Coalition for Clean Air, Inc., et al v. VWR International, LLC

Filing 36

ORDER REQUESTING SUPPLEMENTAL BRIEFING signed by District Judge Lawrence J. O'Neill on January 24, 2013. (Munoz, I)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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COALITION FOR CLEAN AIR, a California
1:12-CV-01569-LJO-BAM
nonprofit corporation; CENTER FOR
ENVIRONMENTAL HEALTH, a California
ORDER REQUESTING
nonprofit Corporation; ASSOCIATION OF
SUPPLEMENTAL BRIEFING
IRRITATED RESIDENTS, a California
nonprofit organization; TEAMSTERS JOINT
COUNSIL 7, an organized labor union; KEVIN
LONG, an individual,

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Plaintiffs,
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v.
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VWR INTERNATIONAL, LLC, a Delaware
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Defendants.
This case arises under the citizen suit provision of the Clean Air Act (“CAA”), 42 U.S.C.

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§ 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

17 Control District (“District”) Rule 9510, implemented and approved as part of California’s State
18 Implementation Plan (“SIP”) under the CAA, by failing to apply for an Indirect Source Review (“ISR”)
19 permit prior to obtaining approval to open and/or operate a trucking distribution facility in Visalia,
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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.

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The Court has carefully reviewed the entire record and believes that a key issue in this case is

24 whether language in Visalia Municipal Code (“VMC”) § 17.28.040A renders the Visalia Site Plan
25 Review Committee’s actions in connection with VWR’s project “discretionary” as that term is defined
26 in Rule 9510. It appears that a very similar, but not entirely identical, issue was discussed by the
27 California Court of Appeals for the Fifth Circuit in its September 14, 2012 ruling in Coalition for Clean
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Air et al. v. City of Visalia et al., Case No. F062983 (“State Court Action”).1 The status of the State

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Court Action is relevant to Defendant’s contention that this Court should abstain from hearing this

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matter under either Burford v. Sun Oil Co., 319 U.S. 315 (1943), and/or Colorado River Water

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Conservation District v. United States, 424 U.S. 800, 817 (1976). Yet, the record contains little
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information about the current status of the State Court Action.
Accordingly, the Parties are directed to file a joint status report, describing the current posture of

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the State Court Action and any anticipated future activity in that case. In particular, the Parties shall

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articulate whether interpretation of VMC § 17.28.040A is still at issue in the case, and, if so, the context

10 in which any such interpretations may be made. For example, the September 14, 2012 decision in the
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State Court Action mentioned VMC § 17.28.040A in the context of its discussion of a mandamus claim.
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Do other claims remain that may require interpretation of VMC § 17.28.040A? The joint status report
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shall not contain legal argument regarding application of the abstention doctrines noted above.
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The Parties are directed to file the joint status report, which shall be no longer than 7 pages in

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16 length, on or before January 31, 2013. If, after making reasonable attempts to resolve any disagreements,
17 the Parties cannot agree on the content of the joint status report, they are to articulate any disagreements
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therein.

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Dated:

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/s/ Lawrence J. O’Neill

January 24, 2013

UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

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The Court takes judicial notice that the California Supreme Court recently denied VWR’s petition for review of the Fifth

28 District Court of Appeals’ ruling.

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