration of the events, the percentage 

of time of the events, and whether there were complaints to the TCEQ relating to 

the events. Based on these additional factors as well as the secondary NAAQS, 

Dr. Fraiser further concluded that the events at issue did not interfere with the 

normal use or enjoyment of animal life, vegetation, or property. 

27. Unlike Dr. Fraiser, Sierra Club's experts - Dr. Gray and Dr. Thurston - did 

not analyze or consider criteria (d)(10) and (e)(10) of the affirmative defenses. 

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Both of them confirmed that they were not familiar with the Texas definition of air 

pollution, were not familiar with criteria (d)(10) and (e)(10), and were not 

attempting to express an opinion on criteria (d)(10) and (e)(10). 

28. Still, Dr. Thurston testified that even if Big Brown Plant complied with area 

NAAQS standards, the emissions it was producing based on the opacity 

exceedances at issue, were still having short- and long-term adverse health 

effects for humans in the area surrounding the plant. Dr. Thurston disagreed 

with Dr. Frazier, who concluded that air pollution levels at or below NAAQS levels 

were safe. Dr. Thurston conceded, however, that he does not know how the 

TCEQ defines air pollution or how it interprets the application of the affirmative 

defense factors. Dr. Thurston also acknowledged that he has no evidence that 

Big Brown violated any NAAQS levels and is unable to cite a specific instance 

where an opacity violation at the plant directly harmed a person. 

29. Dr. Gray examined the emission readings from the stacks at Big Brown 

Plant and analyzed air modeling reports based on dispersion scenarios with 

respect to the plant's emissions and opacity levels and its effects on the local 

environment. Dr. Gray opined that the opacity exceedances at the plant had a 

significant impact on the air quality of the local environment and for individuals 

who lived downwind from the plant. Pointing to a 2011 TCEQ Emission Inventory 

chart, Dr. Gray explained that Big Brown Plant's two units are listed as the 

second and third largest producer of PM2.

5 emissions among 2,000 facilities in 

the state of Texas. {Exhibit P-290, P-291]. He further noted that this was the 

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case notwithstanding the fact that MSS events account for less than two percent 

of the total annual time of operation at any given year at Big Brown Plant. 

30. Dr. Gray testified that compliance with the current NAAQS levels will not 

eliminate all health risks to humans. However, Dr. Gray conceded that he did not. 

consider the affirmative defenses and is unable to opine on the suitability of the 

NAAQS levels as implemented by EPA. Still, Dr. Gray believes that any increase 

of PM above a level of zero increases health risk and admits that his definition of 

air pollution is different than the definition considered by the TCEQ. 

31. Thus, even absent deference to TCEQ's contemporaneous findings, the 

Court concludes that the evidence adduced at trial supports a finding that all of 

the ten criteria (in subsection (d) for upsets and subsection (e) for MSS) are 

satisfied for all of the opacity events at issue. 

32. In sum, based on the testimony adduced at trial and the exhibits admitted, 

for all of the events on Luminant's reports for the period July 2007 to December 

2010 that were designated as "excess opacity events due to an upset," the Court 

finds: 

(1) The events were properly reported to TCEQ in either a STEERS 

report or a quarterly report or both. 

(2) The opacity was caused by a sudden, unavoidable breakdown of 

equipment or process beyond the control of the owner or operator. 

(3) The opacity did not stem from any activity or event that could have 

been foreseen and avoided or planned for, and could not have been 

avoided by better operation and maintenance practices or by technically 

feasible design consistent with good engineering practice. 

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(4) The air pollution control equipment or processes were maintained 

and operated in a manner consistent with good practice for minimizing 

opacity. 

(5) Prompt action was taken to achieve compliance once the operator 

knew or should have known that applicable opacity limitations were being 

exceeded and any necessary repairs were made as expeditiously as 

practicable. 

(6) The amount and duration of the opacity event and any bypass of 

pollution control equipment were minimized and all possible steps were 

taken to minimize the impact of the opacity on ambient air quality. 

