Louisiana Environmental Action Network et al v. Exxon Mobil Corp.

Filing 146

RULING denying 126 MOTION for Summary Judgment on the Unpleaded Affirmative Defense of Upset filed by Stephanie Anthony, Louisiana Environmental Action Network. Signed by Chief Judge Shelly D. Dick on 12/17/2018. (SWE)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

LOUISIANA ENVIRONMENTAL
ACTION NETWORK AND
STEPHANIE ANTHONY

CIVIL ACTION

VERSUS

16-144-SDD-RLB

EXXON MOBIL CORP. d/b/a
EXXONMOBIL CHEMICAL CO.

RULING
This matter is before the Court on the Motion for Summary Judgment on the
Unpleaded Affirmative Defense of “Upset”1 filed by Plaintiffs, Louisiana Environmental
Action Network (“LEAN”) and Stephanie Anthony (“Anthony”) or (“collectively LEAN”).
Defendant Exxon Mobil Corp. d/b/a ExxonMobil Chemical Co. (“Defendant” or “EMC”)
has filed an Opposition2 to the motion, to which Plaintiffs filed a Reply.3 For the following
reasons, Plaintiffs’ motion shall be DENIED.
I.

BACKGROUND
The factual background in this matter has been set forth in the Court’s previous

Ruling4 and will not be repeated here. In short, LEAN brings this citizens suit under the
Clean Air Act (CAA)5 LEAN claims that EMC violated the Clean Air Act (CAA) 142 times

1

Rec. Doc. No. 126.
Rec. Doc. No. 134.
3
Rec. Doc. No. 141.
4
Rec. Doc. No. 83.
5
42 U.S.C. § 7604(a)(1).
2

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by violating operating permits issued by the Louisiana Department of Environmental
Quality (“LDEQ”) pursuant to Title V of the CAA and Louisiana’s Part 70 permitting
program.
As one defense to liability, EMC has asserted the affirmative defense of “upset.”
As a general rule, the Federal Rules of Civil Procedure require a defendant to plead any
affirmative defenses it may have.6 LEAN argues that EMC waived its affirmative defense
of upset by failing to assert the defense in its Answer or file an amended answer to include
it.7 LEAN further contends that EMC explicitly waived the defense in its Reponses to
Interrogatory Number 10, wherein EMC stated that the defense of upset was “beyond the
scope of permissible discovery.”8 Thus, LEAN—up to the deadline to compel discovery—
was unable to further compel discovery.9 LEAN claims that allowing the affirmative
defense “would prejudice LEAN, which would have to guess as to what legal theory,
witnesses, and documentary evidence [EMC] plans to use to support this defense.”10 The
Parties dispute when LEAN obtained notice of EMC’s intent to assert this affirmative
defense: LEAN claims it received notice of the affirmative defense on December 22,
2017; EMC claims LEAN obtained notice no later than December 19, 2016.
Not only does LEAN dispute the timeliness of EMC’s assertion of this affirmative
defense, but LEAN also challenges the availability of the defense in a federal lawsuit.
Specifically, LEAN contends that the affirmative defense in La. Admin. Code Pt. III §

6

Effect of Failure to Plead an Affirmative Defense, 5 FED. PRAC. & PROC. CIV. § 1278 (Wright & Miller) (3d
ed).
7
R. Doc. 132, p. 9.
8
R. Doc. 132, p. 5.
9
R. Doc. 132, p. 13.
10
R. Doc. 132, p. 2.

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507(J) cannot be used in federal court since it is not part of Louisiana’s state
implementation plan (SIP).
II.

LAW AND ANALYSIS
A. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”11 “When assessing whether a dispute to any material fact exists, we consider all
of the evidence in the record but refrain from making credibility determinations or weighing
the evidence.”12 A party moving for summary judgment “must ‘demonstrate the absence
of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s
case.”13 If the moving party satisfies its burden, “the non-moving party must show that
summary judgment is inappropriate by setting ‘forth specific facts showing the existence
of a genuine issue concerning every essential component of its case.’”14 However, the
non-moving party’s burden “is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.”15
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a

11

Fed. R. Civ. P. 56(a).
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
13
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003)(quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S.Ct. at 2552)).
14
Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
15
Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
12

