Conservation Law Foundation, Inc. v. Public Service Company of New Hampshire

Filing 65

CORRECTED MEMORANDUM ORDER granting 56 Motion to Amend 1 Complaint; denying 15 Motion to Dismiss Counts I - IV Pursuant to Rule 12(b)(6). Correction to page 22, line 5. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Conservation Law Foundation
v.

Civil No. 11-cv-353-JL
Opinion No. 2013 DNH 167

Public Service Company of New
Hampshire
MEMORANDUM ORDER
When one statute or regulation incorporates another by
reference, what version of the referenced provision does it
incorporate:

the version in effect at the time of enactment, or

the version in effect at the time of invocation--amendments and
all?

That question is central to this case, a citizen suit

brought by the Conservation Law Foundation (“CLF”) under the
Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq.

CLF alleges that

the defendant, Public Service Company of New Hampshire (“PSNH”),
has violated the CAA by operating Merrimack Station, a coal-fired
power plant in Bow, New Hampshire, without the necessary permits.
More specifically, CLF alleges that PSNH, both prior to and since
making changes to the plant in 2008 and 2009 (which the parties
refer to collectively as the “turbine projects”), failed to
obtain permits required under the state and federal regulations
that implement the CAA’s “New Source Review” program.

This court has jurisdiction over this matter pursuant to 28
U.S.C. § 1331 (federal question) and 42 U.S.C. § 7604(a) (CAA).
PSNH has moved to dismiss Counts 1-4 of CLF’s complaint for
failure to state a claim upon which relief can be granted.1
Fed. R. Civ. P. 12(b)(6).

See

Its primary argument is that the EPA’s

implementing regulations for the New Source Review program, as
amended in 2002, did not require it to obtain permits in
connection with the turbine projects.

CLF, it hardly need be

said, disagrees with PSNH, both as to the applicability of the
post-2002 regulations (which, CLF argues, did not apply in New
Hampshire at the time of the turbine projects) and their
interpretation.

The parties’ briefing on these topics has been

supplemented by amicus briefs submitted by the United States
(which supports CLF’s position) and the Utility Air Regulatory
Group (which describes itself as an “unincorporated trade
association of individual electric utilities and national
industry trade associations” and whose briefs support PSNH’s
position).

1

PSNH also filed a separate motion to dismiss the entire
action for lack of standing. See Fed. R. Civ. P. 12(b)(1). In a
previous order, this court granted that motion as to Counts 5-7,
but denied it as to Counts 1-4. See Conservation Law Found. v.
Pub. Serv. Co. of N.H., 2012 DNH 174. Counts 1-4 are therefore
the only claims remaining in this case.
2

Because the interpretation of the post-2002 regulations was
also at issue in a case pending before the Court of Appeals for
the Sixth Circuit, this court refrained from ruling on PSNH’s
motion until that court rendered its decision.
Sept. 4, 2012.

See Order of

The Sixth Circuit issued its opinion on March 28,

2013, see United States v. DTE Energy Co., 711 F.3d 643 (6th Cir.
2013), and later that same day this court invited the parties “to
submit additional briefing regarding the import of the Sixth
Circuit’s decision to the defendant’s motion,” which they did.
CLF also filed a motion urging this court to defer consideration
of the motion to dismiss until it had resolved CLF’s anticipated
motion to amend the complaint.

See Fed. R. Civ. P. 15.

Over PSNH’s objection, the court granted CLF’s request.

As

expected, CLF then moved to amend the complaint to add new
allegations to Counts 1 and 3 and to include a claim that PSNH’s
“turbine projects also violated a provision of the Act that is
separate and distinct from the provisions at issue in the
original Complaint”–-the “New Source Performance Standards”
established by 42 U.S.C. § 7411.

PSNH has filed an opposition to

that motion, arguing that CLF unduly delayed filing its proposed
amendments, and that they should be denied as futile in any event
because of CLF’s deficient notice of intent to sue.

See id.

§ 7604(b)(1)(A) (requiring pre-suit notice of citizen suit).

3

After hearing oral argument from the parties and amici, the
court denies PSNH’s motion to dismiss and grants CLF’s motion to
amend.