(7) All emission monitoring systems were kept in operation if possible. 

(8) The owner or operator actions in response to the opacity event were 

documented by contemporaneous operation logs or other relevant 

evidence. 

(9) The opacity event was not part of a frequent or recurring pattern 

indicative of inadequate design, operation, or maintenance. 

(10) The opacity event did not cause or contribute to a condition of air 

pollution. See 30 TEX. ADMIN. CODE§ 101.222(d). 

33. And, based on the testimony adduced at trial and the exhibits admitted, for 

all of the events on Luminant's reports for the period July 2007 to December 

2010 that were designated as MSS, the Court similarly finds: 

(1) The events were properly reported to TCEQ in either a STEERS 

report or a quarterly report or both. 

(2) The opacity was caused by a sudden, unavoidable breakdown of 

equipment or process beyond the control of the owner or operator. 

(3) The periods of opacity could not have been prevented through 

planning and design. 

(4) The opacity was not part of a recurring pattern indicative of 

inadequate design, operation, or maintenance. 

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(5) If the opacity event was caused by a bypass of control equipment, 

the bypass was unavoidable to prevent loss of life, personal injury, or 

severe property damage. 

(6) The facility and air pollution control equipment were operated in a 

manner consistent with good practices for minimizing opacity. 

(7) The frequency and duration of operation in a startup or shutdown 

mode resulting in opacity were minimized. 

(8) All emissions monitoring systems were kept in operation if possible. 

(9) The owner or operator actions during the opacity event were 

documented by contemporaneous operating logs or other relevant 

evidence. 

(10) The opacity event did not cause or contribute to a condition of air 

pollution. See 30 TEX. ADMIN. CODE§ 101.222(e). 

34. The Court concludes that no penalty should be awarded for any of the 

opacity events at Big Brown Plant from July 2007 to December 2010 because the 

Defendants have proven the applicable affirmative defense for each event by a 

preponderance of the evidence. Thus, judgment will be entered in favor of 

Defendants on Sierra Club's request for civil penalties (including civil penalties to 

be designated for a beneficial mitigation project). 

Ill. Sierra Club Is Not Entitled to Any Injunctive Relief 

35. The Court further concludes that Sierra Club is not entitled to any 

injunctive relief, and its request for a permanent injunction will be denied. 

A. The Conduct Sierra Club Seeks to Enjoin is Now Permitted 

36. As noted above, TCEQ amended Big Brown's Air Permit No. 56445 in 

December 2011 to specifically permit and regulate the type of MSS emissions 

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events at issue in this case. Ms. Hernandez confirmed that the plant must follow 

this permit. And Mr. Chavers testified, and the reports indicate, that the MSS 

activity of which Sierra Club complains is now regulated and limited by the 

permit. Thus, the current version of Air Permit No. 56445 authorizes and makes 

lawful the very MSS activity that Sierra Club asks this Court to enjoin. Sierra 

Club has offered no evidence to the contrary. 

37. Further, because Luminant has applied for a revision of its Title V permit 

and identified the revised Permit No. 56445 as a provisional term and condition, 

Texas's EPA-approved Title V regulations make this current version of the permit 

federally enforceable in this case. 30 TEX. ADMIN. CODE§ 122.217; see also 45 

TEX. PRAC., ENVTL. LAW§ 5:10 (2d ed. 2013-2014) (when a "Title V permit holder 

submits an application for a minor permit revision . . . , the permit holder can 

operate the change before the issuance of the revised permit"). 

38. "Equitable relief is a prospective remedy, intended to prevent future 

injuries, and for that reason the sole function of an action for injunction is to 

forestall future violations." Sierra Club v. TVA, 592 F. Supp. 2d 1357, 1375 (N.D. 

