ELR Citation: ELR 20065
No(s). 05-11314 (11th Cir. Mar 30, 2006)

The court reverses a lower court's partial grant of summary judgment in favor of an environmental group claiming that a power plant violated the opacity limits set forth in its Clean Air Act Title V operating permit. The permit and a Georgia rule each include a startup, shutdown, and malfunction (SSM) provision that allows the plant to exceed the 40% opacity limit during SSM. Here, all of the violations allegedly occurred during periods of SSM. The lower court held that Georgia's SSM rule could not be used as a defense where allegations of opacity violations are raised in a citizen enforcement action. Georgia's SSM rule, however, applies to any enforcement action, whether initiated by the state or by a private citizen. Nor does current U.S. Environmental Protection Agency policy on SSM revoke the state rule. On remand, the power plant may invoke the SSM rule as a defense, but it will be required to prove that the rule's and permit's SSM conditions are satisfied for each instance of exceedance.