As already mentioned, the foundation upon which PSNH’s

primary argument for dismissal rests is the notion that the
turbine projects were subject to the New Source Review permitting
framework established by the 2002 amendments to the CAA’s federal
implementing regulations, and that the regulations as amended did
not impose any obligation on PSNH to obtain permits in connection
with the projects.

That foundation cannot bear weight:

New

Hampshire’s Department of Environmental Services, which is tasked
with implementing the CAA in this state, had not adopted those
amendments into state law at the time of the turbine projects.
In its reply memorandum, PSNH attempts to salvage its motion by
arguing that the complaint also fails to state a claim under the
version of the regulations that actually applied in New Hampshire
at the time of the projects (an argument it also advanced with
vigor at oral argument).

That belated argument, however, is

insufficiently developed, and the court will not address it at
this time.

PSNH’s motion accordingly fails.

PSNH’s opposition to CLF’s motion to amend suffers the same
fate.

This case is still in its early stages–-PSNH, as a result

of its Rule 12 motion practice, has not even had to file an
answer–-so PSNH’s accusation of unreasonable delay on CLF’s part

4

rings hollow.

And, contrary to PSNH’s argument, CLF’s notice of

intent to sue provided PSNH all the information about the alleged
violation required under federal law.
I.

Applicable legal standard
To survive a motion to dismiss under Rule 12(b)(6), the

plaintiff’s complaint must allege facts sufficient to “state a
claim to relief that is plausible on its face.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

In ruling on such a motion,

the court must accept as true all well-pleaded facts set forth in
the complaint and must draw all reasonable inferences in the
plaintiff’s favor.

See, e.g., Martino v. Forward Air, Inc., 609

F.3d 1, 2 (1st Cir. 2010).

The court “may consider not only the

complaint but also facts extractable from documentation annexed
to or incorporated by reference in the complaint and matters
susceptible to judicial notice.”

Rederford v. U.S. Airways,

Inc., 589 F.3d 30, 35 (1st Cir. 2009).

With the facts so

construed, “questions of law [are] ripe for resolution at the
pleadings stage.”
2009).

Simmons v. Galvin, 575 F.3d 24, 30 (1st Cir.

The following background summary adopts that approach.

5

II.

Background
The facts underlying this case, at least as far as they are

relevant to PSNH’s motion to dismiss, are uncomplicated.2

PSNH

operates plants that generate electricity in several locations in
New Hampshire, including Merrimack Station in Bow.

Merrimack

Station, which consists of two units dubbed “MK1" (in operation
since 1960) and “MK2” (in operation since 1968), generates power
by burning coal.

In addition to generating power, this process

emits pollutants, including nitrogen oxide (NOx), sulfur dioxide
(SO2), and carbon dioxide (CO2), into the air.

Merrimack Station

is the single largest point source of CO2 in New Hampshire.
In recent years, PSNH has made several renovations to the
plant.

In 2008, it replaced a steam turbine in MK2.

At the same

time, it also replaced, installed, or modified related equipment
in MK2 in order to increase turbine efficiency, increase output,
and reduce maintenance outages.

CLF alleges that, while these

alterations enabled additional generation capacity--and while
PSNH’s own projections indicated that they would cause annual NOx
emissions to increase by 334 tons per year--PSNH did not obtain
any permits prior to making them.

2

And, in late 2009, PSNH shut

These facts are drawn from the allegations pled in CLF’s
original complaint, and the attachments thereto. To the extent
that CLF’s proposed amended complaint contains additional
allegations, those allegations are discussed in Part III.B infra.
6

down MK2 for a period of about four months to make additional
alterations to the turbine and its associated equipment.

CLF

alleges once again that, while these later changes enabled
additional generation capacity and, by PSNH’s projections, would
again result in increased NOx emissions, PSNH did not obtain any
permits prior to making them.

Nor, CLF alleges, has PSNH

obtained the appropriate permits since that time.
In April 2011, CLF provided PSNH with a notice of its intent
to file a citizen suit under the CAA, asserting that (among other
things) PSNH’s failure to obtain the permits in question violated
the CAA and its implementing regulations.
7604(b); 40 C.F.R. § 54.3.

See 42 U.S.C. §

It also sent copies of the notice to

the Environmental Protection Agency, the New Hampshire Department
of Environmental Services, and the governor of New Hampshire, as
required by the CAA.

See 42 U.S.C. § 7604(b).