Ala. 2009) (internal citations and quotations omitted). An injunction will not be 

issued for only alleged past infractions because such prospective equitable relief 

will not redress the plaintiff's injury. See Steel Co. v. Citizens for a Better Env't, 

523 U.S. 83, 109 (1998) ("Because respondent alleges only past infractions ... 

and not a continuing violation or the likelihood of a future violation, injunctive 

relief will not redress its injury."). 

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39. It is well settled that a court has no authority to enjoin lawful conduct. See 

Lauf v. E.G. Shinner & Co., 303 U.S. 323, 328 (1938) (a federal district court may 

not "enjoin acts declared ... to be lawful"); Senn v. Tile Layers Protective Union, 

Local No. 5, 301 U.S. 468, 483 (1937) (injunctive relief will not issue "against the 

lawful conduct of another''); Sierra Club v. Peterson, 228 F.3d 559, 571 (5th Cir. 

2000) (a district court may not enter an injunction that fails "to distinguish 

between legal and illegal future [conduct]"). 

40. As Mr. Chavers testified, the plant is operating now in accordance with that 

permit and its MSS duration limitations, and Sierra Club has offered no contrary 

evidence or evidence to suggest this will change in the future. Because "there is 

a total lack of evidence that [Defendants are operating Big Brown] in violation of 

existing law," an injunction, which would govern future operation of the plant, is 

not warranted. TVA, 592 F.Supp.2d at 1375 (denying Sierra Club request for 

injunction based on past opacity events) (emphasis in original). Because Permit 

No. 56445 now authorizes and regulates the MSS emissions, the Court will not 

enjoin them as Sierra Club requests. 

41. Further, even if the revised Permit No. 56445 were not federally 

enforceable as Sierra Club argues, the Court will not substitute its judgment as to 

how Big Brown should operate its ESPs and baghouses for the judgment of the 

regulatory agency charged with making those determinations. TCEQ has 

reviewed the plant's operations and concluded how the emissions control 

equipment should be operated to reduce emissions overall ·and has determined 

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that the currently-permitted method reduces emissions to de minimis levels and 

does not negatively impact air quality. This Court, in its discretion, will not issue 

an injunction that conflicts with TCEQ's technical assessment. 

B. Application of the Traditional Four-Factor Test for Injunctive 

Relief Demonstrates that an Injunction is Not Warranted 

42. Even without considering the revised Permit No. 56445, the Court 

concludes that Sierra Club is not entitled to an injunction. Injunctive relief is not 

awarded automatically in all cases, even where a violation of the law is 

established. Winter v. NRDC, Inc., 555 U.S. 7, 32 (2008) ("[a]n injunction is a 

matter of equitable discretion; it does not follow from success on the merits as a 

matter of course."); Simmons v. Conger, 86 F.3d 1080, 1085 (11th Cir.1996) 

("Simply because prospective injunctive relief is available ... does not mean that 

such equitable relief is appropriate."); Weinberger v. Romero-Barcelo, 456 U.S. 

305, 320, 313 (1982) (the "exercise of equitable discretion ... must include the 

ability to deny as well as grant injunctive relief' and "a federal judge sitting as 

chancellor is not mechanically obligated to grant an injunction for every violation 

of law"). 

43. "It is well-established that the party seeking a permanent injunction must 

demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies 

available at law, such as monetary damages, are inadequate to compensate for 

that injury; (3) that, considering the balance of hardships between the plaintiff 

and defendant, a remedy in equity is warranted; and (4) that the public interest 

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would not be disserved by a _permanent injunction." Abraham v. Alpha Chi 

Omega, 708 F.3d 614, 626-27 (5th Cir.) cert. denied, 134 S. Ct. 88 (2013) (citing 

eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006) (citations omitted)). 

44. Here, Sierra Club has not shown that these factors warrant an injunction. 

First, Sierra Club has not demonstrated a_ny irreparable harm, and the Court finds 

there is no irreparable harm. 

