Association of Irr. Residents v. C & R Vand. Dairy, No. F 05-4593 AWI SMS.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtIshii
Citation435 F.Supp.2d 1078
Decision Date16 June 2006
Docket NumberNo. F 05-4593 AWI SMS.
PartiesASSOCIATION OF IRRITATED RESIDENTS, an Unincorporated Association, Plaintiff, v. C & R VANDERHAM DAIRY, a California Proprietorship, and Rick and Corrie Vanderham, owners and operators, Defendants.
435 F.Supp.2d 1078
ASSOCIATION OF IRRITATED RESIDENTS, an Unincorporated Association, Plaintiff,
v.
C & R VANDERHAM DAIRY, a California Proprietorship, and Rick and Corrie Vanderham, owners and operators, Defendants.
No. F 05-4593 AWI SMS.
United States District Court, E.D. California.
June 16, 2006.

Page 1079

Avinash Kar, Brent Joseph Newell, San Francisco, CA, for Plaintiff.

David Ray Albers, Albers Barnes and Kohler LLP, Bakersfield, CA, for Defendants.

Page 1080

ORDER ON DEFENDANTS'S MOTION TO DISMISS

ISHII, District Judge.


This is a Clean Air Act ("CAA") case brought by Plaintiff Association of Irritated Residents ("AIR") against Defendants C & R Vanderham Dairy, and Rick and Corrie Vanderham (collectively "Vanderham"). AIR alleges that Vanderham violated California's State Implementation Plan by constructing a stationary source that may emit pollutants without obtaining an Authority to Construct ("ATC") permit from the San Joaquin Valley Unified Air Pollution Control District ("the District") and without the attendant pollution limitations required by the implementation plan. Vanderham has filed a Rule 12(b)(1) Motion to Dismiss. For the reasons that follow, the motion will be denied.

FACTUAL BACKGROUND

From the complaint, on August 24, 2004, Vanderham obtained a conditional use permit for a diary from Kern County. The use permit limited the herd to 1,456 milk cows and 1,408 "support stock" (non-lactating or dry cows, heifers, and calves). On July 29, 2005, Vanderham obtained building permits for a milk barn, two freestall barns, and two hay barns at the dairy site. Vanderham began construction on or after July 29, 2005. Vanderham has begun to construct the Dairy to achieve maximum operational capacity and has constructed or is in the process of constructing, two freestall barns, two solid separation lagoons, two liquid manure storage lagoons, all planned corrals with flushed lanes, a milking barn, and feed storage facilities; these facilities compromise the dairy facility and will occupy 60 acres.

Dairy cows emit volatile organic compounds ("VOC") directly from their bodies's digestive system, which are referred to as enteric emissions. VOC is emitted from urine and feces ("manure") from dairy cows immediately after excretion in the freestall barns, from decomposing manure in the solid separation lagoons and liquid manure storage lagoons, in corrals, and in solid manure composting piles. Of the various compounds defined as VOC under District rules, dairy cows emit many defined VOCs, and decomposing feed also emits VOC. The enteric emissions from cows in the freestall barns and the milking barn, emissions from decomposing feed, and emissions from decomposing manure in the manure lagoons and compost piles are non-fugitive emissions in that they can reasonably pass through a stack, chimney, vent or other functionally equivalent opening. The freestall barns and milking barn, the liquid manure storage lagoons, the solid manure storage piles, and the feed storage unit each have the potential to emit VOC at a rate greater than 2 lbs. per day and 10 tons per year.

On December 15, 2005, AIR filed its Complaint and alleged a cause of action under citizen suit provision 42 U.S.C. § 7604(a)(1) of the CAA.1 AIR alleges that

Page 1081

Vanderham has violated District Rules 2010 and 2201, which have been approved by the EPA as part of California's State Implementation Plan. AIR alleges that Vanderham has failed to obtain an ATC permit from the District, has not installed Best Available Control Technology, and has not purchased emission reduction credits. AIR seeks declaratory and injunctive relief, the imposition of civil fines, and attorney's fees. On February 14, 2006, Vanderham filed this Rule 12(b)(1) motion and argues that this Court does not have subject matter jurisdiction because AIR did not exhaust administrative remedies.