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reasonable jury could return a verdict for the nonmoving party.’”16 All reasonable factual
inferences are drawn in favor of the nonmoving party.17 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”18 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his
allegations … to get to a jury without any “significant probative evidence tending to
support the complaint.”’”19
B. Waiver of the Affirmative Defense of Upset
The Federal Rules of Civil Procedure require a party responding to a pleading to
“affirmatively state any avoidance or affirmative defense….”20 Under the Louisiana
Administrative Code and the Clean Air Act, the defense of upset is an affirmative
defense.21 However, EMC did not raise the defense of upset in its initial Answer.22
Generally, a party’s failure to raise affirmative defenses in its answer constitutes a
waiver of those defenses.23 This addresses the concern that “[a] defendant should not
be permitted to ‘lie behind a log’ and ambush a plaintiff with an unexpected defense.”24

16

Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
17
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
18
RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
19
Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
20
Fed. R. Civ. P. 8(c)(1).
21
La. Admin. Code Pt. III, § 507(J)(2); 40 C.F.R. § 70.6(g)(2) (the CAA refers to “upset” as “emergency”).
22
R. Doc. 10.
23
See Lucas v. United States, 807 F.2d 414, 417 (5th Cir. 1986) (citing Starcraft Co. v. C.J. Heck Co., 748
F.2d 982, 990 n.11 (5th Cir. 1984)).
24
Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir. 1987) (citing Bettes v. Stonewall Insurance Co.,
480 F.2d 92, 94 (5th Cir.1973)).

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The primary purpose, then, is to provide fair notice to the opposing party such that they
are not unfairly surprised.25

However, the technical failure to assert an affirmative

defense is not alone dispositive within the Fifth Circuit: “where [an affirmative defense] is
raised in the trial court in a manner that does not result in unfair surprise, […] technical
failure to comply with Rule 8(c) is not fatal.”26 Instead, the responding party waives an
affirmative defense only if (1) the defendant fails to raise the affirmative defense “at a
pragmatically sufficient time,” or (2) the plaintiff is “prejudiced in its ability to respond.”27
There is no set time to determine when asserting an unpleaded affirmative defense
is de facto raised at a pragmatically sufficient time. This determination depends on the
context of the litigation as a whole.28 For example, in Pasco v. Knoblauch and Turner v.
Cain—both cases involving a similar issue of unpleaded affirmative defenses—both the
Eastern District of Louisiana and the Fifth Circuit held that raising the defense more than
four years after the commencement of litigation does not, by itself, constitute a
pragmatically insufficient time.29 In Kemp v. CTL Distribution, Inc.,30 this Court held that
raising an affirmative defense seven years after the litigation’s commencement was not
a pragmatically sufficient time when the failure to raise the defense earlier had subjected
the plaintiff to years of protracted litigation.31 In Kemp, a great deal of litigation could have

25

Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir.1999).
Bull's Corner Restaurant v. Director, Federal Emergency Management Agency, 759 F.2d 500, 502 (5th
Cir.1985), quoting Allied Chemical Corp. v. Mackay, 695 F.2d 854, 855 (5th Cir.1983); see also Dickinson
v. Auto Center Mfg. Co., 733 F.2d 1092 (5th Cir.1983).
27
Allied Chemical Corp. v. Mackay, 695 F.2d 854, 855–56 (5th Cir.1983); see also 2 Moore's Federal
Practice § 8.08[3] (3d ed. 2016).
28
Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 577–78 (5th Cir. 2009) (stating that prejudice must be
considered in light of “the overall context of the litigation”).
29
Id.; Turner v. Cain, CV 12-598-BAJ-EWD, 2018 WL 1547863, at *12 (M.D. La. Feb. 28, 2018).
30
Kemp v. CTL Distribution, Inc., 2013 WL 2422805, *1 (M.D. La. June 3, 2013).
31
Id.; see Vanhoy v. United States, 514 F.3d 447, 450–51 (5th Cir. 2008).
26