45. Second, the TCEQ and EPA are charged by the Clean Air Act with issuing 

the permits for the plant, and Sierra Club has access to other legal remedies to 

challenge the terms of the permit and the operation of the plant. Sierra Club has 

failed to show that it has no other remedies at law. 

46. Third, the balance of hardship weighs heavily in favor of Defendants. On 

the one hand, Sierra Club has provided no credible evidence of any adverse 

impact, curtailed activities, or particular hardship as a result of the events at issue 

or events in the future. Defendants, on the other hand, have invested millions of 

dollars in the installation and maintenance of the ESPs and baghouses at Big 

Brown. Sierra Club's requested injunction is unwarranted, impracticable, and 

would cause substantial hardship and disruptions to the plant's business and its 

ability to provide reliable electricity. 

4 7. The Court further finds that the public interest would not be served by an 

injunction. Big Brown generates enough electricity to power about 575,000 

homes in Texas. This is much-needed electricity for the State. Electricity is not a 

convenience; it is a necessity. Threatening the supply of electricity is not in the 

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public interest and is another ground for denial of injunctive relief. See Sierra 

Club v. Georgia Power Co., 180 F.3d 1309, 1311 (11th Cir. 1999) (affirming 

denial of injunction sought by Sierra Club over power plant operations as adverse 

to the public interest because "a steady supply of electricity during the summer 

months, especially in. the form of air conditioning to the elderly, hospitals and day 

care centers is critical"). 

48. For these reasons, Sierra Club's request for injunctive relief is denied and 

judgment will be entered in favor of Defendants on Sierra Club's request for 

injunctive relief. 

IV. Sierra Club has not Proven that the Opacity Events at Issue Caused 

any Injury to Barbara Lawrence or any Other Person 

49. For an independent and additional reason, the Court concludes that Sierra 

Club has failed to demonstrate its entitlement to any relief. As the Fifth Circuit 

has held, "[Plaintiffs] must ultimately establish causation if they are to prevail on 

the merits" of their Clean Air Act claims. See Texans United for a Safe Econ. 

Educ. Fund v. Crown Central Petroleum Corp., 207 F.3d 789, 793 (emphasis 

added); Tex. Campaign for the Env 1

t v. LCRA, No. 4:11-cv-791, 2012 WL 

1067211, at *5 (S.D. Tex. Mar. 28, 2012). This showing, as the Fifth Circuit held, 

is separate and apart from the minimal showing of "traceability" needed to 

demonstrate Article Ill standing. Texans United, 207 F.3d at 793. Thus, as the 

Court explained in its prior Order, "[t]o ultimately prevail in its lawsuit, Plaintiff will 

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need to prove causation and explicitly link opacity violations to Lawrence's 

injuries[.]" Doc. 202 at 11. 

50. Sierra Club failed to prove any link between an alleged opacity violation 

and injury to Ms. Lawrence or any other person. 16 

51. Sierra Club offered no expert testimony to establish a caus~I connection 

between the specific opacity events at issue in this case and any aesthetic or 

other injury Ms. Lawrence may have suffered. 

52. To the extent Sierra Club was offering the testimony of Dr. Gray or Dr. 

Thurston to establish causation, the Court concludes that their testimony was 

inadequate on this point. The Court finds that any alleged increase in PM is de 

minimis and did not cause a material increase in health risk to Ms. Lawrence or 

any other resident of the area near Big Brown. 

53. Moreover, the Court concludes that even if Dr. Thurston's testimony were 

accepted at face value, it would be inadequate as a matter of law to establish a 

causal connection between the opacity events at issue and any legally 

cognizable injury. Dr. Thurston's opinion is that any amount of PM above zero 

increases the risk of health problems. However, Dr. Thurston provided no 

evidence that Ms. Lawrence (or any other specific, individual person) has actually 

experienced any health problems. The Fifth Circuit has held that in the absence 

of "a presently existing injury," the mere fact that a person has been exposed to a 

16 In fact, Sierra Club did not even call Ms. Lawrence as a witness at trial. 

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potentially hazardous substance is not a legally cognizable injury: '"the requisite 

element of causation is lacking until separate prospective injuries materialize.'" 

