Rogue Advocates v. Mountain View Paving, Inc

Filing 103

ORDER: Granting in Part Denying in Part Motion for Summary Judgment 82 ; Denying Motion for Partial Summary Judgment 89 ). Please access entire text by document number hyperlink. Ordered and Signed on 11/15/2016 by Magistrate Judge Mark D. Clarke. (rsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

ROGUE ADVOCATES, an Oregon
nonprofit membership corporation,

Case No. 1:15-cv-01854-CL

Plaintiff,
v.
ORDER
MOUNTAIN VIEW PAVING, INC., an
Oregon corporation,
Defendant.

CLARKE, Magistrate Judge
Plaintiff Rogue Advocates brings this citizen suit against Defendant Mountain View
Paving, Inc., under Section 304 of the Clean Air Act ("CAA"), 42 U.S.C. § 7604. Plaintiff
alleges Defendant's operation of an asphalt batch plant, as well as associated activities, on its
property violated its federally enforceable air quality permit, resulting in repeated violations of

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the CAA from 2010 to the present. Plaintiff seeks declaratory relief, injunctive relief, civil
penalties, and attorney fees and costs associated with bringing this action. This case comes
before the Court on Defendant's motion for summary judgment (#82) and Plaintiffs crossmotion for partial summary judgment (#89). For the reasons below, Defendant's motion is
GRANTED in part and DENIED in part and Plaintiffs motion is DENIED. 1

FACTUAL BACKGROUND
In 2001, Defendant began operating an asphalt batch plant on land it purchased from
Howard DeYoung, the former owner, who had purchased the land in 1963. Def.'s Mot. for
Summ. J. Ex. 2, at 4 [ECF No. 82.]. The land is located in Jackson County, Oregon. Def.'s Mot.
for Summ. J. Ex. 1, at 1. Prior to Defendant's purchase, DeYoung engaged in an aggregate
mining operation and leased the land to various companies, who, from 1963 to 2000, operated a
concrete batch plant on the property. Def.'s Mot. for Summ. J. Ex. 2, at 4. At the time the first
batch plant was installed, the property was not subject to zoning or land use regulations, making
use of a batch plant permissible. Def.' s Mot. for Summ. J. Ex. 3, at 2. It was not until 1973 that
the land first became subject to zoning restrictions, which placed limitations on land use. Def.'s
Mot. for Summ. J. Ex. 2, at 4. Neither the initial 1973 zoning restrictions nor the current zoning
restrictions allow the use of batch plants on the property. Def.'s Mot. for Summ. J. Ex. 3, at 2.
Jackson County Land Development Ordinance ("LDO") does, however, provide that a use
lawfully established prior to a contrary zoning restriction may be continued after enactment of
the restriction. Def.'s Mot. for Summ. J. Ex. 2, at 6. The LDO terms this a "nonconforming use."
Def.'s Mot. for Summ. J. Ex. 3, at 2.
When Defendant purchased the property in 2001, De Young continued to lawfully operate
a concrete batch plant on the property as a nonconforming use. Def.'s Mot. for Summ. J. Ex. 2,
1

The parties have consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. § 636(c)(l).

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at 3, 8. Upon purchase, Defendant replaced the concrete batch plant with an asphalt batch plant
and crusher. Def.'s Mot. for Summ. J. Ex. 2, at 4. In operating the asphalt batch plant, Defendant
would have raw material delivered to the site. Def.'s Mot. for Summ. J. Ex. 2, at 5. The raw
material was stored in stock piles, eventually "refined through the crusher, mixed with asphalt in
the batch plant, [with] the resulting product [] transported off-site for paving projects." Def.'s
Mot. for Summ. J. Ex. 2, at 5. During operation, the batch plant released various contaminants,
including carbon monoxide, sulfur dioxide, and nitrogen oxides. PL 's Mot. for Prelim. Inj. Ex. 61, at 37. Because it released such contaminants, Defendant was required to obtain an Air
Contaminant Discharge Permit ("ACD permit") from the Oregon Department of Environmental
Quality ("DEQ"). Def.'s Mot. for Summ. J. Ex. 4, at 2-3; Or. Admin. R. ("OAR") § 340-2160020(3). Defendant "consistently reported both the volume of asphalt production and the Plant's
discharge of pollutants to DEQ .... " Def.'s Mot. for Summ. J. Ex. 4, at 3.
Sometime in the 1980s, Mountain View Estates, an age-restricted residential retirement
community, was built adjacent to the property. Hudson Deel.

if 4 [ECF No. 11.]. Beginning in

2011, Defendant increased operations on the land, and Plaintiff, acting with its members at
Mountain View Estates, as well as other nearby residents, lodged "code complaints" with
Jackson County (the "County"), asserting Defendant's batching operation burdened the nearby
property owners with significant noise and odor and violated local zoning ordinances. Hudson
Deel.

iii! 8-10; Rouse Deel. if 6 [ECF No. 10.]. The complaints resulted in "code enforcement

hearings"; however, "nothing came out of that process other than a minimal fine," as "the
County[] never required [Defendant] to stop its operations." Hudson Deel.

ii 10. Indeed, a 2012

DEQ e-mail stated that, "as the County views it currently, the facility is allowed to operate and
be placed at its current site," and "until [DEQ] hears otherwise, the County has determined that

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the land-use, for this plant to operate at this location, is currently allowed." Def.'s Mot. for
Summ. J. Ex. 7.
Due to the ongoing disputes, however, in September 2012, Defendant filed an application
with the Jackson County Planning Division Staff ("Planning Division") seeking verification that
its asphalt batch plant was a lawfully established nonconforming use. Def.'s Mot. for Summ. J.
Ex. 3, at 2. On the same day, Defendant filed an application with the Planning Division for
approval of a floodplain development permit; a significant portion of Defendant's property is
located in the regulatory floodway of Bear Creek, a major Rogue River tributary, and Defendant
did not hold a floodplain development permit, as required by LDO 7.2.2(C). Def.'s Mot. for
Summ. J. Ex. 3, at 2; Pl.'s Mot. for Prelim. Inj. Ex. 6-5, at 2. On March 25, 2013, the Planning
Division issued a decision approving both applications. Def.'s Mot. for Summ. J. Ex 3, at 2-3.
Plaintiff timely appealed the Planning Division's decision to a County hearings officer. Def.'s
Mot. for Summ. J. Ex. 3, at 3. On September 26, 2013, the hearings officer found that the asphalt
batch plant constituted a lawful nonconforming use, as the prior concrete batch plant and the
then-current asphalt batch plant were effectively equivalent, and thus the conversion to the
asphalt batch plant did not require County approval. Def.'s Mot. for Summ. J. Ex. 3, at 3. The
hearings officers denied the requested nonconforming use verification, however, finding that a
"shop structure," as well as other structures added to the property after 2001, "were unauthorized
expansions of the nonconforming use" and Defendant had not sought County approval for these
expansions. Def.'s Mot. for Summ. J. Ex. 3, at 3. The hearings officer also vacated the floodplain
development permit due to the finding that there were unauthorized expansions of the
nonconforming use. Pl.'s Mot. for Prelim. Inj. Ex. 6-5, at 3.