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been avoided if the defense had “been timely pled and accepted.”32 Instead, the plaintiff
was subjected to years of unnecessary litigation, and the Court found that this
circumstance rendered the failure to raise the defense more than a mere technical
failure.33 Thus, the amount of time between litigation’s commencement and raising the
affirmative defense is not alone dispositive.
A plaintiff’s ability to mount an effective defense is also not dispositive. In Kemp,
the Court noted that the plaintiffs had a sufficient amount of time to prepare a defense to
the unpleaded affirmative defense such that the plaintiffs “cannot be said to have been
prejudiced in their ability to respond.”34 The Court nonetheless found the defense to be
waived because it was not raised at a pragmatically sufficient time, and the plaintiffs were
prejudiced by protracted and unnecessary litigation “because of its tardy entrance.”35
Turning to the present case, LEAN contends it was not given notice of EMC’s intent
to raise the affirmative defense of upset until December 22, 2017, when it was argued in
EMC’s Opposition to LEAN’s Motion for Summary Judgment on Liability.36 In contrast,
EMC claims that LEAN has been on notice of this defense since, at the very latest,
December 19, 2016,37 when EMC responded to LEAN’s interrogatories that specifically
requested EMC’s response to issues of upset.38 As noted above, time alone is not
dispositive as to the waiver of an affirmative defense. It is relevant, however, as the issue
of prejudice alleged by LEAN is the close of expert discovery in September 2017. LEAN’s

32

Kemp, 2013 WL 2422805 at *1.
Id. at *2 (M.D. La 2013).
34
Id.
35
Id.
36
R. Doc. 132, p. 4 (“Exxon raised the upset defense for the first time on December 22, 2017 . . .”).
37
R. Doc. 134, p. 7.
38
Id.
33

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timeframe places the affirmative defense more than 21 months after the commencement
of suit while EMC’s is under ten months;39 notably, LEAN’s timeframe places notice of the
defense subsequent to the close of expert discovery whereas EMC’s timeframe assigns
notice before the close of discovery.
LEAN argues it would have to guess as to the theory, facts, evidence related to an
upset defense; thus, it has not been raised at a pragmatically sufficient time. Further,
LEAN contends the timing is insufficient because it is too late for LEAN to obtain an expert
witness on the issue of upset. Conversely, EMC contends the defense was raised in a
pragmatically sufficient time, even accepting LEAN’s timeline of notice on December
2017, because LEAN had ample opportunity to respond to the defense, and LEAN did, in
fact, file three briefs on the defense.40 However, as noted above, “ample opportunity to
respond” does not, by itself, resolve the issue; rather, timing must be considered in light
of the prejudice imposed.
Addressing LEAN’s concern regarding its ability to hire an expert prior to trial, the
Court must consider whether LEAN had notice of EMC’s intent to use the upset defense
prior to the close of expert discovery (September 22, 2017). EMC claims, with good
authority, that LEAN was on notice of this defense since 2016.41 Nonetheless, even
accepting LEAN’s timeframe, the Court finds that LEAN still had sufficient notice of the
defense to adequately prepare for trial.
LEAN’s, second set of discovery, Interrogatory number 10 asked:
INTERROGATORY NO. 10: To the extent [EMC] claims that any
unauthorized release of air pollutants at the Baton Rouge Chemical Plant
39

R. Doc. 1 (Complaint was filed on 3/3/2016).
R. Doc. 134, p. 8.
41
Id. at p. 5.
40

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was not preventable, please explain why each such release was not
preventable.42
EMC answered LEAN’s second set of discovery on December 19, 2016,
responding as follows:
ANSWER: Objection. ExxonMobil objects to this Interrogatory as overly
broad and unduly burdensome because it is not limited in time or scope to
the matters or incidents at issue in this lawsuit, as such information is not
relevant nor proportional to the needs of the case, and is thus beyond the
scope of permissible discovery… [Without waiving these objections]
ExxonMobil declines to give a narrative answer to this Interrogatory
because it seeks information that is available from ExxonMobil’s records,
and the burden of deriving the answer is substantially the same for both
parties. Instead, see EMC-LEAN000004-000640, EMCLEAN004053004132, and EMC-LEAN004137-004149. ExxonMobil will produce
additional responsive, non-privileged documents upon execution of a
confidentiality agreement.43
Although EMC objected to the request as overly broad and unduly burdensome, the
response refers to a defined and specifically narrow field of documents. LEAN claims this
answer is insufficient because EMC allegedly claimed that the upset defense was
irrelevant to the case and thus beyond the scope of permissible discovery,44 and that the
answer was ambiguous because the same referenced documents were also used in
answers to other interrogatories. Notably, however LEAN does not argue that the specific
documents referenced do not hold the answer to the Interrogatory.
While the Court acknowledges that EMC’s answer to the interrogatory does not
strictly comply with Rule 33(b)(3) by failing to provide a “narrative” in connection with the
responsive documents,45 this technical failure is not fatal because EMC did give LEAN