Adams v. Johns-Manville Sales Corp., 783 F.2d 589, 591-92 (5th Cir. 1986) 

(quoting Adams v. Johns-Manville Sales Corp., 727 F.2d 533, 537 (5th Cir. 

1984)); accord Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424, 432 

(1997) ("with only a few exceptions, common-law courts have denied recovery to 

those who ... are disease and symptom free"). Thus, even if the testimony from 

Dr. Gray and Dr. Thurston had established that the opacity events at issue had 

caused an increased risk of health problems, that evidence would not enable 

Sierra Club to carry its burden on causation. 

54. Sierra Club, in its trial brief, contends that the CAA citizen suit provision 

does not require proof of causation. But the Fifth Circuit, which this Court must 

follow, has stated otherwise, as discussed above. Further, even if causation 

were not a separate element of proof, the Court finds that the complete lack of 

any link between these opacity events and Ms. Lawrence or any other Sierra 

Club member (or even any member of general public) would call for denial of any 

injunctive or monetary relief, which are matters within the Court's discretion. 

V. No Penalty is Appropriate under the Statutory Factors 

55. Even if the affirmative defense criteria had not been met or did not apply, 

the Court finds, after hearing the evidence, that civil penalties are not 

"appropriate" under 42 U.S.C § 7604(a) considering the penalty criteria in 42 

U.S.C. § 7413(e)(1 ). For this additional and alternative reason, the Court 

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declines to assess any penalty, and judgment will be entered in Defendants' 

favor on Sierra Club's claim for civil penalties. 

56. As the Fifth Circuit has held, "[t]he assessment of civil penalties under the 

[CAA] is left to the district court's discretion." U.S. EPA v. CITGO Petroleum 

Corp., 723 F.3d 547, 551 (5th Cir. 2013). In general, "[i]n assessing the amount 

of a civil penalty in ... [a CAA] citizen suit, the court must consider the penalty 

assessment criteria outlined in section 7413(e)." Luminant Generation Co., 714 

F.3d at 846. 

57. Looking to the factors in 42 U.S.C. § 7413(e), in light of the evidence 

adduced at trial, the Court finds that no penalty is "appropriate" in this case. As 

the Fifth Circuit has instructed, the economic benefit to the defendant is a "critical 

factor'' in determining whether a penalty is appropriate. CITGO, 723 F.3d at 552. 

However, the evidence showed that Defendants did not obtain an economic 

benefit from the opacity events, and the Court finds that Defendants did not 

obtain an economic benefit. 

58. Sierra Club offered the opinions of Mr. Ewen in rebuttal to the opinions of 

Defendants' expert, Dr. Anne Smith. As Mr. Ewen testified, Dr. Smith analyzed 

any "economic benefit" Defendants would have incurred from the alleged 

CAA violations at the Big Brown plant and concluded that Defendants 

suffered a net economic loss from the events. 

59. At trial, Mr. Ewen testified as to his criticisms of Dr. Smith's opinion. For 

example, Mr. Ewen disagreed with Dr. Smith's characterization of a period of 

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opacity compliance to a period of opacity exceedancy because a power plant 

cannot operate in a manner suggested by Dr. Smith. However, even accepting 

such criticisms, his rebuttal opinion does not show a positive economic benefit to 

Defendants. 

60. Mr. Ewen. recognized at trial that an economic benefit analysis can result in 

a negative or zero number, indicating no economic benefit. Here, the evidence 

adduced at trial supports the conclusion that Defendants obtained no economic 

benefit from the opacity events. The evidence before the Court was that 

Luminant expended significant sums to install and maintain at the plant both 

ESPs and baghouses, in series. The evidence also shows that Luminant spends 

millions of dollars each year in maintaining the equipment in good working order. 

