Coal. for Clean Air, Nonprofit Corp. v. VWR Int'l, LLC

Citation922 F.Supp.2d 1089
Decision Date06 February 2013
Docket NumberNo. 1:12–CV–01569–LJO–BAM.,1:12–CV–01569–LJO–BAM.
CourtU.S. District Court — Eastern District of California
PartiesCOALITION FOR CLEAN AIR, a California nonprofit corporation; Center for Environmental Health, a California nonprofit Corporation; Association of Irritated Residents, a California nonprofit organization; Teamsters Joint Council 7, an organized labor union; Kevin Long, an individual, Plaintiffs, v. VWR INTERNATIONAL, LLC, a Delaware corporation; and Does 1–X, inclusive, Defendants.

OPINION TEXT STARTS HERE

Christina Maria Caro, Lozeau Drury LLP, Alameda, CA, Sara Hedgpeth–Harris, Law Office of Sara Hedgpeth–Harris, Fresno, CA, Richard Drury, Lozeau Drury LLP, Oakland, CA, Brent Joseph Newell, San Francisco, CA, for Plaintiffs.

Adam Johnson Thurston, Drinker Biddle & Reath LLP, Los Angeles, CA, Ryan S. Fife, Bryan Cave LLP, Santa Monica, CA, for Defendants.

ORDER RE MOTION TO DISMISS (DOC. 17); CROSS MOTION FOR SUMMARY JUDGMENT (DOC. 23); AND STAYING CASE.

LAWRENCE J. O'NEILL, District Judge.

I. INTRODUCTION

This case arises under the citizen suit provision of the Clean Air Act (“CAA”), 42 U.S.C. § 7604(a). Plaintiffs, a coalition of environmental and labor interests, allege that Defendant VWR International, LLC, (VWR), a laboratory supply distributor, violated San Joaquin Valley Air Pollution Control District (“District”) Rule 9510, implemented and approved as part of California's State Implementation Plan (“SIP”) under the CAA, by failing to apply for an Indirect Source Review (“ISR”) permit prior to obtaining approval to open and/or operate a trucking distribution facility in Visalia, California. Before the Court for decision is Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), Doc. 17, and Plaintiffs' cross motion for partial summary adjudication, Doc. 23.

Defendant filed its motion to dismiss on November 11, 2012, setting the motion for hearing on December 10, 2012. Doc. 17. The parties then stipulated to move the hearing date to December 20, 2012. Doc. 22. Plaintiffs filed an opposition to the motion, along with a cross-motion for partial summary adjudication on the issue of liability under the CAA, a statement of undisputed facts, and a request for judicial notice. Doc. 23. Defendant filed an opposition to the motion for partial summary adjudication as well as a response to the statement of undisputed fact. Doc. 31. Upon preliminary review of the parties' filings, the hearing was vacated to permit time for the Court to review thoroughly the voluminous materials. Doc. 30. Having reviewed those filings, the Court requested a supplemental joint status report on a parallel state court action. Doc. 36. The joint status report was submitted January 30, 2012. In light of the entire record, the Court is now prepared to rule on the motion to dismiss and cross motion for partial summary adjudication. The Court does not believe oral argument is necessaryto aid resolution of this request, and hereby rules on the papers pursuant to Local Rule 230(g).

II. BACKGROUND
A. The Project.

VWR is a global laboratory supply and distribution company that supplies a wide range of laboratory supplies and chemicals to pharmaceutical companies, biotech companies, and other industrial, education, and governmental facilities throughout California. Compl., Doc. 1, at ¶ 35. On or around September 2010, VWR submitted an application to the City of Visalia, seeking permission to construct a new distribution and shipping facility (the “Project”) at 8711 W. Riggin Avenue, in the City of Visalia, California, which lies within the San Joaquin Valley Air Basin. Id. at ¶¶ 33–34, 45. On September 22, 2010, the City of Visalia Site Plan Review Committee (“SPRC”) reviewed the project, directed VWR to make approximately 50 modifications to the Project, and instructed VWR to return for further review once the changes had been made. Id. at ¶ 45. Among other things, the Committee warned VWR:

If your project requires discretionary action ... Please note that the project is subject to SJVA PCD Rule 9510. The applicant is encouraged to do early indirect source modeling consultation with the Air District.

On October 14, 2010, VWR submitted a letter to the City Engineer proposing to construct 126 parking spots for the Project, requesting relief from the City's requirement of 1 parking space per 1,0002 square feet, which would have required 500 parking spaces. Id. at ¶ 46. On that same date, VWR resubmitted revised Project plans to the City. Id. On November 16, 2010, the City approved the VWR Project. Id. at ¶ 49. On December 10, 2010, the Visalia City Council voted to give VWR up to $1.5 million to pay for major street improvements necessary for the Project. Id. at ¶ 50. At no point during this process did VWR apply to the Air District for an ISR permit. Id. at ¶ 52. Project construction began in January 2011. Id. at ¶ 53. VWR commenced operations in September 2012. Id. at ¶ 55.