42

R. Doc. 132.
See R. Doc. 132, p. 5, Interrogatory No. 10.
44
R. Doc. 132, p. 5.
45
Rule 33(b)(3) requires each interrogatory, to the extent it is not objected to, be answered separately and
fully. If EMC is not objecting to the use of upset entirely, then EMC is required to fully answer the portions
43

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notice that the defense would be used, and LEAN had the opportunity to investigate
further, as discussed below.
A reasonable reading of LEAN’s Interrogatory number 10 asks for suit-related
claims of unpreventable discharge. To this, EMC responded that the answer is irrelevant
and beyond the scope of permissible discovery. However, the fact that the answer and
supporting documents are specifically located in an answer to an interrogatory question
about upset should have signaled to LEAN that this defense was contemplated. The
response provided reasonable notice that EMC would pursue an upset defense. Based
on this response, LEAN had the opportunity to question Bliss Higgins, EMC’s designated
employee to testify “regarding compliance with environmental; statutes, regulations, and
permits,” or EMC’s corporate representative, about which releases EMC considers
subject to the upset defense.46 In any event, LEAN should have known following these
responses it might require an expert on this issue.47
The Court also finds that LEAN has had ample notice of the defense in advance
of trial. In opposition to LEAN’s Motion for Summary Judgment on Liability, EMC argued
the affirmative defense of upset with respect to certain discharges. LEAN was granted

of the interrogatory that is not objecting to. It has done so by referring to the documents, though without
providing “a narrative.” EMC claims that it does not need to provide a narrative because the burden of
deriving the answer is substantially the same for both parties. This is true only to an extent. It is arguably
true in that each party has the same burden in determining how each discharge was not preventable. R.
Doc. 132, p. 5 (the interrogatory asked EMC to explain “why each such release was not preventable”). The
only narrative needed by LEAN, however, is an answer of whether EMC will use any upset defenses.45
Moreover, in interrogatory number 8, LEAN asked EMC to “identify all releases of air pollutants at the Baton
Rouge Chemical Plant … that Exxon contends was an ‘upset’ as defined by La. Admin. Code tit. 33, §
507.J.” R. Doc. 134, p. 2. To fully answer this question while objecting to the overly broad portions of the
interrogatory would have required EMC to, at the very least, list which releases EMC considers to be upsets.
Nevertheless, the Court does not find this technical failure a foreclosure to the assertion of the defense.
46
R. Doc. 134, p. 11–12.
47
EMC further contends LEAN’s argument that it was prejudiced by not being able to depose a fact witness
on this issue is “unconvincing, as Plaintiffs did not seek to depose any witness – fact or expert – on any
issue.” Rec. Doc. No. 134 at p. 11 (emphasis original).

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leave to file a reply, and later a sur-sur-reply on the upset defense.48 LEAN was clearly
apprised of which incidents EMC considered to be an upset because they are “easily
identifiable in the UADs and/or NFAs,”49 which LEAN “actually received.”50 Indeed,
EMC’s Opposition stated which specific releases EMC considered to be an upset.51
Thus, the Court finds that LEAN has not been prejudiced because it had notice of
the use of the upset defense by the documents identified in response to Interrogatory
number 10 in December 2016. Considering all of the relevant factors and circumstances
surrounding this defense, LEAN’s Motion for Summary Judgment is DENIED as to its
claim that the defense has been waived.
C. Availability of Defense in Federal Court under the CAA
Alternatively, LEAN moves for summary judgment arguing that EMC has asserted
an upset defense under 33 La. Admin. Code Pt. III, § 507(J), a state law, in this federal
action brought pursuant to the CAA, a federal law.52 LEAN contends EMC must rely only
on federal law in this matter, which provides no legal basis for an affirmative defense of
upset.53
Congress created the CAA to “protect and enhance the quality of the Nation’s air
resources so as to promote the public health and welfare.”54 The CAA authorizes the EPA
to establish and promulgate air pollution requirements and limitations as a national

48

R. Doc. 134, p. 8; see also R. Doc. 212.
R. Doc. 134, p. 8.
50
Id. at p. 11.
51
Id. at p. 8. Specifically, a section of the Motion was titled “The Affirmative Defense of Upset Applies to
Some of the Alleged Violations,” and this section lists what specific releases EMC considers an upset. R.
Doc. 134, p. 4.
52
R. Doc. 132, p. 1.
53
Id.
54
42 U.S.C. § 7401(b)(1).
49