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Following the hearings officer's decision, the County cited Defendant for violating
floodplain and building permit ordinances. Def.'s Mot. for Surnm. J. Ex. 10. Thereafter,
Defendant and the County entered into a stipulated order, whereby the County permitted
Defendant "to continue to engage in nonconforming uses while [it] proceed[ed] through the
County's land use process." Def.'s Mot. for Surnm. J. Ex. 11, at 2; see also Def.'s Mot. for
Surnm. J. Ex. 10. Additionally, Defendant applied for, and the County granted, a new floodplain
permit, which authorized the "operation of the limited asphalt batch plant" within the floodplain.
Def.'s Mot. for Surnm. J. Ex. 2, at 26.
Meanwhile, Plaintiff appealed the hearings officer's decision to the Land Use Board of
Appeals for the State of Oregon ("LUBA"), arguing, among other things, that the hearings
officer erred in concluding that an asphalt batch plant constituted the "same use" as a concrete
batch plant. Def.'s Mot. for Surnm. J. Ex. 2, at 15. Plaintiff argued that replacing one type of
batch plant with another was an alteration and, therefore, needed to be approved by the County.
Def.'s Mot. for Surnm. J. Ex. 2, at 15. LUBA agreed with Plaintiff, stating that "even if the two
types of batch plants constitute the 'same use,' replacing one with the other constitutes, at a
minimum, an alteration that requires county review and approval." Def.'s Mot. for Surnm. J. Ex.
2, at 22. LUBA, however, did not feel that the hearings officer had adequately fleshed out "the
nature and extent" of the previously existing, and lawful, nonconforming use. Def.' s Mot. for
Surnm. J. Ex. 2, at 22. Therefore, rather than reversing, LUBA remanded the case to the hearings
officer to assess this issue. Def.' s Mot. for Surnm. J. Ex. 2, at 22. 2

2

1n a separate opinion issued on August 26, 2014, LUBA assessed the validity of Defendant's second
floodplain permit, which Plaintiff had also appealed, arguing it was invalid. Def.'s Mot. for Summ. J. Ex. 3. LUBA
held that a floodplain permit could not be issued until the County had completed remand ofLUBA's first order and
adequately assessed the scope of the nonconforming use. Def.'s Mot. for Summ. J. Ex. 3, at 5.

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After LUBA's order, but before the hearings officer conducted a remand hearing, the
County reaffirmed its position that Defendant could continue to operate the asphalt batch plant
while the hearings officer assessed the extent of the prior nonconforming use. Def.' s Mot. for
Summ. J. Ex. 11, at 2. A week later, on August 25, 2014, the hearings officer conducted a
remand hearing to consider the parameters of the nonconforming use. Def.' s Mot. for Summ. J.
Ex. 12, at 2. In an order issued on October 28, 2014, the hearings officer determined that the
"conversion of the concrete batch plant to an asphalt batch plant require[ d] review and approval
[by the County] as an alteration of a nonconforming use." Def.'s Mot. for Summ. J. Ex. 12, at 8.
Subsequent to the October 2014 order, the County issued code violations against
Defendant for, among other things, installing an asphalt batch plant without first requesting an
alteration permit. Def.'s Mot. for Summ. J. Ex. 15. Accordingly, there was a third hearing to
determine whether Defendant could continue to operate the asphalt batch plant while Defendant
"pursue[d] further applications for a final determination about the extent of the nonconforming
use." Def.'s Mot. for Summ. J. Ex. 13, at 2. This time, the hearings officer determined that
Defendant could not continue to operate the batch plant without first getting nonconforming-use
approval from the County. Def.'s Mot. for Summ. J. Ex. 13, at 3. Moreover, the officer
determined that Defendant unlawfully operated the batch plant between the October 2014 order
and the then-present order, dated December 30, 2014. Def.'s Mot. for Summ. J. Ex. 13, at 3. The
hearings officer did point out, however, that he did not believe Defendant had been acting in bad
faith and was "sensitive to the fact that [Defendant] appear[ed] to be taking necessary and
appropriate measures to resolve these matters by pursuing applications for nonconforming use."
Def.' s Mot. for Summ. J. Ex. 13, at 3. As such, the officer suspended the bulk of the fine the
County had levied against Defendant. In all, Defendant was fined $400 and provided thirty days

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from the date of the order to "apply for all necessary permits." Def.' s Mot. for Summ. J. Ex. 13,
at 4.
Within the thirty-day limit, Defendant filed an application for approval of a
nonconforming use alteration. Def.'s Mot. for Summ. J. Ex. 1, at 1. On March 19, 2015, the
Planning Division approved Defendant's alteration from a concrete batch plant to an asphalt
batch plant. Def. 's Mot. for Summ. J. Ex. 18. Plaintiff timely appealed the Planning Division's
decision. Def.'s Mot. for Summ. J. Ex. 1, at 1. On September 24, 2015, a hearings officer issued
a decision determining that the asphalt batch plant was "more intensive" than the concrete batch
plant, both in the number of employees and the "continuity" of the plant's operation over the
course of the year, resulting in "a greater adverse impact on the surrounding neighborhood."
Def.'s Mot. for Summ. J. Ex. 19, at 2. The officer reversed the Planning Division's decision and
denied Defendant's application. Def.'s Mot. for Summ. J. Ex. 1, at 41.
Four days after the hearings officer's decision denying Defendant's application, the
County notified Defendant that it would impose an $800-per-day fine for every day Defendant
continued to operate the batch plant without the necessary approvals. Def.'s Mot. for Summ. J.
Ex. 25, at 3. About a week later, DEQ sent a notification to Defendant informing Defendant
DEQ had been apprised of the fact that Defendant "d[id] not have land use approval to operate
its portable asphalt facility" at its current location. Def.'s Mot. for Summ. J. Ex. 16, at 1. DEQ
further stated that failure to comply with local land use laws was in direct violation of
Defendant's ACD permit. Def.'s Mot. for Summ. J. Ex. 16, at 1. DEQ informed Defendant that
continued operation of the batch plant would result in formal enforcement action against
Defendant. Def.'s Mot. for Summ. J. Ex. 16, at 2.