None of those

entities commenced an enforcement action to redress the alleged
violations detailed in CLF’s notice, and PSNH did not cease or
remedy them.
III.

Thus, on July 21, 2011, CLF filed this action.

Analysis
A.

PSNH’s motion to dismiss

Counts 1-4 of CLF’s complaint, which are the subject of the
motion now before the court, allege that PSNH violated the CAA
and its implementing regulations by failing to obtain various
7

permits in connection with the turbine projects in 2008 and 2009.
In moving to dismiss these counts, PSNH argues that it was not in
fact required to obtain permits for those projects.

CLF’s

claims, PSNH asserts, rely upon a version of the implementing
regulations for the CAA’s “New Source Review” program that
existed prior to 2002.

In that year, the EPA amended those

regulations, and PSNH says that the new, amended regulations
obviated the need for the permits in question.

As it turns out,

though, New Hampshire had not yet adopted the 2002 amendments to
the EPA regulations when PSNH undertook the turbine projects,
meaning the pre-2002 version was still in force in this state at
that time.

For that reason, and those that follow, PSNH’s motion

to dismiss is denied.
Congress enacted the CAA in order to, among other things,
“protect and enhance the quality of the Nation’s air resources”
and encourage “the development and execution of [state] air
pollution prevention and control programs.”

42 U.S.C. § 7401(b);

see also Conservation Law Found. v. Busey, 79 F.3d 1250, 1256
(1st Cir. 1996).

As a part of the regulatory structure created

by Congress, the EPA has established National Ambient Air Quality
Standards (“NAAQS”), which reflect the maximum allowable
concentration levels for particular air pollutants.
§ 7409(b); see 40 C.F.R. § 50.1 et seq.

8

42 U.S.C.

States play the primary

role in the implementation of the NAAQS.

42 U.S.C. § 7407(a).

Each state, including New Hampshire, must formulate and
administer a “state implementation plan,” or “SIP”, which
outlines a strategy for implementing, maintaining, and enforcing
NAAQS.

See generally 42 U.S.C. § 7410.

Each state’s SIP must include a plan for “New Source Review”
(“NSR”), i.e., for regulating the construction of, and “major
modifications” to, air pollution sources within the state.
40 C.F.R. § 51.160.
scope.

See

Two distinct programs fall within NSR’s

For areas that have achieved NAAQS, states must implement

the “Prevention of Significant Deterioration,” or “PSD” program.
See generally 42 U.S.C. §§ 7470-7492.

For areas that have not

achieved NAAQS, states are required to have a “Non-Attainment
NSR,” or “NNSR” program.3

See generally id. §§ 7501-7515.

SIPs

and their subsidiary programs, though required to generally
adhere to the CAA’s requirements, may vary from the EPA’s
implementing regulations and impose more stringent standards than
those regulations, see 42 U.S.C. § 7416; as a result, the EPA’s
regulations are not uniformly applicable throughout the states.

3

Merrimack County, in which Merrimack Station is located,
has been designated a non-attainment area for ozone, but has not
been similarly designated for other pollutants. See 40 C.F.R.
§ 81.330.
9

New Hampshire, through its Department of Environmental
Services (“DES”), has developed a SIP, including (as it must) an
NSR plan with subsidiary PSD and NNSR programs that contain the
various permitting requirements that CLF alleges PSNH violated.
See generally Code of N.H. Rules, Env-A.

The EPA has approved

New Hampshire’s SIP, see 40 C.F.R. §§ 52.1520, 52.1525; see also
Approval and Promulgation of Air Quality Implementation Plans;
New Hampshire, 67 Fed. Reg. 65,710 (Oct. 28, 2002), which
incorporates certain federal regulations by reference.
As is pertinent here, the SIP provided, at all times
relevant to this action, that “the provisions of 40 C.F.R.
52.21(b) through (p), (r), (t), (v), and (w) shall apply for the
purposes of implementing a PSD permit program that meets the
requirements of Title I of the [CAA].”
§ 623.03(a) (2001).4
provision.