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ambient air quality standard (“NAAQS”).55 In turn, states must adopt air quality standards
that are at least as protective as the NAAQS requires,56 and must establish a state
implementation plan (“SIP”) that conforms to EPA’s standards.57 A state’s SIP becomes
federally enforceable once the EPA approves it.58 Thus, EMC may assert any defense in
Louisiana’s SIP if the EPA has approved the SIP.
Neither party disputes that the EPA approved Louisiana’s SIP, and the same view
is clear in this Court’s jurisprudence.59 Nevertheless, LEAN contends that Section 507(J)
cannot be used in a federal suit because it is outside the SIP—but rather in Louisiana’s
state operating permit program—and is thus not federally enforceable.60 EMC responds
that the EPA’s approval of a state operating permit renders the state operating permit
program federally enforceable in conjunction with the already-enforceable SIP.61 The
Court finds support for this rationale.
A state’s permitting program—or “Title V” program—is not the same as its SIP. As
the name suggests, a state’s Title V program stems from Title V of the CAA, which
specifies EPA standards for air pollution enforcement. States utilize CAA Title V in
developing a state permit program that complies with the EPA’s requirements.

In

contrast, SIPs are based on Title 1 of the CAA, and state the mechanism by which a state

55

See 42 U.S.C. §§ 7408–7409.
See 42 U.S.C. § 7407(a).
57
See 42 U.S.C. § 7410(a).
58
Clean Air Act, §§ 107–110, 42 U.S.C. §§ 7407–7410; St. Bernard Citizens for Envtl. Quality, Inc. v.
Chalmette Refining, L.L.C., 399 F. Supp. 2d. 726, 730 (E.D. La. 2005) (citing Louisiana Envtl. Action
Network v. EPA, 382 F.3d 575, 579 (5th Cir. 2004); Kentucky Res. Council, Inc. v. EPA, 304 F. Supp. 920,
923 (W.D. KY 2004); Sweat v. Hull, 200 F. Supp. 2d. 1162, 1164 (D. Ariz. 2001)).
59
R. Doc. 141, p. 2 (“Louisiana’s SIP is federal law…”); R. Doc. 134 pp. 12–13; Zen-Noh Grain Corp. v.
Consolidated Environmental Management, Inc., No. 12-1011, 2013 WL 3947186 at * 2 (E.D. La. July 31,
2013)(unreported).
60
R. Doc. 141, p. 2.
61
R. Doc. 134, p. 13.
56

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will ensure compliance with the NAAQS established by the EPA. Both require EPA
approval.62
Title V permits may not alter or modify SIP requirements. Rather, Title V “houses”
existing SIP requirements.63 That is, Title V is broad, and includes, inter alia, a state’s
SIP.64 Title V required the EPA to create regulations under which states would develop
operating permit programs combining all enforceable requirements applicable to a source
of air pollutants.65 Permits issued under SIP-approved permit programs, such as
Louisiana’s, are also enforceable under the terms and conditions of a state’s Title V
program.66 These Title V “terms and conditions” are “applicable requirements” that must
be incorporated into title V.67 The letter concludes: “Thus, if a State does not want a SIP
provision or SIP-approved permit condition to be listed on the Federal side of the title V
permit, it must take appropriate steps to delete those conditions from its SIP or SIPapproved permit.”
The EPA gave full approval of Louisiana’s Title V Operating Permits program on
September 12, 1995.68 40 C.F.R. § 52.970 “sets forth the applicable [SIP] for Louisiana
under section 110 of the Clean Air Act….”69 This section, among other things, states that
“[m]aterial listed in paragraphs (c), (d), and (e) of this section with an EPA approval date

62

42 U.S.C. Ch. 85, Subchapter 1.
See, e.g., memorandum from John S. Seitz, Director, Office of Air Quality and Planning Standards, EPA,
re Federal Enforceability of Terms and Conditions in Preconstruction Permits, (Mar. 31, 1999), at 1–2.
64
Title V includes, inter alia, national emission standards for hazardous air pollutants, new source
performance standards, as well as applicable SIP requirements.
65
See 42 U.S.C. §§ 7661–7661(f).
66
See 40 C.F.R. 52.23.
67
See CAA § 504(a); 40 C.F.R. 70.20.
68
40 C.F.R. § 52.970. See also Clean Air Act Final Full Approval of Operating Permits Program; Louisiana
Department of Environmental Quality, Final Full Approval, 60 Fed. Reg. 47296 (Sept. 12, 1995).
69
40 C.F.R. § 52.970(a).
63

