Ass'n of Irritated Residents v. Fred Schakel Dairy

• Decision Date: 22 July 2008
• Docket Number: No. 1:05-CV-00707 OWW SMS.,1:05-CV-00707 OWW SMS.
• Citation: 634 F.Supp.2d 1081
• Parties: ASSOCIATION OF IRRITATED RESIDENTS, an Unincorporated Association, Plaintiff, v. FRED SCHAKEL DAIRY, a California Proprietorship, Fred Schakel, owner and operator, Schakel Family Partnership, a California Limited Partnership, owner and operator, AG Resources III, a California Limited Liability Company, owner and, South Lakes Dairy, a California General Partnership, owner and operator, Defendants.
• Court: U.S. District Court — Eastern District of California

Page 1081

634 F.Supp.2d 1081

ASSOCIATION OF IRRITATED RESIDENTS, an Unincorporated Association, Plaintiff, v. FRED SCHAKEL DAIRY, a California Proprietorship, Fred Schakel, owner and operator, Schakel Family Partnership, a California Limited Partnership, owner and operator, AG Resources III, a California Limited Liability Company, owner and, South Lakes Dairy, a California General Partnership, owner and operator, Defendants.

No. 1:05-CV-00707 OWW SMS.

United States District Court, E.D. California.

July 22, 2008.

Brent Joseph Newell, Luke W. Cole, Sofia Lorena Sarabia, San Francisco, CA, Caroline Farrell, Delano, CA, Charles M. Tebbutt, PHV, Eugene, OR, for Plaintiff.

David Ray Albers, David R. Albers, Inc., Bakersfield, CA, David Douglas Doyle, Doyle & Watson, Fresno, CA, Lee N. Smith, Stoel Rives LLP, Sacramento, CA, for Defendants.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION TO FOR CERTIFICATION ON THE THIRD CAUSE OF ACTION UNDER 28 U.S.C. § 1292(b) AND GRANTING DEFENDANTS' MOTION TO STAY ENTIRE CASE (Doc. 281)

OLIVER W. WANGER, District Judge.

1. INTRODUCTION

Defendants move to certify under 28 U.S.C. § 1292(b) for immediate appeal, the March 28, 2008 Order, 2008 WL 850136, that denied Defendants' motion to dismiss Plaintiff's Association of Irritated Residents ("AIR") third cause of action alleging Defendants violated the Clean Air Act ("CAA") section 112(g)(2)(B), 42 U.S.C. § 7412(g)(2)(B), because Defendants constructed a major source of Hazardous Air Pollutants ("HAP") and failed to obtain a Maximum Available Control Technology ("MACT") determination for methanol emissions prior to initiating construction of the Fred Schakel Dairy also known as the South Lakes Dairy (the "Dairy"). Defendants also seek a stay on two grounds. (Doc. 282, Motion to Certify, Filed April 11, 2008) AIR opposes the motion. (Doc. 310, Opposition, Filed May 16, 2008) This matter was heard on June 2, 2008.

2. PROCEDURAL BACKGROUND

AIR filed its initial complaint on June 1, 2005. (Doc. 1) AIR filed its Fourth Amended Complaint on July 3, 2007 to add the third cause of action for violation of CAA section 112(g)(2)(B). (Doc. 153, Complaint) On August 20, 2007, Defendants filed a Motion to Dismiss Plaintiff's third cause of action. (Doc. 160, Motion to Dismiss) Oral argument on Defendants Motion to Dismiss was heard on January 28, 2008. On March 28, 2008, an order was entered denying Defendants' Motion to Dismiss Plaintiff's third cause of action. (Doc. 277, March 28 Order) On April 11, 2008, Defendants filed a Motion to Certify under 28 U.S.C. § 1292(b) for immediate appeal the March 28 Order and to stay proceedings of this suit until the Ninth Circuit decides the issue. (Doc. 282) On May 16, 2008, Plaintiff filed its Opposition to the Motion to Certify. (Doc. 310) On May 23, 2008, Defendants filed their reply to Plaintiff's Opposition. (Doc. 317, Reply)

3. FACTUAL BACKGROUND

The background facts for this entire suit are set forth in prior rulings, therefore only pertinent facts are repeated and amplified upon for the purposes of evaluating Defendants' Motion to certify the CAA ruling for interlocutory appeal.¹

A. Dairy Cows and Methanol

The Dairy emits methanol from cows' enteric emissions, freshly excreted manure, and decomposing feed stored at the Dairy. The human health risks from methanol exposure include a decrease in gestation time, an increase in the number of required Caesarian-section births, and, in prenatally exposed children, instances of a severe wasting syndrome, concentration-related delay in sensorimotor development and lower performance on an infant intelligence test. See also American Forest and Paper Association v. EPA, 294 F.3d 113, 118-119 (D.C.Cir.2002) (denying petition for review of EPA decision that denied industry petition to delist methanol, citing 66 Fed. reg. 21929, 21932-21935).