N.H. Code R. Env-A

PSNH’s primary argument hinges on this

It contends that the DES, by promulgating a

4

Section 623.03 has since been amended and renumbered as
N.H. Code R. Env-A § 619.03. Although both New Hampshire’s PSD
permitting program and its NNSR permitting program are at issue
in this action, this section deals only with the PSD program (as
the quoted portion in the text above indicates). In its written
memoranda, PSNH maintained that the post-2002 version of the
regulations governing both programs applied in New Hampshire. At
oral argument, however, PSNH conceded that the pre-2002 version
of the NNSR regulations applied in this state, though it stood by
its position that the post-2002 version of the PSD regulations
applied. Given this concession, the court need only address the
extent to which the regulations governing the PSD program in this
state incorporate federal law.
10

regulation that referred to certain subsections of 40 C.F.R.
§ 52.21 without including an express date reference, incorporated
not only the version of the federal rule in existence at the time
of the regulation’s adoption, but all future amendments to the
federal rule as well.

Thus, PSNH says, when the EPA subsequently

amended the federal rule in late 2002–-altering the way emissions
were calculated for purposes of NSR permitting requirements, and
relaxing those requirements–-those amendments were automatically
adopted into New Hampshire’s SIP.

Under the 2002 amendments,

PSNH argues, it was not required to obtain permits for the
turbine projects as CLF claims, but could simply provide DES with
a projection of the emissions increases that would result from
those projects, and then monitor and report its emissions to DES
for ensuing five years, see DTE Energy, 711 F.3d at 643
(describing this framework)–-which it did.

CLF, for its part,

argues that the state’s regulation incorporates only the version
of the federal rule in existence at the time the regulation was
adopted, and therefore excludes the 2002 amendments.
The extent to which § 623.03(a) incorporates federal law
remains an unsettled issue of New Hampshire law.

In such

circumstances, this court “must make an informed prophecy of what
the state’s highest court would do in the same situation.”
Bartlett v. Mut. Pharm. Co., Inc., 731 F. Supp. 2d 135, 154

11

(D.N.H. 2010), aff’d, 678 F.3d 30 (1st Cir. 2012), rev’d on other
grounds, 133 S.Ct. 2466 (2013).

This court believes that the New

Hampshire Supreme Court would adopt CLF’s reading of the state
regulation.
New Hampshire courts apply general principles of statutory
construction in interpreting administrative rules.

See In re

Town of Pittsfield, 160 N.H. 604, 606 (2010); In re Parker, 158
N.H. 499, 502 (2009).

As a general rule, when a statute

incorporates all or part of another act by reference, whether the
adopting statute is affected by amendments to the adopted act
turns on whether the reference is general or specific.

See

generally 2B N.J. Singer & J.D. Singer, Sutherland Statutory
Construction, §§ 51:7-:8 (7th ed. 2012) (“Sutherland”)5; see also
82 C.J.S. Statutes § 357, at 478 (1999); F. Scott Boyd, Looking
Glass Law: Legislation by Reference in the States, 68 La. L. Rev.
1201, 1238-40 (2008).

“A general reference statute refers to the

law on a subject generally,” Sutherland, § 51:7, and “adopts the
law on the subject at the time the law is invoked, which includes
all amendments and modifications subsequent to the reference

5

The New Hampshire Supreme Court frequently relies upon the
Sutherland treatise when addressing novel issues of statutory and
regulatory construction. See, e.g., Cecere v. Loon Mtn. Rec.
Corp., 155 N.H. 289, 293 (2007); McKenzie v. City of Berlin, 145
N.H. 467, 471 (2000); Town of Nottingham v. Harvey, 120 N.H. 889,
895-96 (1980).
12

statute’s enactment,” id. § 51:8 (footnotes omitted).

“A statute

of specific reference, as the name suggests, refers specifically
to a particular statute by its title or section number,” id.
§ 51:7, and “incorporates provisions as they exist at the time of
adoption, without subsequent amendments,” id. § 51:8.
Section 623.03(a)’s incorporation plainly falls into the
latter category, as it refers not only to a specific section
number of the Code of Federal Regulations, but to specific
subsections within that section.

The general interpretive rule,

then, would dictate that the EPA’s 2002 amendments were not in
effect in New Hampshire during the relevant time frame, and that
PSNH remained subject to the preëxisting permitting regime.
The court acknowledges that, like most canons of
construction, the general/specific reference rule is not
absolute.

The Sutherland treatise declares that it does not

apply if the drafter “has expressly or by strong implication
shown its intention to incorporate subsequent amendments within
the statute.”