Vanderham has submitted a series of correspondences between itself/its attorneys and the District. See Albers Declaration Exhibits C, D, E, F. Additionally, Vanderham has filed a request for judicial notice, to which there is no objection, of a December 2005 letter it received from the District, specifically from Samir Shelkh, Permit Service Manager. Vanderham's exhibits in pertinent part indicate:

1. On July 15, 2005, Vanderham through its attorney represented to the District that it was developing a dairy project that will be built for 1320 milk cows, 195 heifers, 486 heifers over 15 months, 378 heifers aged 7 to 14 months, 162 heifers 4 to 6 months, and 120 calves. Using a downloaded work-sheet from the District, the dairy would produce 12.4 tons per year of VOC and would be exempt from permitting requirements. Vanderham indicates that the dairy is under construction, is concerned over a rule change during the construction process, and requests a letter from the District that states the dairy is exempt from permitting requirements. See Albers Declaration Exhibit C.

On October 27, 2005, Vanderham informed the District that the cow population detailed in the July 15, 2005, letter is based on the current emission factor of 19.3 pounds, that the dairy is under construction, and that Defendants will take steps such as installing stanchions, loops, etc. so as to construct the dairy for the cattle population listed in the letter rather than for the greater population approved by Kern County. Additionally, Vanderham states that portions of the freestall barns and corrals will be cordoned off with fencing and/or locked gates to create physical limitations in housing for the cattle population. See Albers Declaration Exhibit D.

3. Exhibit E is a letter dated November 3, 2005, from Vander Weerd Construction to the District. The letter attaches a timeline concerning applications for, and issuances of, building permits and dates construction commenced. The timeline does not indicate whether construction has been completed as to any of the dairy's structures. See Albers Declaration Exhibit E.

4. On December 8, 2005, Vanderham's attorney sent a letter to the District regarding the October 27, 2005, letter. Vanderham's counsel indicates that he spoke with a District representative and that this letter is meant as a clarification. Vanderham's counsel states that, since locked gates could be unlocked, the Vanderhams have agreed to construct permanent barriers, meaning fencing will be welded to limit the dairy herd size to the cattle population specifically listed for the various age groups referenced in the October 27, 2005 [and July 15, 2005], letter. See Albers Declaration Exhibit F.

Page 1082

5. In December 2005, the District sent a letter to Vanderham. The letter indicates that it is "Re: Permits to Operate." The letter reads:

Based on all the information provided to the District regarding your construction activities, the determination was made that your dairy commenced construction prior to the date that the District started requiring Authority to Construct (ATC) permits. Your dairy is therefore considered an existing operation and no ATC is required.

However, since the emissions from your dairy exceed the new permitting levels, a Permit to Operate is required for your dairy. Pursuant to District Rule 2010, Section 4.3, when an application for a Permit to Operate is filed for an existing operation, the application serves as a temporary Permit to Operate. Therefore, since a permit application for your dairy operation was received on October 31, 2005, your application acts as a legal Permit to Operate until you have received your final Permit to Operate from the District.

Please notify the District Compliance Division at ... when construction is completed so that your dairy can be inspected.

Thank you for your cooperation in this matter....

Exhibit 1 Vanderham's Request for Judicial Notice.2

DEFENDANT'S MOTION

Defendant's Argument

Vanderham argues that following administrative remedies gives an agency the opportunity to correct errors, establish a record, and affords the parties the benefit of expertise and that the failure to so exhaust is a fatal jurisdictional defect. The CAA requires federal approval of SIP's to implement that act's standards, but "the prevention and control of air pollution at its source is the primary responsibility of States and local governments." 42 U.S.C. § 7401(3). Before proceeding under citizen suit provision § 7604(1), a plaintiff "must exhaust its administrative and judicial remedies before proceeding." See Action for Rational Transit v. West Side Highway Project by Bridwell, 699 F.2d 614, 616-17 (2d Cir.1983) ("Rational Transit"). In Rational Transit, plaintiffs challenged the state air pollution authority's determination that a transit project would not violate the New York SIP. Id. at 616. Plaintiffs did not challenge this finding through New York state law. Id. The Court of Appeals held dismissal was appropriate because the decision of the state agency was final and represented the end product of an administrative process entrusted by Congress to state officials. Id.