Sierra Club did not identify any specific repair or maintenance work that was not 

done and would have prevented the opacity events at issue. The evidence 

further shows that electricity cannot be stored and that plants already have an 

incentive to minimize the outages that result in the opacity events. At trial, Mr. 

Ewen agreed that plants have an incentive and motivation to decrease 

unplanned outages like the ones that cause higher opacity readings. 

61. Moreover, as Mr. Ewen testified at trial, in considering economic benefit, 

the proper methodology considers the least costly method of compliance. Thus, 

even if there were an economic benefit, the Court would consider as the 

economic benefit the least costly compliance option, not "solutions [that are] 

considerably overpriced." United States v. Allegheny Ludlum Corp., 366 F.3d 

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164, 185 (3rd Cir. 2004) ("We ... hold that [the] economic benefit analysis 

should be based on the least costly method of compliance."). As Mr. Ewen 

further testified, in some instances, the least costly compliance option will be 

applying for and obtaining a permit to authorize the activity at issue, and the cost 

of obtaining the permit, though perhaps "negligible," is the correct measure of 

economic benefit. See U.S. EPA, A Framework for Statute-Specific Approaches 

to Civil Penalty Assessments, EPA General Enforcement Policy #GM-22, at 7 

(Feb. 16, 1984) [Exhibit D-128]. 

62. Here, the least costly compliance option would not have been the new 

baghouse that Dr. Sahu proposed, but would have been the option that Luminant 

actually pursued-applying for and obtaining a revision to Permit No. 56445 in 

December 2011 to authorize and regulate the events. The evidence shows that 

the application fee that Luminant paid to TCEQ in order to obtain the permit was 

$900. [Exhibit D-12.15]. While this amount is certainly negligible, it would 

nonetheless be the correct measure of any delay in compliance that might have 

existed under Sierra Club's legal theory. 

63. Economic benefit is not the only factor the Court must consider. The other 

factors also indicate that no penalty is appropriate. As Dr. Fraiser testified, the 

opacity events at issue were not "serious" from an environmental or human 

health perspective. There is no evidence of impact to the environment or any 

i~dividual. The events were not serious enough to generate any complaints to 

the TCEQ from nearby residents or any other person. The events were properly 

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reported by Luminant to the TCEQ, which determined the events were not 

"excessive" and not violations. 

64. In addition, the opacity at issue occurred for only a minimal amount of time 

and did not interfere with air quality standards or cause any harm to any 

individual. Defendants were simply operating the control equipment in 

accordance with EPA and industry standards in order to ensure human safety 

and effective operation of the equipment. Operating the equipment in any other 

manner is not advisable. This particular equipment was selected and installed as 

part of a prior settlement with the Texas Air Control Board (now TCEQ) and the 

Lone Star Chapter of the Sierra Club [Exhibit D-28, D-29], and it would hardly 

make sense to penalize the company for operating the equipment as it was 

designed and installed with Sierra Club's involvement. 

65. Further, as testified to by Ms. Glacken, the plant has a long and welldocumented history of excellent compliance and good faith efforts to meet and 

outperform all requirements of the Clean Air Act, the Texas State Implementation 

Plan, the plant's permits, and other applicable environmental laws, which weighs 

in factor of no penalty being imposed. Sierra Club offered no contrary evidence. 

The events that are the subject of Sierra Club's complaint were fully reported to 

both TCEQ and EPA, and both determined that no enforcement action was 

warranted. TCEQ specifically investigated each event and determined there was 

no violation. Finally, the MSS events at issue are now expressly permitted under 

Permit No. 56445, which is a provisional condition to Title V Permit No. 065. 30 

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TEX. ADMIN. CODE§ 122.217. Thus, a penalty would serve no deterrent effect in 

the future. 

66. The Court therefore concludes, based on its analysis of all of the factors 

enumerated in 42 U.S.C. § 7413{e){1) and the evidence adduced at trial, that 

under 42 U.S.C. § 7604{a) no penalty is appropriate for any of the opacity events 

that are the subject of this lawsuit. Thus, for this additional reason, judgment will 

be entered in favor of Defendants on Sierra Club's request for civil penalties. 