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prior to July 1, 1998, was approved for incorporation by reference ….”70 Louisiana’s
Section 507 is included in paragraph (c), and within the timeframe, and is therefore
incorporated by reference into the SIP and subject to federal enforcement.
Section 507(J) of Louisiana’s Title V program is federally enforceable.71 40 C.F.R.
52.23 makes any EPA-approved program that is incorporated into a SIP “subject to
enforcement action under … the CAA.”72 As noted above, the EPA incorporated Section
507(J). This incorporation makes Section 507(J) federally enforceable according to 40
C.F.R. 52.23. The distinction of the regulation’s enforcement language should not bar its
applicability in an affirmative defense context because an enforcement action of a Title V
permit is a condition precedent to the use of an affirmative defense. If a plaintiff may rely
on federally incorporated provisions of Title V to bring a federal suit, it reasonably follows
that a defendant may also rely on Title V to defend that suit. Further, whether a plaintiff
actually relies on incorporated provisions of Title V is not the issue. If the right is available
to a plaintiff, it should also be available to a defendant, and a defendant’s reliance on
such regulations should not be conditioned upon a plaintiff’s.

70

40 C.F.R. § 52.970(b)(1).
40 C.F.R. 52.23: Failure to comply with any provisions of this part, or with any approved regulatory
provision of a State implementation plan, or with any permit condition or permit denial issued pursuant to
approved or promulgated regulations for the review of new or modified stationary or indirect sources, or
with any permit limitation or condition contained within an operating permit issued under an EPA-approved
program that is incorporated into the State implementation plan, shall render the person or governmental
entity so failing to comply in violation of a requirement of an applicable implementation plan and subject to
enforcement action under section 113 of the Clean Air Act. With regard to compliance schedules, a person
or Governmental entity will be considered to have failed to comply with the requirements of this part if it
fails to timely submit any required compliance schedule, if the compliance schedule when submitted does
not contain each of the elements it is required to contain, or if the person or Governmental entity fails to
comply with such schedule.
72
40 C.F.R. 52.23.
71

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Although Section 52.23 allows enforcement pursuant to Section 113 of the CAA,
EPA guidance suggests that being “federally enforceable” includes federal government
enforcement under Sections 113 and 167 and citizen enforcement under Section 304 of
the CAA.73 This view is strengthened by the showing that the citizen suit provides a
mechanism to bring an action against “any person” for violations of any “emission
standard or limitation under this chapter.”74 “This chapter” is later defined in the section
to include emission limitations, “any” condition or requirement of a permit under parts C
and D of subchapter III, Sections 7419, 7491, 7411, and 7412 of the CAA.75 It also allows
suit for violation of “any other standard, limitation, or schedule established under any
permit issued pursuant to subchapter V or under any applicable State implementation
plan approved by the Administrator, any permit term or condition, and any requirement to
obtain a permit as a condition of operations.”76 Section 113 similarly allows suit, albeit for
the Administrator, when “any person has violated … any requirement or prohibition of an
applicable implementation plan or permit….”77 At least to the extent that Title V permits
are concerned, the EPA and citizens share the ability to sue, and both have very broad
capacities to bring suit. Accordingly, the Court finds that the term “federally enforceable”
must mean the same thing in context of an action alleging a Title V violation by either the
EPA or through a citizen suit.

73
See memorandum from John S. Seitz, Director, Office of Air Quality and Planning Standards, EPA, re
Interface Issues Between Title V and Title I of the CAA, (May 20, 1999), at 4 (clarifying interpretation of
“federally enforceable,” in context of 40 C.F.R. 52.23, to include citizen suit provisions under Section 304
in addition to 113.). To be clear, this responsive letter addressed EPA’s ability to enforce, which fits squarely
within Section 113. Nonetheless, the Director deliberately discussed the use of citizen suits.
74
Section 304(a)(1).
75
Section 304(f).
76
Section 304(f)(4).
77
Section 113(a)(1). Among the remedies available to the Administrator include civil action. See id. at (C).

