Association of Irritated Residents v. Owens-Illinois, Inc.

Filing 40

ORDER Approving Consent Decree, signed by District Judge Dale A. Drozd. CASE CLOSED.(Maldonado, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ASSOCIATION OF IRRITATED
RESIDENTS,
Plaintiff,

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No. 1:19-cv-01707-DAD-JLT

ORDER APPROVING CONSENT DECREE
v.
(Doc. No. 39)
OWENS-ILLINOIS, INC., et al.,
Defendants.

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This matter is before the court on the parties’ joint request to approve the consent decree,

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filed on June 14, 2021. (Doc. No. 39.) Having reviewed and considered the submissions of the

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parties, the court determines this matter is suitable for resolution without oral argument. See L.R.

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230(g). For the reasons set forth below, the court will grant the parties’ joint request and approve

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the consent decree.

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This suit arises from a complaint for declaratory and injunctive relief and civil penalties

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pursuant to the citizen suit enforcement provision of the Federal Clean Air Act, 42 U.S.C.

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§§ 7401, et seq. (“Clean Air Act” or “CAA”). (Doc. No. 19.) Plaintiff Association of Irritated

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Residents (“AIR”) is a California non-profit corporation. (Id. at ¶ 6.) Defendant Owens-

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Brockway Glass Container, Inc., is a Delaware corporation registered in California that owns and

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operates a glass manufacturing plant in Tracy, California. (Id. at ¶ 8.) Defendant Owens-Illinois,
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Inc., was the parent corporation of defendant Owens-Brockway Glass Container, Inc. until it

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declared bankruptcy in January 2020. (Id. at ¶ 9.) Plaintiff alleges that defendant Owens-Illinois,

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Inc., is not responsible for the glass manufacturing operations conducted by defendant Owens-

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Brockway Glass Container, Inc. (Id.)

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Prior to filing suit, plaintiff issued a sixty-day notice letter on August 27, 2019 to

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defendant and state and federal agencies to inform them of defendant’s alleged violations of the

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CAA, the California State Implementation Plan, and the facility’s permit under Title V of the

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CAA. (Id. at ¶ 1, 4.) Neither the EPA nor the State of California commenced an action within

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sixty days regarding the alleged violations, thus permitting plaintiff to file suit in this court. See

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42 U.S.C. § 7604(b).1 On December 6, 2019, plaintiff filed a complaint in this action, and then

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on June 9, 2020 (Doc. No. 1), plaintiff filed a first amended complaint alleging that defendant

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Owens-Brockway Glass Container, Inc. has bypassed the control equipment, exceeded the

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opacity emissions limits, and exceeded the carbon monoxide emissions limit at one or more of its

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glass melting furnaces in violation of defendant’s Title V permit. (Doc. No. 19 at ¶¶ 26–49.)

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On April 29, 2021, the parties filed a notice of settlement stating that they reached a

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proposed consent decree resolving the claims in this action. (Doc. No. 37.) On June 10, 2021,

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the United States Department of Justice, Environmental and Natural Resources Division (“United

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States”) provided to counsel of record a letter stating that it reviewed the proposed consent decree

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in this action and does not object to its entry by the court. (See Doc. No. 39, Ex. B.) On June 14,

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2021, the parties filed a request for entry of the proposed consent decree. (Doc. No. 39.)

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As part of the proposed consent decree, defendant is required to select and retain an

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independent, qualified third-party expert or consultant to conduct a root-cause analysis. (Id. at

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¶¶ 22–29.) Defendant is also required to bear all costs for retaining and compensating the expert

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in accordance with the proposed consent decree. (Id. at ¶ 33.) If that expert identifies any root

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The Clean Air Act explicitly “allows any person to bring a lawsuit in federal court against any
person who violates an ‘emission standard or limitation.’” Glob. Cmty. Monitor v. Mammoth
Pac., L.P., No. 2:14-cv-01612-MCE, 2015 WL 2235815, at *1 (E.D. Cal. May 11, 2015) (citing
42 U.S.C. § 7604); see also id. at *1 n.1 (defining “emission standard or limitation”).
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cause or causes of the issues alleged in the complaint,2 then the expert is to attempt to identify and

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recommend corrective actions that defendant Owens-Brockway Glass Container, Inc. may take to

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reduce or eliminate the occurrence of similar permit deviations in the future. (Id. at ¶ 24.) The

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expert is to prepare a report of the results of the root-cause analysis and any corrective actions

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recommended, if applicable within ninety days of the date that the expert is retained. (Id.