Sutherland, § 51:8; see also 82 C.J.S. Statutes

§ 357, at 478 (“[W]here the legislative intent to do so clearly
appears”–-presumably, as far as the court is concerned, in the
text of the statute itself–-“the adopting statute will include
subsequent modifications of the original act.”).

Neither

§ 623.03 itself nor any other part of the regulations, however,

13

contains a clear indication that the general rule does not apply.
And, while this court is not wont to search for a provision’s socalled “intent” in sources extrinsic to the text itself, PSNH
also has not identified any extratextual materials that support
such a conclusion.
In fact, in support of its reading of § 623.03, PSNH cites
only a single source (apart from the regulatory text itself–which, as just noted, favors CLF).

It points out that the EPA’s

statement approving of New Hampshire’s PSD permitting
requirements includes the following passage:
EPA notes that [§ 623.03] did not define a date of the
incorporated rule revision of 40 CFR 52.21. Without
this date, New Hampshire believes its PSD rules will
automatically incorporate and implement all future
revisions to 40 CFR 52.21 without the need for
additional state rulemaking.
Approval and Promulgation of Air Quality Implementation Plans;
New Hampshire, 67 Fed. Reg. 65,710, 65,711 (Oct. 28, 2002).
This brief discussion does not reliably communicate anything
about whether § 623.03 incorporates subsequent amendments to
§ 52.21.

At best, it is a secondhand account of a belief that

some unidentified person–-presumably at the DES, although that is
not evident from the quoted passage–-professed to have.

And, as

CLF points out, less than six months later the DES itself
disavowed that belief, stating in a letter to the EPA’s regional
administrator:
14

[A]lthough New Hampshire’s PSD rules have incorporated
by reference . . . the federal PSD rules, we do not
agree that the [incorporation by reference] effects an
automatic adoption of the NSR Reform rule program
elements as of March 3, 2003. We have consulted with
the Attorney General’s Office and have been advised
that, as a matter of state law, the [DES] is required
to initiate notice and comment rulemaking proceedings
to effect amendments to the state’s PSD rules.[6] Even
though the [DES] did not include an incorporation date
in the PSD rules, as was done for the state’s Nonattainment program rules, the lack of the incorporation
date does not, in and of itself, allow the Department
to implement and enforce revisions made to federal
regulations.
Letter from Robert R. Scott, Chief Air Programs Manager, Air
Resources Division, N.H. DES, to Robert Varney, Regional
Administrator, USEPA Region I (Feb. 14, 2003).

Similarly, the

EPA later indicated that it did not put any stock in that belief,
commenting that “New Hampshire’s PSD SIP consists, in the main,
of an incorporation by reference of 40 C.F.R. § 52.21 as it stood

6

This is consistent with advice the New Hampshire Attorney
General had previously given to the DES. In a 1988 advisory
letter, the Attorney General counseled the DES that it lacked the
authority “to incorporate EPA regulations in a manner which will
automatically adopt all future amendments by EPA without
participating in the rulemaking process of [N.H. Rev. Stat. Ann.]
Ch. 541-A,” explaining that if the DES “should decide to simply
incorporate into its rules those of EPA, it should adopt and
specify the particular edition of the EPA regulation which is
being incorporated,” and “[t]he substantive text of that citation
will remain in effect, regardless of changes by the federal
government . . . .” Administrative Rules for Water Testing
Laboratory Certification, N.H. Att’y Gen. Op. No. 0-88-036, 1988
WL 483308 (Oct. 4, 1988). In light of this previous advice, it
is doubtful that DES believed, at the time it promulgated
§ 623.03, that it had the authority to incorporate future
revisions to § 52.21.
15

when the PSD SIP was approved”--i.e., before the amendments in
2002.

Approval and Promulgation of Implementation Plans; New

Hampshire: Prevention of Significant Deterioration, 76 Fed. Reg.
34,630, 34,632 (June 14, 2011).
The court accordingly cannot agree with PSNH’s position
that, at the time of the turbine projects, it was subject to the
NSR permitting regime introduced by the EPA’s 2002 amendments.
As they existed at the time of those projects, the applicable New
Hampshire rules incorporated the federal regulatory scheme as it
existed prior to the 2002 amendments.
In its reply memorandum, PSNH attempts to hedge its bet,
arguing that CLF has failed to state a claim even under the pre2002 version of the NSR permitting regime.

