Global Cmty. Monitor v. Mammoth Pac., L.P.

• Decision Date: 01 February 2017
• Docket Number: No. 2:14–cv–01612–MCE–KJN,2:14–cv–01612–MCE–KJN
• Citation: 230 F.Supp.3d 1235
• Court: U.S. District Court — Eastern District of California
• Parties: GLOBAL COMMUNITY MONITOR, a California nonprofit corporation; Laborers' International Union of North America Local Union No. 783, an organized labor union; Randal Sipes, Jr., an individual; and Russel Covington, an individual, Plaintiffs, v. MAMMOTH PACIFIC, L.P., a California Limited Partnership; Ormat Nevada, Inc., a Delaware Corporation; Ormat Technologies, Inc., a Delaware Corporation; and DOES I–X, inclusive, Defendants.

230 F.Supp.3d 1235

GLOBAL COMMUNITY MONITOR, a California nonprofit corporation; Laborers' International Union of North America Local Union No. 783, an organized labor union; Randal Sipes, Jr., an individual; and Russel Covington, an individual, Plaintiffs,

v.MAMMOTH PACIFIC, L.P., a California Limited Partnership; Ormat Nevada, Inc., a Delaware Corporation; Ormat Technologies, Inc., a Delaware Corporation; and DOES I–X, inclusive, Defendants.

No. 2:14–cv–01612–MCE–KJN

United States District Court, E.D. California.

Signed February 1, 2017

Filed February 2, 2017

Douglas Jonathan Chermak, Richard Drury, Meredith Segan Wilensky, Lozeau Drury LLP, Oakland, CA, for Plaintiffs.

Emily C. Schilling, PHV, Holland & Hart LLP, Washington, DC, Matthew Bradley Hippler, Hale Lane Peek Dennison and Howard, Reno, NV, Steven G. Jones, PHV, Holland & Hart LLP, Salt Lake City, UT, for Defendants.

AMENDED MEMORANDUM AND ORDER¹

MORRISON C. ENGLAND, JR., UNITED STATES DISTRICT JUDGE

Plaintiffs Laborers' International Union of North America Local Union No. 783, Randal Sipes, Jr., and Russel Covington filed a citizen suit pursuant to section 304(a) of the federal Clean Air Act ("CAA"), 42 U.S.C. § 7604, which allows any person to bring a lawsuit in federal court against any person who violates an "emission standard or limitation."²

Presently before the Court are four motions: (1) Plaintiffs' Motion for Partial Summary Judgment, ECF No. 75; (2) Defendants' Motion for Summary Judgment, ECF No. 82; (3) Defendants' Motion to Exclude, ECF No. 90; and (4) Defendants' Motion for Leave to File Surreply, ECF No. 100. For the reasons that follow, Defendants' Motion for Summary Judgment is GRANTED. However, Defendants' Motion for Leave to File Surreply is DENIED, and the Defendants' counsel is directed to pay a sanction of $1,500 for making a frivolous filing, continuing to use lengthy footnotes, and ignoring page limits despite the Court's prior warning. Furthermore, in light of the disposition of Defendants' Motion for Summary Judgment, Plaintiffs' Motion for Partial Summary Judgment and Defendants' Motion to Exclude are DENIED AS MOOT.³

BACKGROUND

Plaintiffs' Complaint asserts eight causes of action against Defendants Mammoth Pacific, L.P., Ormat Technologies, Inc., and Ormat Nevada, Inc., the owners and operators of several geothermal plants located in the Great Basin Valleys Air Basin. Three of the plants—(1) Mammoth Pacific I ("MP–I"), which is made up of MP–I East and MP–I West; (2) Mammoth Pacific II ("MP–II"); and (3) Pacific Lighting Energy Systems Unit I ("PLES–I")—are operational. Another plant, M–1, is a proposed replacement plant for MP–I that has thus far only received local land use permits.

At the plants, Defendants use hot geothermal water pumped from deep underground to heat volatile organic compounds ("VOCs"), which in turn spin turbines to generate electricity. The facilities emit VOCs (in the form of fugitive emissions of either n-pentane or isobutene) through valves, flanges, seals, or other unsealed joints in facility equipment. VOCs combine with nitrogen oxides to form ozone in the atmosphere. Ozone is a criteria air pollutant regulated by the CAA, and thus VOCs are regulated as ozone precursors. According to the United States Environmental Protection Agency ("EPA"), breathing ground-level ozone can result in a number of negative health effects, including induction of respiratory symptoms, decrements in lung function, and inflammation of airways. Plaintiffs are individuals and an organization with members who live, work, and recreate in direct vicinity of the plants.

