United States v. Blue Lake Power, LLC

Decision Date11 October 2016
Docket NumberCase No. 16–cv–00961–JD
Parties UNITED STATES of America, et al., Plaintiffs, v. BLUE LAKE POWER, LLC, Defendant.
CourtU.S. District Court — Northern District of California

Lori Jonas, Environmental Enforcement Section, U.S. Department of Justice, Sheila McAnaney, U.S. Department of Justice, Washington, DC, Nancy Diamond, Law Offices of Nancy Diamond, Arcata, CA, Marc Aaron Shapp, Justin Ryan Panitchpakdi, Hunsucker Goodstein PC, Lafayette, CA, Anne Elizabeth Lynch, Michael David Goodstein, Hunsucker Goodstein PC, Washington, DC, Adam Devoe, Lewis Roca Rothgerber Christie LLP, Denver, CO, Gerrit Warren Bleeker, Lewis Roca Rothgerber Christie, LLC, Glendale, CA, for Plaintiffs.

Jane Ellen Luckhardt, Day Carter Murphy LLP, Sacramento, CA, for Defendant.

ORDER RE: MOTION TO INTERVENE

Re: Dkt. No. 17

JAMES DONATO, United States District Judge

The Blue Lake Rancheria Tribe ("Tribe") asks to intervene in the pending civil environmental enforcement action brought by the United States and the North Coast Unified Air Quality Management District ("District") against Defendant Blue Lake Power, LLC. Dkt. No. 17. On September 8, 2016, the Court heard argument on the Tribe's motion and now grants it in part.

BACKGROUND

This environmental enforcement action concerns a biomass-fired electric generating plant ("Facility") located in Blue Lake, Humboldt County, California. Dkt. No. 1 ¶¶ 1, 22. The Facility was built in 1984 and began commercial operations in 1987. Id. ¶ 64. Between 1999 and 2008, the Facility was idle for what appears to be mainly economic reasons. See id. ¶¶ 72–74. Defendant Blue Lake Power acquired the Facility in 2008 and undertook substantial physical modifications to restart it. Id. ¶ 77. Following the reconstruction, the Facility resumed operations on April 30, 2010 and remained in operation until May 2015. Id. ¶ 80; Dkt. No. 17 at 3. The enforcement action is centered on the preconstruction work and subsequent operation. The plaintiff government agencies allege that Blue Lake Power violated the Clean Air Act ("CAA") and accompanying state regulations during those stages. Dkt. No. 1 ¶¶ 1, 64–83.

The regulatory background for this case is complex. The CAA was enacted to protect and enhance the quality of the nation's air to promote the public health and welfare. 42 U.S.C. § 7401(b)(1). In 1970, Congress amended the CAA to "guarantee the prompt attainment and maintenance of specified air quality standards." Alaska Dep't of Envtl. Conservation v. EPA , 540 U.S. 461, 469, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004) (citation omitted). To accomplish that end, the amendments required that the Environmental Protection Agency ("EPA") establish national ambient air quality standards ("NAAQS") for air pollutants that may cause or contribute to air pollution reasonably anticipated to endanger public health or welfare. 42 U.S.C. §§ 7408(a), 7409(a), (b).

After indications that "[m]erely setting emissions limits" failed to improve air quality in areas that already achieved the minimum standards, Congress again amended the CAA in 1977 to establish the Prevention of Significant Deterioration ("PSD") Program. Sierra Club v. Otter Tail Power Co. , 615 F.3d 1008, 1011 (8th Cir. 2010) ; 42 U.S.C. §§ 7470 –7492. Under the PSD program, no "major emitting facility" may be constructed or modified without obtaining a permit setting forth emission limitations and utilizing "best available control technology" ("BACT") for each pollutant subject to regulation. 42 U.S.C. §§ 7475(a)(1),(4). The PSD program is "primarily implemented by the states through ‘state implementation plans' (SIPs)." Otter Tail , 615 F.3d at 1011. Each state is required to adopt and submit to the EPA for approval a SIP that contains a PSD program, and regulations to prevent the significant deterioration of air quality. 42 U.S.C. §§ 7410, 7471 –75 ; Dkt. No. 1 ¶¶ 31–33.

The EPA approved the District's PSD rules into the California SIP in 1985. Dkt. No. 1 ¶ 34 (citing 50 Fed. Reg. 30,941 (July 31, 1985) and 50 Fed. Reg. 19,529 (May 9, 1985) ). The applicable PSD regulations governing the Facility are found in these amendments and the federally-approved District PSD Rules, including Rules 130, 200, 220, 230, and 240. Id. ; Dkt. No. 21 at 4.

