United States of America v. Pacific Gas & Electric Company

Filing 46

ORDER GRANTING IN PART MOTION BY COMMUNITIES FOR A BETTER ENVIRONMENT FOR PERMISSIVE JOINDER OF BAY AREA AIR QUALITY MANAGEMENT DISTRICT AND JACK BROADBENT AS DEFENDANTS(SI, COURT STAFF) (Filed on 5/12/2010)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. PACIFIC GAS & ELECTRIC, Defendant. / UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Plaintiff, COMMUNITIES FOR A BETTER ENVIRONMENT, Intervenor Plaintiff, No. C 09-4503 SI ORDER GRANTING IN PART MOTION BY COMMUNITIES FOR A BETTER ENVIRONMENT FOR PERMISSIVE JOINDER OF BAY AREA AIR QUALITY MANAGEMENT DISTRICT AND JACK BROADBENT AS DEFENDANTS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Pursuant to Federal Rule of Civil Procedure 20, Intervenor plaintiff Communities for a Better Environment ("CBE") has moved to permissively join as defendants the Bay Area Air Quality Management District ("BAAQMD" or "Air District") and Jack Broadbent, in his official capacity as Air Pollution Control Officer of the Air District. Pursuant to Civil Local Rule 7-1(b), the Court VACATES the May 14, 2010 hearing on the motion. The case management conference scheduled for 3:00 pm on May 14, 2010 remains on calendar. CBE contends that joinder is appropriate because CBE's proposed claims against these new defendants arise out of the same transactions and occurrences as CBE's claims against PG&E. CBE's claims against PG&E (as well as the EPA's claims against PG&E) allege that PG&E is in violation of the Clean Air Act because PG&E failed to comply with the preconstruction requirements of the Prevention of Significant Deterioration ("PSD") program in PG&E's construction and operation of the Gateway power plant. CBE alleges that the Air District issued a PSD permit to PG&E's predecessor

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

in interest, Mirant Delta, LLC, in July 2001 for a power plant designed for the same site where the Gateway plant now operates; that Mirant's PSD permit expired; and that PG&E , the new owner of the plant, finished construction and began operating the power plant without a new PSD permit to replace the expired permit. CBE's proposed new claims against BAAQMD and Mr. Broadbent allege that the Air District has a duty to administer the PSD program consistent with the Clean Air Act, and that despite the expiration of the Mirant permit, the Air District purported to renew the permit in 2005 and 2007 in violation of the requirements of the Clean Air Act. The EPA1 and PG&E do not oppose the joinder of BAAQMD and Mr. Broadbent, but they both express concern that CBE's proposed amended complaint goes beyond the scope of the underlying lawsuit by alleging violations of the Clean Air Act, and seeking relief with regard to, facilities other than the Gateway power plant. The EPA and PG&E assert that the potential breadth of CBE's claims will complicate and delay this litigation and result in time consuming, expensive and unnecessary discovery. The Court finds that the concerns raised by the EPA and PG&E are valid, and that it is appropriate to limit CBE's claims against the new defendants to those involving PG&E's Gateway power plant. As so limited, the Court finds that the proposed claims against BAAQMD and Mr. Broadbent arise out of the same transactions and occurrences as the underlying claims, and CBE's motion for permissive joinder is GRANTED IN PART. (Docket No. 33). CBE shall file a first amended complaint in intervention, limited to claims regarding the Gateway power plant, no later than May 17, 2010.

IT IS SO ORDERED.

Dated: May 12, 2010

SUSAN ILLSTON United States District Judge

The EPA states that it does not object to joinder at this time, but that it reserves it rights and does not waive any future arguments, claims, or actions relating to BAAQMD's participation in this case. 2

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