The Dairy is designed to house a maximum 5,832 Holstein milk cows plus 5,058 support stock, as limited by the special use permit. A 1,000 pound cow produces waste equivalent to approximately 20 people. The Dairy produces the equivalent waste of a city of approximately 275,000 people.

Defendants have constructed, or are in the process of constructing, eight freestall barns, four manure solid separation lagoons, two liquid manure storage lagoons, corrals with flushed alleys for support stock, a milking barn, and feed storage facilities. These components comprise the Dairy facility and are collectively a stationary source within the meaning of the CAA and District Rule 2201. These components also constitute the Dairy facility. The Dairy also has at least one diesel internal combustion engine that is greater than 50 horsepower. The Dairy facility will occupy 256 acres. Fred Schakel and the Schakel Family Partnership own and operate the Dairy.

Each of the eight freestall barns is 750 feet long and 102.5 feet wide and is equipped with a system that uses wastewater from the liquid manure storage lagoons to flush the manure from the freestall barns. The barns' flush system captures 80% or more of the 5,832 milk cows' urine and feces and flushes the waste to the liquid manure storage lagoons. The milk cows will be milked three times per day in a centrally located milking barn, which is equipped with a flush system similar to the freestall barns except that fresh water is used to flush the cows' waste to the liquid manure storage lagoon. The support stock will be confined in open, dirt lined corrals that are equipped with a flush system on concrete lined feed alleys. The corrals's flush system captures 60% or more of the 5,058 support stock's urine and feces and flushes the waste to the liquid manure storage lagoons.

The Dairy has four solid separation lagoons where suspended solids in the liquified waste settle out of the waste stream. Each solid separation lagoon is 1,200 feet long and approximately 50 feet wide. The Dairy has two liquid manure storage lagoons, one measuring 400 feet wide by 1,000 feet long and the other measuring 400 feet wide by 650 feet long. The total volume of liquified waste storage is 10,024,848 cubic feet. Liquified manure from the freestall barns and flushed alleys will enter the solid separation lagoons, from which a portion of the manure solids will be removed and composted, and the two liquid manure storage lagoons will store the remaining liquified waste. The liquid manure storage lagoons will also contain manure contaminated wastewater and stormwater. The Dairy will use the liquified waste from the liquid manure storage lagoons as fertilizer for crops (alfalfa, wheat, and corn silage) grown on 1,550 acres. Feed will be stored at the southeast corner of the Dairy facility, and solid manure will be shipped off-site for use as fertilizer at nearby farming operations.

B. The Clean Air Act

The general purpose of the CAA is to enhance the quality of the nation's air quality resources for the benefit of public health. The CAA requires the United States Environmental Protection Agency ("EPA") to set National Ambient Air Quality Standards ("NAAQS") for certain pollutants including Ozone. The CAA requires states to designate areas within its boundaries as "attainment" areas if the air quality meets the NAAQS for a particular criteria pollutant. Areas where the air quality does not meet the NAAQS for a particular criteria pollutant are designated as "non attainment" areas for that pollutant. Ozone non attainment areas are divided under the CAA as "marginal," "moderate," "serious," "severe," and "extreme" based on the severity of the ozone problem. The San Joaquin Valley Air Basin has been designated as a "serious" non attainment area for the eight-hour ozone² NAAQS and an "extreme" non attainment area for the one-hour ozone NAAQS.

I. California State Implementation Plan ("SIP")

Non attainment areas are required to adopt state implementation plans, or SIPS, to achieve the NAAQS by the applicable attainment date. The CAA specifies that a SIP shall "require permits for the construction and operation of new or modified major stationary sources anywhere in the non attainment area." This preconstruction permit is a New Source Review ("NSR") permit.

As part of its obligations under the California SIP program, the District adopted Rule 2010 to implement the ATC permitting program (permits before construction begins) and the Permit to Operate permitting program ("PTO") (permits after construction) and Rule 2201 to implement the NSR permitting program. On January 1, 2004 California Senate Bill 700 removed a previously existing agricultural exemption for issuing NSR permits to agricultural resources. After 2004, agricultural sources were required to obtain NSR permits prior to construction of a stationary source facility. Rule 2201 requires a new or modified stationary source of air pollution or emissions unit to install Best Available Control Technology ("BACT") when the potential to emit volatile organic compounds ("VOC") exceed 2 pounds per day. The rule also requires that new or modified stationary sources purchase "offsets" or "emissions reduction credits" for VOC when the source's potential to emit exceeds 10 tons per year.

On January 31, 2008 The Regional Administrator for the EPA Region IX signed a proposed rule entitled "Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District" by which EPA proposes to correct an alleged error it made in the May 2004 final approval of the San Joaquin Valley Unified Air Pollution Control District's portion of the California SIP and to approve the District's 2006 revisions to District Rules 2020 and 2201 explicitly limiting the applicability of new source permitting requirements to certain minor sources and limiting the applicability of offset requirements for all minor sources consistent with criteria identified in state law. See Fed. Reg. 9260 (Feb. 20, 2008), Revisions to the California...