The complaint alleges that Blue Lake Power's failure to obtain a proper preconstruction permit for the work between 20082010 and subsequent operation of the Facility violates the PSD requirements of the CAA and the District's regulations, as incorporated into the California SIP. Dkt. No. 1 ¶¶ 85–92. These allegations cap a considerable period of regulatory back-and-forth between the parties. Between April 2010 and May 2011, Blue Lake Power received several Notices of Noncompliance and entered into a settlement agreement with the District for civil penalties on May 20, 2011. Dkt. No. 17 at 3. In 2014, the EPA issued a Finding and Notice of Violation against Blue Lake Power. Id. Following this notice, the United States and Blue Lake Power began negotiating a consent decree. Dkt. No. 21 at 5. The District joined negotiations in December 2014. Id. In September 2015, the Tribe requested and was granted a meeting with the EPA in Washington, D.C. Id. at 6. The Tribe's concerns focused on environmental and health impacts from operation of the Facility. See Dkt. No. 17 at 2–5. In February 2016, the United States and the District filed this civil environmental enforcement action. Dkt. No. 1. Along with the filing of the complaint, the government agencies lodged a proposed decree and published the proposal for public comments. Dkt. No. 21 at 7. After participating in the public comments period, the Tribe met again on August 2, 2016 with the DOJ and EPA to discuss the proposed decree, and the health and safety concerns about restarting the Facility. Id. at 8. The Tribe moved to intervene on August 3, 2016. Dkt. No. 17. After oral argument on the motion to intervene, the United States filed a motion to enter a revised consent decree on September 22, 2016. Dkt. No. 46.

DISCUSSION

The Tribe seeks to intervene with a complaint against defendant Blue Lake Power for violations of the CAA, California nuisance, trespass, and negligence laws, Blue Lake Rancheria Air Quality Ordinance, and also seeks equitable indemnification. Dkt. No. 17–1. The Tribe moves for intervention as a right, or in the alternative, by permission. See Dkt. No. 17 at 2; Fed. R. Civ. P. 24. The government plaintiffs "do not contest that the Tribe has a right to intervene in this matter under Federal Rule of Civil Procedure 24(a) and Section 304(b) of the Act" to state a CAA claim. Dkt. No. 21 at 9. Blue Lake Power opposes any intervention whatsoever on grounds that the statute of limitations has run for the Tribe's claims related to the preconstruction permit requirement, and the right to intervene under the Clean Air Act does not include the right to bring state and tribal law claims. See Dkt. No. 22 at 3, 6. If intervention is allowed, Blue Lake Power joins the agencies in asking that it be limited to the CAA claim. Id. at 8.

I. Rule 24 Timeliness

On a timely motion, the Court must permit anyone to intervene who "is given an unconditional right to intervene by a federal statute." Fed. R. Civ. P. 24(a)(1). The CAA provides such a right. When a civil enforcement action by the EPA against an alleged CAA violator is already pending in federal court, no citizen suit may be commenced against the violator. 42 U.S.C. § 7604(b)(1)(B). Instead, in any such federal court action, any person may intervene as a matter of right. Id. ; see also United States v. Pacific Gas & Elect. , 776 F.Supp.2d 1007, 1016–17 (N.D. Cal. 2011).

The timeliness of exercising a procedural right to intervene is evaluated under three factors: (1) the stage of the proceedings, (2) the prejudice to the parties, and (3) the reason for and length of the delay. United States v. Oregon , 913 F.2d 576, 588 (9th Cir. 1990). All of these factors are met here. The Tribe sought intervention at the early stage of the proceedings before the complaint had been answered, the proposed consent decree had been entered, or substantive proceedings had occurred. Dkt. No. 17 at 7. No prejudice attaches because the Tribe had participated in the administrative process and voiced concerns about the decree, and in any event the plaintiffs agree that the Tribe has a right under the CAA right to intervene. Id. at 8; see Center for Biological Diversity v. U.S. Fish & Wildlife Service , No. 15–cv–05754–JST, 2016 WL 1394355, at *2 (N.D. Cal. Apr. 7, 2016). Consequently, the motion to intervene is timely under Rule 24(a).

II. Statute Of Limitations

The CAA's citizen suit provision allows parties to sue for any repeated or currently ongoing violation of any "an emission standard or limitation under this chapter." 42 U.S.C. § 7604(a)(1). An "emission standard or limitation under this chapter" includes "any ... standard, limitation, or schedule established under any permit issued ... under any applicable State implementation plan approved by the [EPA] Administrator, any permit term or condition, and any requirement to obtain a permit as a condition of operations." 42 U.S.C. § 7604(f)(4). For the citizen suit to be timely, the Tribe "must identify (1) a standard or limitation that [Blue Lake Power] violated or (2) any required permit that it failed to obtain, within five years of bringing this suit." National Parks Conservation Ass'n, Inc. v. Tennessee Valley Authority , 480 F.3d 410, 418 (6th Cir. 2007) ; 28 U.S.C. § 2462.

Blue Lake Power argues that the Tribe's relief under the CAA is time barred because its failure to obtain the preconstruction Authority to Construct ("ATC") permit occurred more than five years ago. Dkt. No. 22 at 3–6. But the causes of action related to the preconstruction permit are only a portion of the Tribe's claims under the CAA and Blue Lake Power has not argued that the "only alleged violation" arises from this...

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