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at ¶¶ 25–36.) Within ninety days after the parties receive the report, defendant is required to

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determine the cost of implementing the corrective actions recommended, if any, and defendant

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then is to notify AIR of those costs and how those corrective actions along with any other

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corrective actions defendant has identified are to be implemented. (Id. at ¶ 29.) The proposed

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consent decree outlines the range of possible cost permutations and outlines how proposed actions

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are to be prioritized. (Id.) Defendant is required to complete the corrective actions within a

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commercially reasonable amount of time and thirty days after completion, defendant is to notify

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and submit to plaintiff a document evincing completion. (Id. at ¶ 32.)

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Additionally, the proposed consent decree provides that defendant will make a payment of

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$30,000.00 to the Rose Foundation for Communities and the Environment, which will be used for

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projects aimed at reducing air pollution and the impact of air pollution in the San Joaquin Valley.

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(Id. at ¶ 34.) Defendant must pay $120,000.00 to plaintiff as a settlement of plaintiff’s claims for

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investigation fees and costs, expert and consultant fees and costs, reasonable attorneys’ fees, and

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other costs incurred as a result of investigating and filing this lawsuit as well as negotiating a

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resolution. (Id. at ¶ 35.) Defendant must also pay a one-time total of $10,000.00 as a settlement

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for plaintiff’s future claims for investigation fees and costs, expert and consultant fees and costs,

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reasonable attorneys’ fees, and anticipated costs to be incurred for monitoring defendant’s

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compliance with the proposed consent decree. (Id. at ¶ 35.)

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“A consent decree is ‘essentially a settlement agreement subject to continued judicial

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policing.’” United States v. Oregon, 913 F.2d 576, 580 (9th Cir. 1990) (quoting Williams v.

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The consent degree specifies that these deviations include “all instances where AIR alleged that
[defendant] bypassed the pollution control equipment, all opacity exceedances, and all
exceedances of carbon monoxide at the Facility occurring on or after August 27, 2014.” (Doc.
No. 39 at 8.)
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Vukovich, 720 F.2d 909, 920 (6th Cir. 1983)). Thus, before approving a consent decree, a district

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court must independently determine that the proposed agreement is “fundamentally fair, adequate,

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and reasonable” and “conform[s] to applicable laws.” Id.; see also Arizona v. City of Tucson, 761

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F.3d 1005, 1010–14 (9th Cir. 2014). “[T]he district court must balance several factors, including

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but not limited to: strength of the plaintiffs’ case; risk, expense, complexity and possible duration

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of continued litigation; relief offered in settlement; extent of discovery already completed; stage

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of proceedings; experience and views of counsel; governmental participation; and reaction of the

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class members.” Davis v. City & County of San Francisco, 890 F.2d 1438, 1445 (9th Cir. 1989)

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(citing Officers for Justice v. Civil Serv. Comm’n of City & Cnty. of S.F., 688 F.2d 615, 625 (9th

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Cir. 1982)). Where a government agency is involved in the negotiation of the proposed consent

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decree, there is a presumption in favor of the decree’s enforceability, and courts should pay

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deference to the agency’s judgment. See S.E.C. v. Randolph, 736 F.2d 525, 529 (9th Cir. 1984).

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Here, the court concludes that this consent decree will provide substantial relief to the

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parties. The consent decree as proposed is the product of a fair arms-length negotiation process

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and is fair, reasonable, and adequate, and not illegal, collusive, or against the public interest.

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Though a government agency was not involved in the negotiation of the proposed consent decree,

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the United States’ comments regarding and non-opposition to the parties’ request for the court’s

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approval further indicate that the proposed consent decree is an appropriate resolution of this

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case. See Pa. Env’t Def. Found. v. Bellefonte Borough, 718 F. Supp. 431, 435 (M.D. Pa. 1989)

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(considering comments from the United States, a nonparty, in approving a consent decree in a

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citizen suit action brought under the Clean Water Act).

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For these reasons:

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The joint request for entry of the parties’ consent decree (Doc. No. 39) is granted;

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The parties’ stipulation and proposed consent decree (Doc. No. 39) is approved;

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The court retains continuing jurisdiction to enforce the consent decree in this
action for the duration of the decree (see Doc. No. 39 at ¶¶ 11–13); and

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The Clerk of the Court is directed to close this case.

IT IS SO ORDERED.
Dated:

July 13, 2021
UNITED STATES DISTRICT JUDGE

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