[NEWS] California Biomass Facility Says Tribe Trying to Derail Clean Air Act Lawsuit

– by Christine Powell, November 9, 2016, Law 360


Blue Lake Power (Shaun Walker)

Blue Lake Power LLC told a federal court on Tuesday that the Blue Lake Rancheria Tribe was attempting to derail and complicate a lawsuit by the federal government and an air quality district that accuses the company of violating the Clean Air Act at a California biomass-fired electricity plant.

The tribe has filed an intervenor complaint in the dispute, which was brought by the federal government and the North Coast Unified Air Quality Management District against BLP in February, seeking injunctive relief and civil penalties for alleged CAA violations at the plant.

But BLP argued that the tribe disregarded the court’s order allowing it to intervene in the case — an order that limited the claims the tribe could bring to those that paralleled the ones asserted by the agencies — by including in its intervenor complaint a request for a temporary restraining order.

As such, BLP asked the court to strike that portion of the tribe’s intervenor complaint, saying that doing so would avoid the expenditure of time and money on temporary restraining order proceedings and prevent the nature of the case from being substantially altered.

“The tribe’s TRO request is just another example of how the tribe is improperly seeking to derail and otherwise expand and complicate this case,” the company’s motion said. “In addition to the TRO request, the tribe has also propounded untimely, improper discovery requests on the various parties, placing further burdens and expenses on the parties.”

The motion comes just one day after the tribe argued that a proposed consent decree between the U.S., the air quality district and BLP is not fair, adequate, reasonable or in the public interest and that the court should therefore reject it.

The tribe claimed that the terms of the proposed deal give BLP a “license to pollute” and operate in a manner that harms the public, while allowing the company to retain nearly all of the economic benefits associated with its failure to install certain pollution control equipment.

In its intervenor complaint, the tribe claimed that BLP undertook construction at the plant between 2008 and 2010, which resulted in significant increases in carbon monoxide and nitrogen oxide emissions and was done without first obtaining proper permits.

BLP had begun construction and modification of the plant without installing the best available control technology for CO and NOx emissions, according to the tribe’s intervenor complaint.

The tribe’s attorney, Michael D. Goodstein of Hunsucker Goodstein PC, has filed a letter seeking to compel production of field notes from the federal government’s recent inspection of the facility.

Sheila McAnaney of the U.S. Department of Justice, who is representing the government in the dispute, has responded that it already produced “all documentation” of an Oct. 13 inspection of the plant, which included pictures, a photo log and two documents.

Then, “on Oct. 28, 2016, the United States produced eight pages of field notes taken by the EPA inspector during the inspection,” McAnaney wrote. “Therefore, the tribe’s October 24th request that this court compel the United States’ production of such documents is moot.”

Meanwhile, counsel for the air quality district and BLP, which were named alongside the federal government in the tribe’s attempt to compel the notes, have also filed letters in opposition to the request.

Representatives for the parties did not respond immediately to requests for comment on Wednesday.

The federal government is represented by Sheila McAnaney of the U.S. Department of Justice.

The North Coast Unified Air Quality Management District is represented by Nancy Diamond of the Law Offices of Nancy Diamond.

BLP is represented by Jane Ellen Luckhardt of Day Carter Murphy.

The tribe is represented by Marc A. Shapp, Justin R. Panitchpakdi, Michael D. Goodstein and Anne E. Lynch of Hunsucker Goodstein PC and Adam DeVoe of Lewis Roca Rothgerber Christie LLP.

The case is U.S. et al. v. Blue Lake Power LLC, case number 3:16-cv-00961, in the U.S. District Court for the Northern District of California.

READ MORE at Law 360

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