The Great Basin Unified Air Pollution Control District (the "Air District") is the state agency charged with developing air regulations for Mono, Inyo and Alpine Counties. The Air District has established rules and regulations to reduce the emission of ozone-forming pollutants. On August 20, 1979, the Air District promulgated Rules 209–A and 209–B. Rule 209–A prohibits the Air District from issuing an authority to construct ("ATC") permit for any new stationary source or modification⁴ to a stationary source that emits 250 pounds per day or more of VOCs unless the facility obtains emissions offsets and installs the best available control technology ("BACT"). Emissions offsets are reductions from other facilities equal to the amount of increased emissions and BACT is advanced pollution control technology that dramatically reduces pollution. Rule 209–B prohibits the Air District from issuing a permit to operate ("PTO") for any new or modified stationary source to which Rule 209–A applies unless the owner or operator of the source has obtained an ATC permit granted pursuant to Rule 209–A. In combination, these rules ensure that all required emissions offsets will be implemented at start-up and maintained throughout the source's operational life. Rules 209–A and 209–B were approved by the EPA as part of California's State Implementation Plan ("SIP") on June 18, 1982, making the regulations fully enforceable federal law. See Safe Air for Everyone v. U.S. EPA , 488 F.3d 1088, 1096–97 (9th Cir. 2007).

Plaintiffs' Complaint alleges that Defendants violated both Rules 209–A and 209–B. With respect to the existing plants, Plaintiffs allege that while originally separately permitted as four plants in the late 1980s, in 2010 Defendants applied for and obtained PTOs from the Air District that authorize combined emissions limits for MP–I East and MP–I West as a single source and for MP–II and PLES–I as a single source. Each single source was permitted to emit up to 500 pounds per day of fugitive VOC emissions—double the limit under Rule 209–A—without receiving ATC permits that required installing BACT and obtaining emissions offsets. Additionally, Plaintiffs allege that in 2013, the Air District issued ATC permits for a modification of MP–I without requiring Defendants to install BACT or obtain emissions offsets.

Plaintiffs' Complaint also alleges that Defendants have operated the three existing geothermal plants for over twenty years as a single stationary source without applying for the permits required by Rules 209–A and 209–B.⁵ Plaintiffs contend that the complex should be viewed as a single stationary source because the plants are owned and operated by the same company, located on adjacent lands, and share a single geothermal wellfield, a common control room, common pipes that carry geothermal liquid to and from the wellfield, and other common facilities. Plaintiffs request that the Court issue a preliminary and permanent injunction requiring Defendants to cease and desist from any operation of the existing plants until Defendants install BACT and obtain emissions offsets.

While Plaintiffs originally challenged the proposed M–1 facility's permitting and sought an injunction to halt construction, they then conceded that the Court does not have jurisdiction to consider these claims since the Air District has yet to issue permits to Defendants for this plant. ECF No. 21, at 8. Accordingly, the Court dismissed Plaintiffs' sixth and seventh causes of action, which pertain to the M–1 facility. ECF No. 27. The Court also dismissed Plaintiffs' first through fifth causes of action for failure to state a claim under Federal Rule of Civil Procedure ("Rule") 12(b)(6).

The first cause of action was premised on the 2013 modification of the MP–I plant, alleging that the modification should have triggered BACT requirements under Rule 209–A. However, the modification reduced the plant's emissions and therefore did not result in the "net increase in emissions of 250 or more pounds" required under Rule 209–A(B)(2) before a BACT requirement is imposed. The second, third, fourth, and fifth causes of actions were based on the 2010 combining of emissions limits for MP–I East and MP–I West as a single source and for MP–II and PLES–I as a single source. Because combining the limits amounted to nothing more than an administrative change, no modification occurred that would have triggered BACT requirements. Furthermore, even if combining emission limits constituted a modification under Rule 209–A, it could not possibly have caused a "net increase in emissions of 250 or more pounds" and again Rule 209–A would not have imposed a BACT requirement.

All that remains pending before the Court is Plaintiffs' Eighth Cause of action, which alleges all four plants should be considered a single source. Because the plants were all permitted individually when constructed, Plaintiffs contend that Defendants are in violation of Rule 209–A and should have been required to install a BACT.

STANDARD

The Federal Rules of Civil Procedure provide for summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex , 477 U.S. at 325, 106 S.Ct. 2548.

Rule 56 also allows a court to grant summary judgment on part of a claim or defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) ("A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought."); see also Allstate Ins. Co. v. Madan , 889 F.Supp. 374, 378–79 (C.D. Cal. 1995). The standard that applies to a motion for partial summary judgment is the same as that which applies to a motion for summary judgment. See Fed. R. Civ. P. 56(a) ; State of Cal. ex rel. Cal. Dep't of Toxic Substances Control v. Campbell , 138 F.3d 772, 780 (9th Cir. 1998) (applying summary judgment standard to motion for summary adjudication).

In a summary judgment motion, the moving party always bears the initial responsibility of informing the court of the basis for the motion and identifying the...