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Facing immediate enforcement from both the County and DEQ, Defendant appealed the
hearings officer's decision denying Defendant's application to LUBA. Def.'s Mot. for Summ. J.
Ex. 19. Defendant also moved for a stay of the hearings officer's decision, arguing the hearings
officer misapplied the facts and Oregon law. Def.'s Mot. for Summ. J. Ex. 25, at 1, 6. LUBA
granted Defendant's stay request and enjoined the hearings officer's order pending its decision
on Defendant's appeal. Def.'s Mot. for Summ. J. Ex. 25, at 14. A few months later, on January
11, 2016, LUBA lifted the stay and upheld the hearings officer's denial of Defendant's
application, holding that Defendant "present[ed] no basis for LUBA to second-guess the hearings
officer." Def.'s Mot. for Summ. J. Ex. 19, at 3.
On January 21, 2016, the County again issued a citation for unlawfully operating the
asphalt batch plant and conducting associated activities. Def.'s Mot. for Summ. J. Ex. 26, at 10.
The County argued Defendant wrongfully engaged in these activities from September 24, 2015,
to January 21, 2016. Def.'s Mot. for Summ. J. Ex. 26, at 10. On March 18, 2016, a hearings
officer determined that Defendant "allowed operation of the Asphalt Plant in violation of' the
September 2015 order "from September 25, 2015 until LUBA granted a stay on October 21,
2015," a total of twenty-six days. Def.'s Mot. for Summ. J. Ex. 26, at 14. The hearings officer
established that Defendant was not in violation of any ordinance for operating the batch plant
while LUBA's stay was in place. Def.'s Mot. for Summ. J. Ex. 26, at 14. Additionally, the
officer found "no evidence the Asphalt Plant operated after January 11, 2016." Def.' s Mot. for
Summ. J. Ex. 26, at 9, 14. Consequently, the hearings officer imposed a fine against Defendant
for $5,200.00, amounting to $200 per day for twenty-six days. Def.'s Mot. for Summ. J. Ex. 26,
at 16.

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Notably, the hearings officer also determined that Defendant had: (1) unlawfully
constructed an office building without a building permit and wired the office building without an
electrical permit; (2) impermissibly allowed the accumulation of solid waste on the property; and
(3) operated the asphalt batch plant and the office building within a flood-hazard area without
obtaining the required floodplain permits. Def.'s Mot. for Summ. J. Ex. 26, at 14-15. The
hearings officer held that, excluding the batch plant-which ceased operations on January 11,
2016-Defendant had continuously engaged in these violations from September 25, 2015, until
the citation was issued on January 21, 2016, representing an ongoing "violation period of 119
days." Def.'s Mot. for Summ. J. Ex. 26, at 14-15. The hearings officer imposed an additional
$16,500 in fines for these violations. In total, Defendant was fined $21,700.00. Def.'s Mot. for
Summ. J. Ex. 26, at 16.
Defendant has since moved its asphalt batch plant to a separate location, Weaver Deel.
Ex. 28; Second Hamilton Deel.

~

7 [ECF No. 91.], and the County is currently allowing

Defendant to operate its batch plant at the new location. Weaver Deel. Ex. 28, at 3. However,
Defendant apparently continues to engage in associated activities on the property; there have
been reports of "trucks and equipment going back and forth on the property," and Defendant
acknowledges it "intends to continue all activities on the property except for the Asphalt Batch
Plant," as the incidental activities, Defendant argues, "are independent of the production of
asphalt and are not dependent upon the production of asphalt." Second Hamilton Deel.

~

4;

Def.'s Resp. to Pl.'s Interrog. No. 9 [ECF No. 79.]. On August 29, 2016, however, LUBA
determined that Defendant was improperly conducting "accessory uses" on the property, as "the
LDO does not allow processing aggregate material in the absence of aggregate mining on the
site, or processing of material that is not 'naturally occurring material."' Pl.' s Partial Cross-Mot.

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for Summ. J. Ex. 7, at 10 [ECF No. 89.]. Accordingly, at least some of Defendant's associated
activities appear to be in violation of local land use laws.
Meanwhile, on September 30, 2015, while the validity of Defendant's asphalt batch plant
was moving through Oregon's land use system, Plaintiff filed the present suit in this Court. See
Compl. [ECF No. l.]. Plaintiffs lawsuit is based on a provision of the CAA that allows a private
plaintiff to initiate judicial proceedings against a defendant "who is alleged to have violated ...
or to be in violation of ... an emission standard or limitation." Compl., at ilil 35-37; 42 U.S.C. §
7604(a)(l). Plaintiff notes that the phrase "violation of ... an emission standard or limitation"
includes violations of any state or local permit term or condition. Compl., at

il

23 (citing 42

U.S.C. § 7604(f)(4)). Plaintiff argues that Defendant's operation of its asphalt batch plant, as
well as associated activities, was, and continues to be, in violation of its ACD permit, which
requires that Defendant be in compliance with all local land use regulations. Plaintiff argues
Defendant has never obtained the proper land use approvals from the County. While Defendant
submitted numerous applications seeking land use approval for its batch plant, and Planning
Staff initially approved each application, Plaintiff points to the fact that each of Defendant's
applications were ultimately denied by either the County or LUBA. Accordingly, Plaintiff
maintains that Defendant was never operating its batch plant or its associated activities lawfully
and, thus, at all times, was in violation of its ACD permit. 3
In addition to its current claims for relief, now before the Court on the parties' crossmotions for summary judgment, Plaintiff originally requested a preliminary injunction, enjoining
Defendant from operating its batch plant until the Court issued a final judgment on the merits.
3

Plaintiff argues, in the alternative, that Defendant has, at all times, been in violation of the CAA for
operating its batch plant without any of the requisite zoning permits. The Court finds no meaningful difference
between Plaintiff's alternative argument and its primary argument; both contend Defendant failed to procure local
land use approval for its batching operation and all associated activities, thus violating the CAA. Consequently, the
Court treats them as the same argument.

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Mot. for Prelim. Inj. [ECF No. 6.]. On January 21, 2016, ten days after Defendant ceased
operating its batch plant on the property, the parties stipulated to a preliminary injunction, which
the Court signed the next day. [ECF Nos. 60, 61 & 62.]. The preliminary injunction precluded
Defendant from operating its batch plant on the property but specifically provided that Defendant
"has not stipulated to cease using any other equipment or vehicles on its property[,] including,
but not limited to, the rock crusher, screen plant, and stock piles." Order for Stipulated
Preliminary Injunction, at 4. Additionally, the preliminary injunction neither prohibited nor
required Defendant to dismantle or move its batching operating to a separate facility. Order for
Stipulated Prelim. Inj., at 4.
Defendant now moves for summary judgment. Defendant argues Plaintiffs only
argument is that Defendant "is in violation of the CAA solely because it does not have County
approvals, which represents a technical violation of [D]efendant's [ACD] Permit requiring such
approvals." Def.'s Br. in Supp. of Its Mot. for Summ. J., at 1-2. Whether or not Defendant
procured the necessary land use approvals, however, "is a matter committed to the exclusive
jurisdiction of the County and [LUBA]," and, Defendant argues, the evidence aptly demonstrates
that Defendant "had approval from the County and LUBA to operate its batch plant," as well as
all associated activities, at all relevant times. Def.' s Br. in Supp. of Its Mot. for Summ. J ., at 2;
Def.'s Br. in Supp. of Its Mot. for Summ. J., at 19. This Court, Defendant contends, is therefore
without jurisdiction to second guess the County's and LUBA's approval. Def.'s Br. in Supp. of
Its Mot. for Summ. J., at 2. Defendant cites 42 U.S.C. § 7431 for the proposition that nothing in
the CAA "constitutes an infringement on the existing authority of counties and cities to plan or
control land use, and nothing in [the CAA] provides or transfers authority over such land use."