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Even without such an interpretation, the Court finds that Section 507(J) is federally
enforceable in its own right. The citizen suit provision allows any citizen to bring an action
for any violation of any EPA-approved SIP, any permit term or condition, and any
requirement to obtain a permit as a condition of operations.78 Clearly, LEAN may bring
suit for violation of any permit term or condition—even if distinguished from the SIP. EMC
must also be allowed to use the same sources of law to defend a suit as LEAN used to
commence the suit. Again, in the Court’s view, no distinction should be made between
LEAN’s use of the law and EMC’s ability to use the same law. Because LEAN has the
ability to bring suit for violation of a permit term or condition, EMC should likewise be able
to defend itself on the basis of those same terms or conditions.
Section 507(J) is a part of Louisiana’s Title V program, which has been approved
by the EPA.79 It is as much of a “term” to a permit as a maximum emissions standard is
a “condition” to the same. The latter is a “condition” to the permit because the permit is
issued on condition that the permit-holder will not exceed the established standard. But
permits are not unilateral obligations. A source may not accept a permit if its conditions
are too stringent with which to comply. Thus, the “upset” defense under Section 507(J) is
a condition that likely induced EMC here, and other CAA-regulated entities all around. It
is a condition, then, in the same way as above: the permit is sought and accepted on
condition that 507(J) allows a defense to noncompliance for certain “sudden and
reasonably unforeseeable events beyond the control of the owner or operator, including

78

Section 304(f)(4) (emphasis added).
40 C.F.R. § 52.970. See also Clean Air Act Final Full Approval of Operating Permits Program; Louisiana
Department of Environmental Quality, Final Full Approval, 60 Fed. Reg. 47296 (Sept. 12, 1995).

79

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acts of God….”80 Indeed, obligations are not unilateral. Much of the CAA’s language
focuses on enforcement, which is the purpose of the CAA. Nevertheless, it should not be
read to overlook the nature of administrative law and its cost-benefit analytical model.
The EPA more recently proposed disapproval of Louisiana’s SIP revision to a
different section of Louisiana’s Admin. Code.81 The proposed disapproval was based on
the section’s reference to “upset” in Section 507(J). The EPA found that, while “upset” is
in Louisiana’s Title V program, its definition is identical to that of “emergency” in 40 C.F.R.
70.6, which the EPA had commenced rulemaking to remove. “If finalized, that rulemaking
would require the LDEQ to also remove the affirmative defense language from its Title V
rules, including the language at [Section 507(J)] which is part of Louisiana’s approved
Title V program.”82 The EPA, however, did not issue such a final rule but rather withdrew
the rulemaking in February of 2018.83 A brief discussion of the rulemaking is set forth
below.
The CAA provides two identical provisions for claiming an upset defense: 40
C.F.R. 71.6(g), which applies to EPA-issued permits, and 40 C.F.R. 70.6(g), which
applies to state permits.84 Part 70.6(g) establishes an EPA-approved minimum standard
that states may adopt in their SIP. As noted above, a SIP becomes federally
enforceable—and thus enforceable in this Court—only after the EPA approves it.85

80

33 La. Admin. Code Pt. III, § 507(J)(1).
https://www.federalregister.gov/documents/2016/11/22/2016-28003/approval-and-promulgation-ofimplementation-plans-louisiana-revisions-to-the-new-source-review-state.
82
https://www.federalregister.gov/documents/2016/11/22/2016-28003/approval-and-promulgation-ofimplementation-plans-louisiana-revisions-to-the-new-source-review-state.
83
The proposed rule was withdrawn on February 23, 2018. https://www.regulations.gov/docket?D=EPAHQ-OAR-2016-0186. Plaintiff’s Memorandum is signed July 2, 2018.
84
Compare, 40 C.F.R. 71.6(g) with 40 C.F.R. 70.6(g).
85
Clean Air Act, §§ 107–110, 42 U.S.C. §§ 7407–7410.
81