At oral argument,

PSNH also sought to convince the court of this position.

This

court, however, does not ordinarily address arguments advanced
for the first time in reply.

See Doe v. Friendfinder Network,

Inc., 540 F. Supp. 2d 288, 303 n.16 (D.N.H. 2008).

It will not

deviate from that practice in this case–-particularly because
PSNH has not directed the court to the relevant regulatory text
in its memoranda, instead preferring to rely upon secondary
sources for the broad propositions it advances.

The court is not

inclined “to do counsel’s work, create the ossature for the
argument, and put flesh on its bones,” especially where, as here,

16

counsel otherwise briefed and argued its case so ably, albeit
unsuccessfully.7

Ruiz-Sánchez v. Goodyear Tire & Rubber Co., 717

F.3d 249, 254 (1st Cir. 2013).

PSNH’s motion to dismiss is

denied.
B.

CLF’s motion to amend

CLF seeks leave of court to amend the complaint to make
additional allegations in Counts 1 and 3, and to add a claim–proposed Count 8--alleging that PSNH has failed to comply with
the “New Source Performance Standards” (“NSPS”) established by 42
U.S.C. § 7411.

Because the time within which CLF could amend its

complaint as a matter of right has elapsed, see Fed. R. Civ. P.

7

Similarly, the court does not address PSNH’s undeveloped
arguments–-advanced in footnotes to its opening memorandum--that
this case should be dismissed for reasons of ripeness, comity,
abstention, or res judicata. See Memo. in Supp. of Mot. to
Dismiss (document no. 15-1) at 12-13 n.9, 16 n.12. PSNH remains
free to renew those arguments in a different procedural posture.
The same is true of PSNH’s argument that the “additional
modifications” referred to in paragraphs 50-52 and 67 of the
complaint “have nothing to do with the turbine replacement” and
are simply “routine maintenance tasks” that “cannot be aggregated
for purposes of NSR applicability.” Memo. in Supp. of Mot. to
Dismiss (document no. 15-1) at 4, 18; see also Reply (document
no. 27) at 10. While that may well be true, at the pleading
stage, this court “accept[s] as true all well-pleaded facts
alleged in the complaint and draw[s] all reasonable inferences
therefrom in the pleader’s favor.” Nystedt v. Nigro, 700 F.3d
25, 30 (1st Cir. 2012). CLF has sufficiently alleged that the
“additional modifications” were associated with, and took place
at the same time as, the turbine projects. Any argument to the
contrary must be presented to the court by way of a motion for
summary judgment (or equivalent procedural mechanism).
17

15(a)(1), but the court has not yet entered a scheduling order,
CLF’s motion is subject to the standard set forth in Rule
15(a)(2) of the Federal Rules of Civil Procedure.

See, e.g.,

Somascan, Inc. v. Philips Med. Sys. Nederland, B.V., 714 F.3d 62,
64 (1st Cir. 2013).

That rule directs the court to “freely give

leave” to amend the complaint “when justice so requires.”

Fed.

R. Civ. P. 15(a)(2).
This standard is a relaxed one, but leave to amend may be
denied in circumstances involving “undue delay, bad faith,
futility, or the absence of due diligence on the movant’s part.”
Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006).

PSNH

invokes the first and third grounds, arguing that CLF unduly
delayed bringing its new claim, and that the proposed amendment
would be futile in any event because the notice of intent to sue
that CLF sent it prior to seeking leave to amend is deficient.
Neither argument prevails.
PSNH’s argument that CLF unreasonably delayed filing its
NSPS claim requires little discussion.

PSNH is correct that the

courts of this circuit typically disfavor amendments to the
complaint that come well after the case has been filed.

See,

e.g., id. at 30-31; Steir v. Girl Scouts of the USA, 383 F.3d 7,
12 (1st Cir. 2004).

It is also true that CLF did not notify PSNH

or the court of its desire to amend the complaint until this case

18

had been pending for over 18 months.

That, however, is not

grounds for denying leave to amend.

The principal reason for

courts’ reluctance to entertain late amendments is, as the Court
of Appeals has explained, that “protracted delay” entails
“burdens on the opponent and the court,” and can “requir[e] a reopening of discovery with additional costs, a significant
postponement of the trial, and a likely major alteration in trial
tactics and strategy,” among other things.
12.