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Finally, in the alternative, Defendant argues that even if the Court ultimately determines
Defendant was in violation of its ACD permit, and therefore the CAA, Plaintiffs claims are
moot because Defendant has moved its batching operation to a separate facility "upon LUBA's
order of January 11, [2016]." Def.'s Br. in Supp. of Its Mot. for Summ. J., at 26. Consequently,
any violations Defendant committed are not reasonably likely to recur, mooting Plaintiffs
request for declaratory relief, injunctive relief, and civil penalties, and necessitating summary
judgment in Defendant's favor.
Plaintiff filed a cross-motion for partial summary judgment. Plaintiffs cross-motion is
solely on the issue of whether Defendant's asphalt batching operation violated the CAA, arguing
the record undisputedly demonstrates Defendant operated its batch plant without local land use
approval, in violation of its ACD permit and thus the CAA. Unlike Defendant, Plaintiff does not
move for summary judgment on the issue of whether Defendant's associated activities violated
federal environmental laws, but it does object to Defendant's summary judgment motion on this
issue. The Court will address the batching operation and the associated activities separately.

LEGAL STANDARD
Summary judgment shall be granted when the record shows that there is no genuine
dispute as to any material of fact and that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The
moving party has the initial burden of showing that no genuine issue of material fact exists.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Devereaux v. Abbey, 263 F.3d 1070, 1076
(9th Cir. 2001) (en bane). The court cannot weigh the evidence or determine the truth but may
only determine whether there is a genuine issue of fact. Playboy Enters., Inc. v. Welles, 279 F.3d

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796, 800 (9th Cir. 2002). An issue of fact is genuine "if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
When a properly supported motion for summary judgment is made, the burden shifts to
the opposing party to set forth specific facts showing that there is a genuine issue for trial. Id. at
250. Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion
for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the
opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts
which show there is a genuine issue for trial. Devereaux, 263 F.3d at 1076. In assessing whether
a party has met its burden, the court views the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995).

DISCUSSION
I.

Jurisdiction
The CAA vests the Court with jurisdiction to determine whether or not Defendant has

violated the CAA. Congress passed the CAA to avert pollution and to "protect and enhance the
quality of national air resources." Communities for a Better Env 't v. Cenco Ref Co., 180 F.
Supp. 2d 1062, 1068 (C.D. Cal. 2001) (citing 42 U.S.C. § 7401). The CAA provides a regulatory
framework that is "designed to prevent and control air pollution." Id. The Environmental
Protection Agency (the "EPA") is directed to set forth national ambient air quality standards
("NAAQS") at a level adequate to protect the public's health and welfare. 42 U.S.C. § 7409(a)(b).

To achieve the NAAQS laid out by the EPA, each state must develop a state
implementation plan ("SIP"). 42 U.S.C. § 7410(a). The EPA is permitted to approve a SIP only
ifthe plan satisfies all requirements of the CAA. 42 U.S.C. § 7410(a)(3)(A), 7502(b). Upon EPA

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approval, the SIP's requirements and commitments become lawfully binding upon the state. 42
U.S.C. § 7413(a)(2).
The EPA conditionally approved Oregon's SIP on June 24, 1980; the SIP was approved
without conditions on November 5, 1981. Nw. Envtl. Def Ctr. v. Cascade Kelly Holdings LLC,
155 F. Supp. 3d 1100, 1106 (D. Or. 2015) (citing 46 Fed. Reg. 54939-02; 45 Fed. Reg. 4226501). Oregon's SIP is administered by DEQ, and Oregon's SIP provisions are codified in Oregon
statutes and administrative rules. See OAR § 340-200-0040. The Oregon SIP states that "[n]o
person may construct, install, establish, develop or operate any air contaminant source . . .
without first obtaining an [ACD permit] from DEQ." OAR§ 340-216-0020. Air contaminant is
broadly defined and includes carbon, acid, a regulated pollutant, or any such combination. OAR
§ 340-200-0020(8). A source is defined as a facility emitting, or capable of emitting, air
contaminant into the atmosphere. OAR§ 340-200-0020(166).
Here, Defendant is correct that Oregon has vested LUBA with exclusive jurisdiction to
review and interpret any land use decision. See Or. Rev. Stat. § 197.825(1) (stating that LUBA
"shall have exclusive jurisdiction to review any land use decision or limited land use decision of
a local government"). However, "a SIP, once approved by EPA, has 'the force and effect of
federal law."' Safe Air For Everyone v. US. E.P.A., 488 F.3d 1088, 1097 (9th Cir. 2007)
(quoting Trustees of Alaska v. Fink, 17 F.3d 1209, 1210 n. 3 (9th Cir. 1994)). Thus, a SIP
becomes federal, not state, law once approved by the EPA. Id. "Consequently, [a] state's
interpretation of the regulations incorporated into [a] SIP, even if binding as a matter of state
law, is not directly dispositive of the meaning of the SIP." Id.
Hence, the CAA vests the Court with jurisdiction to determine whether or not Defendant
has violated Oregon's SIP. Oregon's SIP requires an individual who constructs an air

Page 14-0RDER

contaminant source to be in compliance with a DEQ-issued ACD permit; thus, it is perfectly
within this Court's jurisdictional purview to assess whether or not Defendant was in violation of
its ACD permit and, by extension, Oregon's SIP. And, in assessing whether or not Defendant
was in violation of its ACD permit, the Court must evaluate whether or not Defendant violated
local land use laws, as the ACD permit requires Defendant to be in compliance with all local
land use regulations. In doing so, however, the Court does not infringe "on the existing authority
of counties and cities to plan or control land use"; rather, the Court specifically defers to local
land use law and asks whether or not Defendant violated it. This is precisely what 42 U.S.C. §
7431 's language contemplates. Consequently, the Court finds that it has jurisdiction to assess
Defendant's compliance with its ACD permit. Accordingly, the Court addresses the merits of the
parties' claims below, starting with the batching operation and concluding with Defendant's
associated activities.

II.

Batching Operation
As will be discussed, even assummg Defendant did violate the CAA by allegedly

operating its batch plant in violation of its ACD permit and without any of the requisite zoning
permits, Plaintiff's claims for declaratory relief, injunctive relief, and civil penalties are moot
because the batch plant has been relocated and there is no reasonable expectation that Defendant
will resume batching operations on the property, thus necessitating summary judgment on this
issue in Defendant's favor.

Ill
I II
I II

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A. Mootness 4
A federal court lacks jurisdiction to decide a moot claim. Church ofScientology v. United

States, 506 U.S. 9, 12 (1992). "A claim is moot if it has lost its character as a present, live
controversy." Am. Rivers v. Nat'/ Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997)
(internal citation omitted). However, courts recognize a "voluntary cessation" exception to the
mootness doctrine. Rosemere Neighborhood Ass 'n v. US. E.P.A., 581 F.3d 1169, 1173 (9th Cir.
2009). "Under this doctrine, the mere cessation of illegal activity in response to pending
litigation does not moot a case, unless the party alleging mootness can show that the 'allegedly
wrongful behavior could not be reasonably expected to recur."' Id. (quoting Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). By contrast, when the
defendant's cessation is not voluntary, but "instead the result of [the plaintiffs] successful
administrative appeal," the action is moot, as there is no reasonable expectation of recurrence.