VI. Sierra Club's Claim is Moot as to MSS Activities 

67. Alternatively, and independently, Sierra Club's claim with respect to MSS 

events will be dismissed as moot. 

68. As the Court explained in dismissing Sierra Club's PM claim, it has long 

been settled that '"[a] case seeking injunctive relief based on conduct that has 

become lawful due to a change in the law is rendered moot by the change in 

law."' Doc. No. 240 at 17 {quoting TVA, 592 F. Supp. 2d at 1376); accord Sawyer 

v. Whitley, 945 F .2d 812, 814 n.1 {5th Cir. 1991 ). 

69. For this reason, injunctive relief is not available to remedy past opacity 

exceedances at a plant that is in compliance with its current permit. See TVA, 

592 F. Supp. 2d at 1376-77. Here, excess opacity during MSS has become 

lawful due to the change in Permit No. 56445. Sierra Club does not dispute that 

Big Brown presently operates in compliance with the duration and work-practice 

requirements {and all other terms and conditions) of amended Permit No. 56445, 

and the testimony of Mr. Chavers confirms that Big Brown does comply with its 

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new permit. As the Court has already explained, where, as here, "the threat of a 

future violation or harm has been nullified by an approved permit, 'there is no 

factual or legal ground to impose injunctive relief, and the case has become 

moot."' Doc. 240 at 17 (quoting TVA, 592 F. Supp. 2d at 1377). 

70. As for Sierra Club's request for a civil penalty, a citizen suit seeking civil 

penalties is mooted by the issuance of a permit that authorizes the activities for 

which the suit seeks penalties. Doc 240 at 16-17 ("Once a Title V permit is 

issued, a civil action seeking civil penalties for conduct allowed by the permit 

becomes moot."); accord Miss. River Revival, Inc. v. City of Minneapolis, 319 

F.3d 1013, 1015-16 (8th Cir. 2003) ("Because permits have now issued, ... 

plaintiffs' civil penalties claims are moot .... "); see also WildEarth Guardians v. 

Pub. Serv. Co. of Colo., 690 F .3d 117 4, 1186-87 (10th Cir. 2012) (claim for civil 

penalties mooted by a change in the governing regulations). This rule is the 

logical consequence of the remedial purpose of a civil penalty, which is to deter 

future misconduct. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl Servs. 

(TOG), Inc., 528 U.S. 167, 185-86 (2000). Where the conduct that would be 

penalized has become lawful and permitted, that conduct is no longer 

misconduct, and a "claim for civil penalties, even if successful, would have no 

deterrent value." WildEarth Guardians, 690 F .3d at 1187. 

CONCLUSION 

For all of these reasons, the Court will enter judgment in favor of 

Defendants on all claims and will deny all relief requested by Sierra Club. Based 

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on the findings of fact above, the Court further concludes, pursuant to 42 U.S.C. 

§ 7604(d), that an award of the costs of litigation (including reasonable attorney 

and expert witness fees) to Defendants is appropriate. Pursuant to Federal Rule 

of Civil Procedure 54(d)(2) and Local Rule CV-7U), and in compliance with the 

requirements of those rules, Defendants may file their claim for fees by motion 

not later than 14 days after entry of judgment, at which time the Court will take up 

such motion. Accordingly, it is 

ORDERED that judgment is entered in favor of Defendants and Sierra 

Club's request for civil penalties and injunctive relief is DENIED. It is also 

ORDERED that any motion still pending in this lawsuit is DENIED AS 

MOOT. It is further 

ORDERED that the Clerk shall enter final judgment in accordance with this 

Memorandum Opinion and Order. 

SIGNED on this :J.~'" day of March, 2014. 

WALTER S. SMITH, JR. 

UNITED STATES DISTRICT JUDGE 

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