That is not the case here.

Steir, 383 F.3d at

As a result of PSNH’s Rule 12

motion practice (some of which successfully resulted in the
dismissal of nearly half the claims in the case), discovery has
not commenced, no trial has been scheduled, and PSNH has not yet
even filed an answer to the complaint.

Under these

circumstances, permitting CLF to amend its complaint would hardly
be burdensome to either PSNH or the court.

And, in light of the

negligible burden that would result from the amendment, the fact
that CLF could have brought its new claim in an earlier
proceeding, or earlier in this proceeding–-both matters that PSNH
focuses on in its memorandum in opposition to the motion to
amend–-carries little weight in the analysis.
PSNH’s argument that Count 8 would be futile because CLF’s
notice of intent to sue was deficient also fails.

The CAA

provides that “[n]o action may be commenced” under its citizen

19

suit provision unless the plaintiff who would seek to file such a
suit has given 60 days’ advance notice of the violation to the
EPA, the state in which the alleged violation is occurring, and
the alleged violator.

42 U.S.C. § 7604(b)(1)(A).

Our Court of

Appeals has previously held that such notice provisions are not
“technical wrinkle[s] or superfluous formalit[ies] that federal
courts may waive at will,” Garcia v. Cecos Int’l, Inc., 761 F.2d
76, 79 (1st Cir. 1985), but “mandatory conditions precedent to
the filing of a citizen suit,” Paolino v. JF Realty, LLC, 710
F.3d 31, 36 n.4 (1st Cir. 2013).

It has also advised that such

requirements are to be applied “strictly.”

Water Keeper Alliance

v. U.S. Dep’t of Def., 271 F.3d 21, 29 (1st Cir. 2001); see also
Hallstrom v. Tillamook Cnty., 493 U.S. 20, 31 (1989) (demanding
“strict adherence” to pre-suit notice provisions).

Nonetheless,

even when the notice requirement is strictly applied, the record
reveals that CLF’s notice letter to the EPA, New Hampshire, and
PSNH was sufficient to satisfy it.
Pursuant to EPA regulations, a pre-suit notice under
§ 7604(b)(1)(A)
shall include sufficient information to permit the
recipient to identify the specific standard,
limitation, or order which has allegedly been violated,
the activity alleged to be in violation, the person or
persons responsible for the alleged violation, the
location of the alleged violation, the date or dates of
such violation, and the full name and address of the
person giving the notice.
20

40 C.F.R. § 54.3(b).

CLF’s notice letter, which it sent to the

required recipients earlier this year, checks all these boxes:
•

It identifies “the specific standard [or] limitation”
violated as well as “the activity alleged to be in
violation.” The letter asserts (as did CLF’s original presuit notice letter, filed several years ago) that PSNH did
not obtain certain permits–-identified by reference to the
relevant regulatory sections–-before undertaking the 2008
and 2009 turbine projects. It further asserts that during
those projects, PSNH made changes to its coal-fired boiler
and associated equipment that increased MK2’s maximum hourly
emissions of particulate matter, NOx, and SO2 to a level
above the maximum hourly emissions achievable during the
previous five years, thus triggering the NSPS. It alleges
that, after the projects, emissions from MK2 “repeatedly
and/or continuously exceeded the NSPS emission rate limits
for [particulate matter], NOx, and SO2, and the NSPS opacity
standards for [particulate matter] emissions,” again citing
the relevant regulatory sections.

•

It identifies PSNH as “the person or persons responsible for
the alleged violation.”

•

It identifies the “Merrimack Station facility located at 97
River Road in Bow, New Hampshire” as “the location of the
alleged violation.”

•

It identifies “the date or dates of [the] violation” as
“between 2008 and the present.”

•

The letter is signed by and provides “the full name and
address of the person giving the notice,” CLF’s counsel in
this suit.

See Letter from Christophe G. Courchesne et al., Conservation Law
Foundation, to Gary A. Long et al., Public Service Company of New
Hampshire (March 28, 2013) (document no. 56-1).
PSNH does not seriously contest that all this information
was contained in CLF’s letter.

It instead decries “CLF’s failure

21

to include any data or analysis,” such as the preliminary expert
report CLF has provided the court along with its motion to amend,
in its notice letter.