Here, the District was established by the California legislature in the California Health & Safety Code. The Health & Safety Code grants the District powers to adopt orders, regulations, rules, and permitting authority. Under Health & Safety Code § 42310.16(c), the District may not require, for any agricultural source whose actual emissions are less than half the applicable thresholds unless specific findings in a public hearing are made. The applicable threshold is 25 tons per year of non-fugitive VOC, which means agricultural sources are exempt from permitting requirement if their actual annual emissions do not exceed 12.5 tons of VOC per year. Vanderham has submitted certain information to the District as to the makeup of the herd. See Albers Declaration Exhibits C, D, & E. The information indicates that the

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herd is under the 12.5 ton limit and Vanderham...

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68 practice notes
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    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • July 11, 2012
    ...reason" because itPage 22was raised for the first time in BOA's reply brief. Ass'n of Irritated Residents v. C & R Vanderham Dairy, 435 F. Supp. 2d 1078, 1089 (E.D. Cal. 2006) ("It is inappropriate to consider arguments raised for the first time in a reply brief.").E. Breach of Fiduciary Du......
  • Asia Vital Components Co., Ltd. v. Asetek Danmark A/S, Case No. 16-cv-07160-JST
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 15, 2019
    ..., No. 16-CV-05479-JST, 2018 WL 1070116, at *9 (N.D. Cal. Feb. 27, 2018) (citing Ass'n of Irritated Residents v. C & R Vanderham Dairy , 435 F.Supp.2d 1078, 1089 (E.D. Cal. 2006) ). Regardless, AVC's cursory argument does not appear to demonstrate any violation of Asetek's discovery obligati......
  • Arnett v. Bank of Am., N.A., Case No. 3:11–cv–01372–SI.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • July 11, 2012
    ...reason” because it was raised for the first time in BOA's reply brief. Ass'n of Irritated Residents v. C & R Vanderham Dairy, 435 F.Supp.2d 1078, 1089 (E.D.Cal.2006) ( “It is inappropriate to consider arguments raised for the first time in a reply brief.”).E. Breach of Fiduciary Duty The Ar......
  • Defazio v. Hollister, Inc., No. CIV. 04-1358 WBS GGH.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 29, 2009
    ...consider the merits of this argument for the purposes of the instant motion. See Ass'n of Irritated Residents v. C & R Vanderham Dairy, 435 F.Supp.2d 1078, 1089 (E.D.Cal.2006) ("It is inappropriate to consider arguments raised for the first time in a reply brief.") (Ishii, Page 1072 Accordi......
  • Request a trial to view additional results
68 cases
  • Arnett v. Bank of America, N.A., Case No.: 3:11-cv-01372-SI
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • July 11, 2012
    ...reason" because itPage 22was raised for the first time in BOA's reply brief. Ass'n of Irritated Residents v. C & R Vanderham Dairy, 435 F. Supp. 2d 1078, 1089 (E.D. Cal. 2006) ("It is inappropriate to consider arguments raised for the first time in a reply brief.").E. Breach of Fiduciary Du......
  • Asia Vital Components Co., Ltd. v. Asetek Danmark A/S, Case No. 16-cv-07160-JST
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 15, 2019
    ..., No. 16-CV-05479-JST, 2018 WL 1070116, at *9 (N.D. Cal. Feb. 27, 2018) (citing Ass'n of Irritated Residents v. C & R Vanderham Dairy , 435 F.Supp.2d 1078, 1089 (E.D. Cal. 2006) ). Regardless, AVC's cursory argument does not appear to demonstrate any violation of Asetek's discovery obligati......
  • Arnett v. Bank of Am., N.A., Case No. 3:11–cv–01372–SI.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • July 11, 2012
    ...reason” because it was raised for the first time in BOA's reply brief. Ass'n of Irritated Residents v. C & R Vanderham Dairy, 435 F.Supp.2d 1078, 1089 (E.D.Cal.2006) ( “It is inappropriate to consider arguments raised for the first time in a reply brief.”).E. Breach of Fiduciary Duty The Ar......
  • Defazio v. Hollister, Inc., No. CIV. 04-1358 WBS GGH.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 29, 2009
    ...consider the merits of this argument for the purposes of the instant motion. See Ass'n of Irritated Residents v. C & R Vanderham Dairy, 435 F.Supp.2d 1078, 1089 (E.D.Cal.2006) ("It is inappropriate to consider arguments raised for the first time in a reply brief.") (Ishii, Page 1072 Accordi......
  • Request a trial to view additional results

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