Or. Nat. Res. Council, Inc. v. Grossarth, 979 F.2d 1377, 1379 (9th Cir. 1992).
1. Declaratory Relief
Article Ill's limitations "are not relaxed in the declaratory judgment context." Gator.com

v. L.L. Bean, Inc., 398 F.3d 1125, 1129 (9th Cir. 2005). "Indeed, the case-or-controversy
requirement is incorporated into the language of the very statute that authorizes federal courts to
issue declaratory relief." Id. (citing 28 U.S.C. § 2201). In a case where a plaintiff seeks
declaratory relief, the test is "whether the facts alleged, under all the circumstances, show that
there is a substantial controversy, between parties having adverse legal interests, of sufficient
immediacy and reality to warrant the issuance of declaratory judgment." Biodiversity Legal
4

Although neither party raises the issue, it should be noted that Plaintiff has standing to bring this suit.
"Standing is determined as of the commencement of litigation." Biodiversity Legal Found v. Badgley, 309 F.3d
1166, 1171 (9th Cir. 2002). At the time Plaintiff filed its case, Defendant's alleged violations were ongoing. Thus,
Plaintiff has standing to bring this suit because, at the time Plaintiff brought suit, Plaintiff could have abated
Defendant's alleged violations. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 188
(2000).

Page 16-0RDER

Found. v. Badgley, 309 F.3d 1166 1174-75 (9th Cir. 2002) (quoting Md. Cas. Co. v. Pac. Coal &
Oil Co., 312 U.S. 270, 273 (1941) (internal quotations omitted). In other words, the question is

"whether changes in the circumstances that prevailed at the beginning of litigation have
forestalled any occasion of meaningful relief." West v. Sec'y of the Dep't ofTransp., 206 F.3d
920, 925 n. 4 (9th. Cir. 2000) (quoting 13A Charles Alan Writ et al., Federal Practice and
Procedure§ 3533.3, at 268 (1984) (internal quotations omitted).

The Court finds that Plaintiffs request for declaratory relief is moot because Defendant
has ceased operating its asphalt batch plant on the property and may not lawfully resume its
operation. Indeed, on September 24, 2015, a County hearings officer denied Defendant's
application to operate its asphalt batch plant as an alteration to a nonconforming use; this
decision was upheld by LUBA on January 11, 2016. Defendant has since moved its batch plant,
and "[t]here is no evidence the Asphalt Plant operated after January 11, 2016." Def.'s Mot. for
Summ. J. Ex. 26, at 14. This is not a case where Defendant voluntarily ceased operations. See
Laidlaw, 528 U.S. at 189 (holding that the defendant's voluntary decision to shut down its

facility does not render a case moot unless it is absolutely clear the defendant's violations could
not be expected to recur). Instead, Defendant's cessation was the result of Plaintiffs successful
administrative appeal, which led to a final order from LUBA 5 affirming the County hearings
officer's decision that expressly forbids Defendant from engaging in its batching operation on
the property. Accordingly, the controversy at issue-whether Defendant can operate its batch
plant on the property-has been decided, and Defendant is not "free to return to [its] old ways."

5

A party to a LUBA proceeding has the right to judicial review of the agency's final order, but, in order to
retain the right to judicial review, the appellant must file its petition within twenty-one days of"the date the board
delivered or mailed the order upon which the petition is based." Or. Rev. Stat.§ 197.850. LUBA issued its order on
January 11, 2016; however, Defendant has not filed a petition for review. Accordingly, LUBA's decision is final,
and neither party appears to dispute this.

Page 17 - ORDER

Id. Hence, the changes in circumstances that existed at the inception of litigation "have

forestalled any occasion of meaningful relief." West, 206 F .3d at 925 n. 4.
In an effort to create a genuine dispute of fact to survive summary judgment, however,
Plaintiff states that it "does dispute whether Defendant's operations continued after [January 11,
2016]." Pl.'s Br. in Supp. oflts Cross-Mot. for Summ. J., at 46 (emphasis in original). In support
of this argument, Plaintiff offers a declaration from Mary Hamilton, a resident of the Mountain
View Estates retirement community. The declaration states Ms. Hamilton heard "equipment
noise" and that she "noticed trucks and equipment going back and forth on the property with load
after load of material creating a large new stockpile near the asphalt plant." Second Hamilton
Deel.

iii! 4,

5. Confusingly, however, the declaration acknowledges Defendant has since moved

the asphalt batch plant to a separate location and never states the plant operated after January 11,
2016. Second Hamilton Deel. ii 7.
"Bald assertions that genuine issues of material fact exist are insufficient," and a mere
scintilla of evidence in support of a party's position is also inadequate. Galen v. City of Los

Angeles, 477 F.3d 652, 658 (9th Cir. 2007) (internal citations omitted). Here, Plaintiffs
conclusory assertion that it disputes whether the batch plant operated after January 11 is clearly
insufficient to create a genuine issue of fact; and, at best, the declaration Plaintiff offers in
support of its position constitutes a mere scintilla of evidence. There is nothing in the declaration
that would create even a colorable claim that the batch plant continued to operate after January
11, 2016. To the contrary, the declaration acknowledges the batch plant has moved. Thus, when
viewed against the hearings officer's finding that there is no evidence suggesting batching
operation after January 11, 2016, Plaintiffs evidence falls well short of that required to create a

Page 18 - ORDER

genuine issue of material fact. Consequently, the Court finds Defendant did not operate its batch
plant following LUBA's order on January 11, 2016.
Finally, Plaintiff argues that Defendant did not move its batching operation in response to
LUBA's order but rather "voluntarily" moved its batching operation after this Court entered its
preliminary injunction on January 21, 2016. Pl.' s Reply in Supp. of Its Cross-Mot. for Partial
Sumrn. J., at 16. Plaintiff thus charges that as soon as this Court lifts the preliminary injunction,
nothing prevents Defendant from moving its batch plant back to the property. In support of this
argument, Plaintiff points to the fact that "the factual history of this case illustrates that
Defendant has never before been deterred from violating local land use and zoning laws or the
Clean Air Act by the threat of fines or enforcement" and that, in any case, Defendant did not
even move its batching operating "until after this Court issued the preliminary injunction." Pl.'s
Reply in Supp. oflts Cross-:Mot. for Partial Sumrn. J., at 17
First, Plaintiffs argument that Defendant "voluntarily" halted and moved its batching
operation because of this Court's preliminary injunction is in direct contravention of the facts in
the record. As discussed, the evidence in the record convincingly supports the finding that
Defendant ceased operating its batch plant on the property on January 11, 2016, as a result of
LUBA's decision to uphold the County hearings officer's determination that denied Defendant's
application for a nonconforming use alteration. Ten days later, on January 21, 2016, the parties
stipulated to a preliminary injunction, which the Court signed. Accordingly, to argue that
Defendant voluntarily ceased and moved operations is to ignore the fact that Defendant had
already ceased batching operations ten days before any preliminary injunction order was issued
and that the exclusive reason for Defendant's cessation was Plaintiffs successful administrative