Prior to initiating construction, VWR received a written determination from the City that no discretionary approval would be required for the Project. Request for Judicial Notice (“RJN”), Doc. 17–2, at Ex. A.1 VWR also received a written determination from the District that because the City determined no discretionary approval was required, Rule 9510 would not apply to the Project. RJN, Ex. B.

B. Clean Air Act & State Implementation Plans.

In California, air quality is regulated under the federal Clean Air Act (“CAA”), 42 U.S.C. §§ 7401, et seq., and the California Clean Air Act (“CCAA”), Cal. Health & Safety Code, §§ 39000, et seq. Under the CAA, regulatory authority is bifurcated between the federal Environmental Protection Agency (“EPA”) and states. EPA identifies pollutants to regulate and establishes national ambient air quality standards (“NAAQS”). EPA sets NAAQS for “criteria” pollutants, including coarse particulate matter (“PM 10”), fine particulate matter (“PM2.5”), ozone, carbon monoxide, nitrogen dioxide, sulfur dioxide, and lead, and designates regions as in “attainment” or “nonattainment” of the standards. 42 U.S.C. §§ 7407, 7409. In areas designated as nonattainment for a pollutant, states are empowered to develop and submit for EPA approval state implementation plans (“SIPs”) to provide attainment, maintenance and enforcement of NAAQS within the state. SIPs must include rules and measures to demonstrate that NAAQS will be attained by dates set in the CAA. See42 U.S.C. §§ 7409, 7410(a). EPA reviews and approves SIPs, and after its approval, a SIP is enforceable by EPA and the state.

The CAA authorizes, but does not require, states to regulate indirect sources of emissions and to include indirect source review programs in their attainment plans. § 7410(a)(5)(A)(ii). Section 7410(a)(5)(C) defines “indirect source” as “a facility, building, structure, installation, real property, road, or highway which attracts, or may attract, mobile sources of pollution.” An “indirect source review program” is “the facility-by-facility review of indirect sources of air pollution, including such measures as are necessary to assure, or assist i n assuring, that a new or modified indirect source will not attract mobile sources of air pollution” that would contribute to exceeding, or prevent maintenance of, NAAQS. § 7410(a)(5)(D). “Direct emissions sources or facilities at, within, or associated with, any indirect source shall not be deemed indirect sources for the purpose” of an indirect source review program. § 7410(a)(5)(C).

In California, regulatory authority under the CCAA is bifurcated between the California Air Resources Board (“CARB”) and 35 local air districts, including the District. SeeCal. Health & Safety Code, § 39002. The CCAA authorizes CARB to set state ambient air quality standards and tailpipe emissions standard for vehicles. Id. Local air districts have “primary responsibility” to control other sources, including stationary sources (factories and oil refineries) and mobile sources through indirect and areawide source programs and transportation control measures. SeeCal. Health & Safety Code, §§ 39002, 40716, 40717. The CCAA directs local air districts to consider the “full spectrum of emissions sources” to develop attainment plans and to “focus particular attention on reducing emissions from transportation and areawide emission sources.” Cal. Health & Safety Code, §§ 40910.

C. Rule 9510.

District Rule 9510 “is designed to achieve reductions in air pollution attributable to development projects.” Nat'l Ass'n of Home Builders v. San Joaquin Valley Unified Air Pollution Control Dist., 2008 WL 4330449, *4 (E.D.Cal. Sept. 19, 2008) aff'd, 627 F.3d 730 (9th Cir.2010). The Rule applies “to any applicant that seeks to gain a final discretionary approval” for certain large development projects, including any project that will include industrial space in excess of 100,000 square feet. Rule 9510 § 2.1.

When Rule 9510 was adopted, the San Joaquin Valley was classified as nonattainment under federal and state standards for PM10, PM2.5 and ozone. PM10 and PM2.5 can be directly-emitted geologic material, including entrained road and other dust. PM 10 and PM2.5 can [also] be formed when precursor emissions, such as oxides of Nitrogen (“NOx”) and volatile organic compounds (“VOCs”) are emitted as a gas and form PM10 and PM2.5 through chemical processes. [N]ew residential and commercial development indirectly causes air pollution by attracting mobile sources and contributing increased energy use.

[ ] Rule 9510 targets indirect sources of air pollution.... [by] set[ting] target reductions for emissions associated with construction (“construction emissions”) and future operation of development projects (“operational emissions”). For construction, Rule 9510's target is to reduce PM 10 emissions by 45 percent and NOx by 20 percent as compared to emissions generated using “average” construction equipment in California. For future operation, Rule 9510's target is to...

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