This, PSNH protests, “den[ied] PSNH and

DES the opportunity to review [that data] and take appropriate
action.”

PSNH has not, however, identified any statutory or

regulatory provision that required CLF to provide any and all
data or analyses in its possession along with its notice.

Cf.

Paolino, 710 F.3d at 38 (Clean Water Act’s similar notice
provision does not require a plaintiff to “list every specific
aspect or detail of every alleged violation, or describe every
ramification of a violation” (citation and internal quotation
marks omitted)).

It instead cites a case in which a federal

district court in another circuit concluded that a prospective
citizen suit plaintiff under the Clean Water Act had “the duty to
provide as much information as possible” in his pre-suit notice,
reasoning that “[a]llowing a plaintiff to provide minimal
information in a notice letter before bringing suit would place a
heavy burden on alleged violators and enforcement agencies alike,
a burden inconsistent with the policy goals of the notice
requirement . . . .”

Atwell v. KW Plastics Recycling Div., 173

F. Supp. 2d 1213, 1221-22 (M.D. Ala. 2001).
That reasoning may also be consistent with the policy goals
underlying the CAA’s notice requirement.

22

But “this court is not

free to disregard” plain statutory or regulatory language “in
favor of what courts in other jurisdictions have identified as
its underlying legislative intent.”

West v. Bell Helicopter

Textron, Inc., — F. Supp. 2d —, 2013 WL 4805802, at *19 (D.N.H.
Sept. 9, 2013) (citing United States v. Jimenez, 507 F.3d 13, 20
(1st Cir. 2007)).

As just noted, PSNH has identified (and this

court has found) no statute or regulation that imposes any “duty
to provide as much information as possible” with a pre-suit
notice under the CAA, so long as the requirements of 42 U.S.C.
§ 7604(b)(1)(A) and 40 C.F.R. § 54.3(b) are otherwise met.

In

fact, the regulation’s language suggests a contrary conclusion,
requiring only that the prospective plaintiff “include sufficient
information”–-not “all information available”--about the alleged
violation.

40 C.F.R. § 54.3(b) (emphasis added).

CLF’s pre-suit notice contained information sufficient to
“identif[y] the potential plaintiffs, provide[] basic contact
information, and allow[ PSNH] to identify and remedy the alleged
violations.”

Paolino, 710 F.3d at 34.

It therefore satisfied

the requirements of 40 C.F.R. § 54.3(b) and the CAA.

PSNH has

also argued–-both in its memorandum and quite passionately at
oral argument--that the proposed amendment would be futile
because the claims and allegations CLF seeks to add do not state
a plausible claim to relief.

In advancing this argument,

23

however, PSNH again confuses CLF’s duty to allege facts
sufficient to “state a claim to relief that is plausible on its
face,” Iqbal, 556 U.S. at 678, with CLF’s ability to ultimately
prove the facts alleged with emissions data and expert testimony.
Again, such a challenge--to CLF’s evidence, rather than its
allegations–-is best presented to the court by way of a motion
for summary judgment or its equivalent.

See n.7, supra.

CLF’s

motion to amend is accordingly granted.
IV.

Conclusion
For the reasons set forth above, PSNH’s motion to dismiss

for failure to state a claim8 is DENIED, and CLF’s motion to
amend the complaint9 is GRANTED.

Within 48 hours counsel for CLF

shall electronically refile the pleading attached to the Motion
to Amend using the appropriate event in CMECF.
The court notes that the proposed amended complaint includes
Counts 5-7, which were previously dismissed.

See n.1, supra.

granting CLF leave to amend the complaint, the court does not

By

intend to revive those counts.

The parties shall conduct their

litigation accordingly.

8

Document no. 15.

9

Document no. 56.
24

SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

December 17, 2013

Caitlin Peale, Esq.
Christophe G. Courchesne, Esq.
N. Jonathan Peress, Esq.
Michael D. Freeman, Esq.
Spencer M. Taylor, Esq.
Barry Needleman, Esq.
Jarrett B. Duncan, Esq.
Linda T. Landis, Esq.
Wilbur A. Glahn, III, Esq.
Thomas A. Benson, Esq.
Elias L. Quinn, Esq.
George P. Sibley, Esq.
Makram B. Jaber, Esq.
Stephen H. Roberts. Esq.

25