Page 19-0RDER

appeal, which led to a final order from LUBA affirming the County hearings officer's order that
expressly forbidding Defendant from operating its batch plant on the property.
As for Plaintiff's argument that Defendant has never before been deterred from violating
the law by threat of fines or enforcement and will not be in the future, the Court disagrees. The
threat of fines or enforcement that Plaintiff speaks of occurred while Defendant was in the
process of obtaining verification that its asphalt batch plant was a lawfully established
nonconforming use. In other words, the legality of Defendant's batching operation remained
outstanding at the time these fines were imposed. By way of example, following the September
26, 2013, hearings officer's order finding unauthorized expansions on the property, the County
cited Defendant for violating floodplain and building permit ordinances. Thereafter, the County
and Defendant entered into a stipulated agreement that allowed Defendant to continue to engage
in nonconforming uses while Defendant "procee[ed] through the County's land use process."
Def.'s Mot for Summ. J. Ex. 11, at 2. Over the next two years, Defendant continued to "proceed
through the County's land use process," Def.'s Mot for Summ. J. Ex. 11, at 2, and each
subsequent code violation issued by the County occurred while Defendant continued to do so.
It was not until January 11, 2016, that LUBA conclusively affirmed the County hearings

officer's decision that expressly forbid Defendant from engaging in its batching operation on the
property. At this point, and for the first time, Defendant no longer had a viable avenue for
obtaining permission to operate his asphalt batch plant on the property. Accordingly, Defendant
immediately ceased operations and moved its batching operation to a location where it could
operate with County approval. Thus, far from lacking a deterrent effect, the record unequivocally
establishes that LUBA's final, binding order permanently halted Defendant's unlawful batching
operation and adequately persuaded Defendant to move the operation to a new, lawful location.

Page 20 - ORDER

Hence, Plaintiffs argument that Defendant has never before been deterred from violating the law
by threat of fines or enforcement and will not be in the future simply fails to comport with the
facts. Consequently, the controversy at issue has been conclusively decided by LUBA;
Defendant is not "free to return to [its] old ways," thus mooting the need for declaratory relief.

2. Injunctive Relief
Plaintiffs request for injunctive relief is moot. As stated, Defendant ceased operating its
batch plant on the property nine months ago. Defendant's discontinuance was the result of
Plaintiffs successful administrative appeal, and for the reasons articulated, the Court finds
Defendant is adequately deterred from returning its batch plant to the property. Consequently,
the controversy at issue has been decided, negating any need for injunctive relief.
Arguing against mootness, however, Plaintiff cites to a recently decided Ninth Circuit
case, Nat. Res. Def Council v. Cty. of Los Angeles et al., No. 15-55562, 2016 WL 6407422 (9th
Cir. Oct. 31, 2016). In that case, the plaintiff appealed the district court's dismissal of its claims
for injunctive relief as moot. Id. at *1. The plaintiffs had filed suit alleging the defendants were
discharging polluted storm water, a violation of their Pollutant Discharge Elimination System
("NPDES") permit. Id. The Ninth Circuit had earlier determined that the defendants had violated
their NPDES permit as a matter of law; thus, the court remanded the case to the district court for
a remedies determination. Id. In 2012, while litigation remained ongoing, the defendants
successfully obtained a new NPDES permit; both permits had "substantially the same baseline
receiving water limitations." Id. The 2012 permit, however, was more complicated, creating a
"safe harbor program," which allowed the defendants to "initiate, develop, revise, and implement
a voluntary watershed management program or enhanced watershed management program." Id.
at

*1-2.

By initiating either of the two programs, the defendants were deemed to be in

Page 21 - ORDER

compliance with baseline rece1vmg water limitations in their permit, and if defendants
successfully completed an enhanced watershed management program, the defendants would be
exempt from all water limitations requirements and other restrictions in their permit. Id at *2.
Because they had initiated seven water shed management programs and twenty-three
enhanced watershed management programs, the defendants argued they were in compliance with
their permit, mooting plaintiffs request for injunctive relief. Id The district court agreed with
the defendants, but the Ninth Circuit reversed. Id at *2, *6. First, as the appellate court noted,
and the defendants themselves conceded, the 2012 safe harbor program was voluntary. Id at *2.
Thus, the court stated, the defendants were obligated to demonstrate their allegedly wrongful
behavior was not reasonably expected to recur, a requirement the defendants could not meet. Id
at *4. Indeed, there was no evidence in the record, the court concluded, "that the County
Defendants would not violate the receiving water limitations in the future." Id at *5. To the
contrary, there was the potential for the safe harbor program to be deemed invalid, thus raising
questions about the defendants' ability to remain in compliance with their permit. Id
Furthermore, even if the safe harbor program was ultimately upheld, the defendants still
had to implement their proposed watershed programs, and the plaintiff provided evidence
tending to show defendants' successful implementation was unlikely. Id at *6. Accordingly, the
Ninth Circuit determined the defendants had not shown that their allegedly wrongful behavior
was not reasonably expected to recur, and injunctive relief was warranted. Id
The facts here present a markedly different scenario. First, unlike the defendants in
Natural Resources, who conceded their decision to engage in the safe harbor program was

entirely voluntary, Defendant's decision to cease operating his batch plant on the property at
issue was wholly involuntary; in fact, despite Defendant's best efforts to obtain a nonconforming

Page 22 - ORDER

use alteration and continue operating its batch plant on the property, both the County and LUBA
denied Defendant's application for a nonconforming use alteration, thereby precluding
Defendant from conducting its asphalt batching operation on the property. Accordingly, unlike in

Natural Resources, Defendant's theory of mootness is not "based on ... a 'voluntary cessation'
of an illegal activity," id. at *5, but instead, is based on the fact that Plaintiffs successful
administrative appeal led to a final order from LUBA expressly forbidding Defendant from
engaging in its batching operation on the property, conclusively resolving the controversy at
issue.
Indeed, Defendant has no ability to challenge LUBA's order. Under Oregon law, a party
to a LUBA proceeding has the right to judicial review of the agency's final order; however, the
appellant must file its petition within twenty-one days of "the date the board delivered or mailed
the order upon which the petition is based." Or. Rev. Stat.§ 197.850. LUBA issued its order on
January 11, 2016. Defendant has not filed a petition for review. Accordingly, LUBA's decision
to deny an asphalt batch plant on the property is final, and a permanent injunction forbidding
Defendant's use of the batch plant on the property would be entirely superfluous, as the issue has
simply lost its present, live controversy. See Nw. Envtl. Def Ctr. v. Gordon, 849 F.2d 1241, 1244
(9th Cir. 1988) ("We have described moot cases as those which have lost their character as
present, live controversies"). Consequently, the Court finds Plaintiffs request for injunctive
relief forbidding Defendant from conducting its asphalt batching operation on the property to be
moot.

