Northwest Environmental Defense v. Owens Corning

• Decision Date: 08 June 2006
• Docket Number: Civil No. 04-1727-JE.
• Citation: 434 F.Supp.2d 957
• Parties: NORTHWEST ENVIRONMENTAL DEFENSE CENTER, et al., Plaintiffs, v. OWENS CORNING CORPORATION, Defendant.
• Court: U.S. District Court — District of Oregon

434 F.Supp.2d 957

NORTHWEST ENVIRONMENTAL DEFENSE CENTER, et al., Plaintiffs, v. OWENS CORNING CORPORATION, Defendant.

Civil No. 04-1727-JE.

United States District Court, D. Oregon.

June 8, 2006.

COPYRIGHT MATERIAL OMITTED

Melissa Ann Powers, Allison Michelle LaPlante, Pacific Environmental Advocacy Center, Portland, OR, Attorneys for Plaintiffs.

Lynne M. Paretchan, Thomas E. Lindley, Jeffrey C. Dobbins, Perkins Coie, LLP, Portland, OR, Paul S. Lewandowski, Owens Corning Corporation, Toledo, OH, Attorneys for Defendant.

OPINION AND ORDER^*

JELDERKS, United States Magistrate Judge.

Plaintiffs Northwest Environmental Defense Center, Oregon Center for Environmental Health, and Sierra Club bring this action against defendant Owens Corning Corporation.

Plaintiffs contend that Owens Corning is constructing a polystyrene foam insulation manufacturing facility in Gresham, Oregon, with the potential to emit more than 250 tons per year of various harmful gases, without having obtained a required preconstruction permit, in violation of Section 165(a) of the Clean Air Act, 42 U.S.C § 7475(a). Plaintiffs contend further that "this unpermitted construction has violated and is violating Part C of Title I of the Act, 42 U.S.C. §§ 7470-7479, and implementing regulations, 40 C.F.R. § 52.21[and] § 51.166" and the Major New Source Review provisions of the Oregon State Implementation Plan, codified in the Oregon Administrative Code at OAR 340-224-0010 to 340-224-0100.

Plaintiffs also "allege that Owens Corning's unpermitted construction has violated and is violating provisions of the Oregon" [State Implementation Plan] which require any facility that will emit more than 100 tons per year of a regulated air pollutant to obtain an Air Contaminant Discharge Permit ... prior to construction[,] OAR 340-216-0020, along with "the written notice and approval provisions of the Oregon SIP, OAR 340-210-0215 and OAR 340-210-0240." First Amended Compl., ¶ 3.

Plaintiffs seek declaratory and injunctive relief, civil penalties, plus their costs and attorney fees.

Defendant moves to dismiss the entire complaint on the ground that Plaintiffs lack standing. In the alternative, Defendant moves to strike those portions of each claim that seek more than one day's civil penalties. Finally, Defendant moves to dismiss Plaintiffs' First Claim on the ground that Plaintiffs can state a claim, if any, only under state rather than federal law. Each of the foregoing motions is denied.

Background

Gresham is a suburb of Portland, Oregon. The principal gas at issue is 1-chloro-1, 1-difluoroethane, a hydrochlorofluorocarbon also known as HCFC-142b. Plaintiffs contend HCFC-142b is "a potent greenhouse gas and ozone-depleting substance." They fear emissions from Defendant's new facility in Gresham will heighten the risk that members of the Plaintiff organizations will contract certain diseases associated with elevated levels of ultraviolet radiation subsequent to ozone depletion, and that other diseases afflicting their members will be exacerbated, and that the environmental resources used and enjoyed by Plaintiffs will be harmed by ozone depletion.

Plaintiffs cite lupus as an example of a chronic condition that often results in heightened photosensitivity, and assert that "[a]t least one member of the Plaintiff organizations" presently has that condition. Plaintiffs also allege that depletion of stratospheric ozone will result in greater amounts of radiation reaching the earth's surface in Oregon. They represent that such increases in radiation have "been linked to a higher incidence of certain skin cancers, ailments such as lupus, cataracts, suppression of the human immune system, damage to crops and aquatic organisms, and increased formation of ground-level ozone." First Amended Compl., ¶ 47.