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In 2016, the EPA commenced rulemaking to remove both Parts 70.6(g) and
71.6(g).86 The EPA maintains that this rulemaking is consistent with the EPA’s current
interpretation of the CAA’s enforcement structure and recent decisions from the D.C.
Circuit.87 In short, the EPA amendments promulgated during the 1990s established,
among other things, a standard for upset defenses which, in NRDC v. EPA, the D.C.
Circuit found to exceed the EPA’s authority.88 Although NRDC v. EPA did not involve Part
70.6(g),89 the EPA has determined that the D.C. Circuit’s reasoning in NRDC would
dictate a similar result in such a suit.90 The EPA released a supporting document listing
state regulations and statutes that may be affected by the proposed rule, and Louisiana’s
Section 507(J) is listed.91 LEAN contends this proposed rule makes Part 70.6 an invalid
basis for an upset defense.92 However, a proposed rule lacks the authority of law. EMC
argues that the “Court’s role is not to rule based on regulations that an agency may finalize
in the future.”93 The Court agrees. Moreover, this proposed rule was withdrawn by the
EPA prior to LEAN submitting this argument to this Court.94 Finding that Section 70.6(g)
affirmative defenses are not categorically precluded by the EPA, Section 507(J) remains
unaltered until any final actions dictate otherwise. That is, Section 507(J) remains a valid

86

Removal of Title V Emergency Affirmative Defense Provisions, Proposed Rule, 81 F.R. 38645, 38647
(June 14, 2016).
87
81 F.R. 38647.
88
749 F.3d 1055 (D.C. Cir. 2014).
89
NRDC involved an affirmative defense in the National Emission Standards for Hazardous Air Pollutants,
located in section 112 of the CAA.
90
“The EPA concluded that the logic of the court in NRDC v. EPA extends beyond CAA section 112 to
affirmative defense provisions contained in SIPs.” 81 F.R. 38648.
91
Docket No. EPA-HQ-OAR-2016-0186 at 3.
92
R. Doc. 132, p. 21.
93
R. Doc. 134, p. 14 (emphasis original).
94
The proposed rule was withdrawn on February 23, 2018. https://www.regulations.gov/docket?D=EPAHQ-OAR-2016-0186. Plaintiff’s Memorandum is signed July 2, 2018.

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part of Louisiana’s Title V program and continues to have the EPA’s approval.
Accordingly, LEAN is not entitled to summary judgment on the availability of upset as an
affirmative defense.
D. Alternative Relief Requested
LEAN argues in the alternative that the Court should limit EMC’s use of upset in
this proceeding to what the CAA allows, which would only allow defense as to penalties—
not liability, declaratory judgment, or injunctive relief. Further, LEAN asks the Court to
limit EMC’s use of upset “to the documents it identified as its proposed evidence for an
upset defense.”95
As to the first issue, there is no legal authority that supports this position. If EMC
rightfully asserts an affirmative defense as allowed by Louisiana’s Title V program, it is
not limited in asserting that defense. LEAN relies on the Fifth Circuit’s decision in
Luminant Generation Co. LLC v. U.S. E.P.A., wherein the court noted that any defense
based on 40 C.F.R. 70.6(g) is a defense to penalties only. 96 EMC points out that its upset
defense is not based on 40 C.F.R. 70.6(g) but on Louisiana’s Section 507(J); thus, the
Luminant decision is inapplicable here. The Court agrees for the reasoning and analysis
set forth in detail above.
As to LEAN’s request to limit EMC’s use of documents, the Court simply holds that
it will enforce the Federal Rules of Civil Procedure and the discovery rules set forth
therein. Documents that have not been exchanged in discovery will not be permitted at
trial by any Party unless such documents constitute impeachment or rebuttal evidence.

95
96

R. Doc 132, p. 3.
713 F.3d 841 (5th Cir. 2013).

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To the extent LEAN complains that the upset evidence submitted by EMC in response to
LEAN’s present summary judgment motion is insufficient to establish the defense as a
matter of law, this argument is without merit. LEAN did not move for summary judgment
on the substantive merits of EMC’s upset defense to the corresponding discharges.
Rather, LEAN’s motion seeks summary judgment on only two issues: waiver of the
defense and the viability of the defense under the CAA. The substantive merits of the
defense were not raised in LEAN’s motion, and EMC is not limited at trial to the evidence
submitted on the current motion as long as the evidence used at trial has been exchanged
pursuant to the Federal Rules of Civil Procedure and the discovery orders of this Court.
III.

CONCLUSION
For the reasons set forth above, LEAN’s Motion for Summary Judgment on the

Unpleaded Affirmative Defense of “Upset”97 is DENIED.
Signed in Baton Rouge, Louisiana on December 17, 2018.

S

CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

97

Rec. Doc. No. 126.

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