3. Civil Penalties
Plaintiff seeks civil penalties of up to $3 7,500 for each day Defendant was in violation of
its air quality permit and, by extension, the CAA, arguing "[t]here is no dispute that Defendant

Page 23 - ORDER

has operated [its asphalt batch plant] in violation of its federally enforceable air quality permit at
least 908 separate days over the pays five years." Pl.'s Br. in Supp. of Its Cross-Mot. for Summ.
J., at 3. Plaintiff maintains that civil penalties attach at the time of the Defendant's CAA
violations, not at the time of judgment. Hence, its claim for civil penalties is not rendered moot
regardless of whether Defendant is capable of resuming its past CAA violations.
"The penalties provisions of the CAA and the Clean Water Act ("CWA") are virtually
identical; thus, CWA cases are instructive in analyzing issues arising under the CAA." Pound v.
Airosol Co., Inc., 498 F.3d 1089, 1094 n. 2 (10th Cir. 2007). Civil penalties under the CWA and

CAA exist to deter future violations and serve as an alternative to injunctive relief. San
Francisco BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1159 (9th Cir. 2002) (internal

citations omitted). Civil penalty liabilities attach at the time the violation occurs, not at the time
of the judgment. Id. at 1160. "That a defendant ceases illegal conduct following the
commencement of suit ordinarily does not suffice to moot a case because civil penalties still
serve as a deterrent to future violations." Assoc. of Irritated Residents v. Fred Schakel Dairy, 460
F. Supp. 2d 1185, 1190 (E.D. Cal. 2006) (citing San Francisco BayKeeper, 309 F.3d at 115960)). "[T]he overwhelming majority of circuits that have encountered the issue have held that
even if post-complaint compliance should moot a citizen's claim for injunctive relief, the
citizen's claim for civil penalties is not moot." Anderson v. Farmland Indust., Inc., 70 F. Supp.
2d. 1218, 1235 (D. Kan. 1999) (citing Comfort Lake Ass'n, Inc. v. Dresel Contracting Inc., 138
F.3d 351, 356 (8th Cir. 1998); Atlantic States Legal Found., Inc. v. Stroh Die Casting Co., 116
F.3d 814, 820 (7th Cir. 1997), cert. denied, 522 U.S. 981 (1997); Nat. Res. Def Council, Inc. v.
Texaco Ref & Mktg., Inc., 2 F.3d 493, 503 (3d Cir. 1993); Atlantic States Legal Found., Inc. v.
Pan Am. Tanning Corp., 993 F.2d 1017, 1021 (2d Cir. 1993); Carr v. Alta Verde Indus. Inc., 931

Page 24 - ORDER

F.2d 1055, 1065 n. 9 (5th Cir. 1991); Atlantic States Legal Found., Inc. v. Tyson Foods Inc., 897
F.2d 1128, 1135 (11th Cir. 1990); Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp., 807 F.2d
1089, 1094 (1st Cir. 1986)). Indeed, the Ninth Circuit has held that "post-commencement
compliance may moot claims for injunctive relief, but district courts can still impose civil
penalties for violations that have taken place." San Francisco BayKeeper, 309 F.3d at 1160.
Events following the commencement of a suit will moot a claim for civil penalties only when it
is "absolutely clear" the allegedly wrongful conduct could not be reasonably expected to recur.
Laidlaw, 528 U.S. at 190 (citing United States v. Concentrated Phosphate Exp. Ass 'n, 393 U.S.

199, 203 (1968)).
In WildEarth, the Tenth Circuit addressed the "rare exception" where a defendant's
subsequent compliance with the law moots a plaintiffs claim for civil penalties. WildEarth
Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174 (10th Cir. 2012). In that case, the plaintiffs

brought suit against the defendant, a public utility company, for alleged violations of the CAA.
Id. at 1178. The plaintiffs claimed the defendant's construction of a coal-fired power plant

violated the CAA because the defendant failed to procure the necessary construction permit. Id.
Although the defendant had initially complied with all federal and state laws when construction
began, the federal regulatory landscape changed three years into construction, and the defendant
fell out of compliance with the CAA. Id. The defendant, however, worked with the necessary
agencies to come back into compliance, and while the litigation was pending, achieved
compliance with the new regulatory scheme. Id.
Because it had achieved compliance with the CAA while the lawsuit was ongoing, the
defendant argued the case was moot and that civil penalties were therefore unwarranted. Id. at
1186. The court explained that "in most citizen suits, a plaintiffs claim for civil penalties is not

Page 25 - ORDER

rendered moot by the defendant's compliance with the law because the plaintiff retains a
concrete interest in deterring the defendant from future violations." Id. This case, the court
explained, was different, because "Laidlaw's 'absolutely clear' standard [was] met." Id. First, the
court stated, the defendant's original permit was valid at the time it began construction and only
came into noncompliance as a result of an unforeseen D.C. Circuit decision that struck down the
EPA's then-present regulatory scheme. Id. Accordingly, nothing indicated the defendant had a
"history or pattern" of violations that warranted a deterrent. Id. Second, the defendant took all
reasonable steps and made all efforts to comply with the CAA and worked with state and federal
agencies to come into compliance once new rules went into effect. Id. at 1186-87. "These
compliance efforts," the court stated, "weigh[ed] significantly against finding that the violation
here ... could reasonably be expected to recur." Id. at 1187.
While the court acknowledged the defendant could have done more to ensure
compliance, like ceasing construction once it became clear it had fallen out of compliance, the
defendant's decision to continue construction, something the government instructed the
defendant to do, "does not suggest a likelihood of future unlawful conduct needing to be
deterred." Id. Consequently, the court held that the plaintiff's request for civil penalties would
have no deterrent effect and would only serve the public's "general interest" in CAA
compliance. Id. As such, the court dismissed the plaintiff's claim for civil penalties as moot. Id.
at 1187-88.
The issue here also presents the "rare exception" where Laidlaw's "absolutely clear"
standard is met. Much like the defendant in WildEarth, Defendant argues Plaintiff's claim for
civil penalties is moot because Defendant moved its batching operation, ceasing its alleged ACD
permit violation. Defendant's argument is compelling. While it is true that, unlike the defendant