Plaintiffs further allege that emissions from Defendant's Gresham facility will contribute to global warming, which in turn will harm environmental resources in Oregon used or enjoyed by members of the Plaintiff organizations.¹ Plaintiffs additionally allege that the facility under construction in Gresham will emit particulate matter, carbon monoxide, and volatile organic compounds that Plaintiffs fear will harm the health of their members and the local environment that they utilize.²

After this action was commenced, the parties entered into a stipulation. Plaintiffs agreed not to seek a preliminary injunction, and Defendant agreed to halt construction pending issuance of a state Air Contaminant Discharge Permit for the facility. The case is not moot, however. At a minimum, the parties still dispute whether construction was undertaken without one or more required permits, whether Defendant's facility is subject to those permit requirements, whether civil penalties should be imposed, and, if so, the amount and disposition of those penalties.

Discussion

The Clean Air Act has been described as "without a doubt the most complex environmental regulatory scheme," one "that is bewildering at times to even the most experienced environmental lawyers." Susan Mandiberg & Susan Smith, CRIMES AGAINST THE ENVIRONMENT § 4-2(a) (1997). The present case focuses upon one narrow corner of the Act, the preconstruction review process mandated by Part C of Title I of the Clean Air Act.

Two general principles furnish the backdrop for the present action. First, Congress has enlisted the states as partners in the national effort to curb air pollution. Each state is responsible for developing and periodically updating a State Implementation Plan ("SIP"), which is subject to approval by the federal Environmental Protection Agency. The states play a major role in enforcing SIPs.

Second, given the high cost of retrofitting existing emissions sources with state-of-the-art control technologies, Congress has focused its efforts upon curbing emissions from new sources. The latter have more flexibility as to location and design of control equipment than do existing sources. Consequently, construction of new sources of emissions usually triggers application of more stringent levels of control under the Act. ENVIRONMENTAL LAW HANDBOOK, p. 243 (18th ed.2005).

42 U.S.C. § 7475 mandates preconstruction review and approval of major new stationary sources of air pollution, such as factories. A major stationary source is "any stationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant. . . ." 42 U.S.C. § 7602(j).

The extent of the preconstruction review, and the substantive requirements that must be met, depend in part on the nature of the substance being emitted and whether the proposed new source is located in an "attainment area," i.e., a region that is in compliance with certain air quality standards, or is situated in a "non-attainment area."

New stationary sources located in attainment areas are subject to the prevention of significant deterioration ("PSD") permit program if the source has the potential to emit at least 250 tons per year ("tpy") of a regulated pollutant, or at least 100 tpy of certain specified pollutants. 40 C.F.R. § 52.21(b)(1).

To receive a permit, the owner or operator of the proposed new source must show, inter alia, that the source (1) will comply with ambient air quality levels designed to prevent deterioration of air quality (the PSD increments), and (2) will employ best available control technology ("BACT") for each pollutant regulated under the Act that it will emit in significant amounts. 42 U.S.C. § 7475(a).

Plaintiffs allege that Defendant originally represented to the Oregon Department of Environmental Quality that the proposed Gresham facility had the potential to emit 283 tpy of HCFC-142b. Plaintiffs contend this quantity is sufficient to invoke the preconstruction review process, and that Defendant unlawfully commenced construction without first obtaining the necessary permit. After this action was filed, Defendant allegedly sought to retract its earlier statements, claiming the facility actually had the potential to emit less than 250 tpy of HCFC-142b. Plaintiffs dispute the accuracy of that lower figure.

Defendant's Motion to Dismiss for Lack of Standing

Defendant contends this action must be dismissed because the Plaintiff organizations lack standing to prosecute the claims alleged in the Complaint.

An association has standing to bring suit on behalf of its members when the members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), citing Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).

The interests asserted in this action are germane to the purposes of the Plaintiff organizations. Neither the claims asserted nor the relief requested requires participation by the individual members of these organizations. Accordingly, whether Plaintiffs have standing to prosecute the present action turns on whether the members of the Plaintiff organizations would have standing to sue in their own right.

The question of standing "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The "constitutional limitations" are those that are necessary to satisfy Article III's requirement of a "case" or "controversy," without which this court lacks jurisdiction. By contrast, "prudential limitations" are "judicially self-imposed limits on the exercise of federal jurisdiction," Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), that are "founded in...