Page 26 - ORDER

in WildEarth, whose permit was unquestionably valid at the time construction began, Defendant
initially constructed its asphalt batch plant without County approval, the evidence nonetheless
shows that Defendant honestly believed its operation was legal, a belief that was reinforced by
the requisite state agencies. As late as 2012, DEQ stated that "as the County views it currently,
the facility is allowed to operate and be placed at its current site." Def.'s Mot. for Sumrn. J. Ex.
7. And, like the defendant in WildEarth, Defendant also made reasonable efforts to obtain the
necessary approval from the County. As one hearings officer stated, "[Defendant] appear[ed] to
be taking necessary and appropriate measures to resolve these matters by pursuing applications
for nonconforming use." Def.'s Mot. for Summ. J. Ex. 13, at 3. Moreover, once LUBA issued its
decision conclusively denying Defendant's application for approval of a nonconforming use,
Defendant ceased its batching operation and has since moved the batch plant in an effort to
comply with the County's and LUBA's holding. As the court stated in WildEarth, such
compliance efforts weigh against finding that the violation at issue here could reasonably be
expected to recur.
Third, the Court acknowledges Defendant could certainly have done more, including
ceasing its batching operation while it sought County approval. Nevertheless, the Court is
cognizant of the costs this would have imposed on Defendant, and, while significant costs alone
do not justify noncompliance, in light of the fact that the County, on separate occasions,
affirmatively allowed Defendant to continue its operation during the land use appeals process,
the Court does not believe Defendant's continued operation during this process suggests a
likelihood of future unlawful conduct. This belief is reinforced by the fact that Defendant moved
its batching operation in response to LUBA's order, suggesting a commitment to compliance
rather than a likelihood of falling out of compliance.

Page 27 - ORDER

As the Ninth Circuit stated in San Francisco BayKeeper, "[c]ompletely dismantling a
polluting facility might eliminate the need for the deterrent effect of civil penalties." 309 F.3d at
1160. Id. Here, Defendant has removed its batching operation from the property. While the entire
facility has not been dismantled, the issue here is whether there is a likelihood Defendant will
resume its batching operation on the property. Because the batch plant has been removed, the
Court believes the need for the deterrent effect of civil penalties has been eliminated. In fact, it
would be counterintuitive for Defendant to reinstate batching operations at the disputed facility,
given the fact that it has already begun operations at a separate facility and reinstating the
operation would result in hefty fines from the County. Consequently, the Court finds Defendant
has demonstrated that its conduct is not reasonably likely to recur.
a. Summary
For the above-mentioned reasons, Plaintiffs claim for declaratory relief, injunctive relief,
and civil penalties relating to Defendant's allegedly unlawful batching operation is moot, and
summary judgment on this issue must therefore be granted in Defendant's favor.

III.

Defendant's Associated Activities

Plaintiff states it also "intends to demonstrate that Defendant is [] liable for conducting
'associated activities' in violation of its air quality permit" and argues the Court should issue
declaratory and injunctive relief and impose civil penalties on Defendant for these violations of
the CAA. Pl.'s Br. in Supp. of Its Mot. for Summ. J., at 2 n. 2. Defendant moves for summary
judgment on this issue, arguing the evidence demonstrates Defendant "had approval from the
County and LUBA" to operate associated activities at all relevant times. Def.'s Br. in Supp. oflts
Mot. for Summ. J ., at 19. In addition, Defendant argues its associated activities do not constitute
an air contaminant source and therefore do not require an ACD permit. Because no ACD permit

Page 28 - ORDER

is required to conduct its associated activities, Defendant maintains that it cannot, as a matter of
law, be in violation of the CAA, as Plaintiffs only argument is that Defendant "is in violation of
the CAA solely because it does not have County approvals, which represents a technical
violation of [D]efendant's [ACD] Permit requiring such approvals." Def.'s Br. in Supp. of Its
Mot. for Summ. J., at 1-2. Plaintiff counters Defendant's argument, asserting that Defendant's
associated activities fall under the permit's broad language requiring a permittee to be in
compliance with land use or zoning laws for all "activities[] and insignificant activities." Compl.
Ex. B, at 2. And because LUBA determined that Defendant was improperly conducting
"accessory uses" on the property, Defendant is in violation of both its ACD permit and, by
extension, the CAA. Pl. 's Partial Cross-Mot. for Summ. J. Ex. 7, at 10.
Neither party disputes Defendant continues to engage in associated activities on the
property at issue. These activities include stockpiling and hauling asphalt that will subsequently
be run through Defendant's rock crusher and "used as road base," though, apparently, no actual
rock crushing will be conducted on the property. Def.'s Resp. to Pl.'s Interrog. Nos. 13 & 15. On
August 29, 2016, LUBA determined Defendant was improperly conducting "accessory uses" on
the property, as "the LDO does not allow processing aggregate material in the absence of
aggregate mining on the site, or processing of material that is not 'naturally occurring material."'
Pl.'s Partial Cross-Mot. for Summ. J. Ex. 7, at 10. Accordingly, at least some of Defendant's
associated activities appear to be in violation of local land use laws. Consequently, if these
activities do fall under the ACD permit, Defendant would be in violation of its permit for
operating in violation of local land use laws.

Page 29 - ORDER

Based on the plain language of the ACD permit, the Court finds that a dispute exists as to
whether or not Defendant's associated activities violate its permit. The ACD permit's language
states:
This permit is not valid * * * at any location where the operation of the
permittee's processes, activities, and insignificant activities would be in
violation of any local land use or zoning laws. * * * It is the permittee's
sole responsibility to obtain local land use approvals, as, or where,
applicable before operating this facility at any location.

Compl. Ex. B, at 2. Plaintiff argues Defendant's stockpiling, hauling, and other actions fall
under the "activities or insignificant activities" clause in the permit and because Defendant's
stockpiling, hauling, and other actions appear to be "in violation of local land use or zoning
laws," Defendant is clearly violating its ACD permit. Moreover, because Defendant is violating
its permit, it is violating the CAA. Defendant, by contrast, maintains that such "activities are
independent of the production of asphalt and are not dependent upon the production of asphalt"
and therefore do not fall under the permit's coverage.
While Defendant states the associated activities are independent of asphalt production,
nothing outside of this statement indicates the batch plant and the associated activities are not, at
the very least, insignificantly related activities; indeed, prior to moving its batch plant, the raw
material stored in stock piles would be "refined through the crusher [and] mixed with asphalt in
the batch plant." Def. 's Mot. for Summ. J. Ex. 2, at 5. Defendant continues to stockpile raw
material on the disputed property, and aside from its conclusory statement that its associated
activities "are independent of the production of asphalt," Defendant fails to explain how it is that
the raw material it currently stockpiles on the property is no longer "mixed with asphalt in the
batch plant," an integral part of its batching operation. At the summary judgment stage,
Defendant has the burden of showing, with evidence, that no material issue exists for trial. Its

Page 30 - ORDER

conclusory statement is not enough, especially in light of the surrounding evidence. Furthermore,
the permit expressly states that it "is issued ... for the following source category: Asphaltic
concrete paving plan, stationary or portable, and associated material handling activities such as
storage piles, conveyors, and vehicle traffic." Compl. Ex. B, at 1 (emphasis added). With reports
of stockpiling and of "trucks and equipment going back and forth on the property," Second
Hamilton Deel.

'ii 4,

and the permit's broad language, a question certainly arises as to whether

Defendant's associated activities are truly independent or whether they are related to its batching
operation and fall under the permit's restrictions, thereby rendering Defendant's failure to obtain
local land use approval prior to engaging in them "a technical violation of [D]efendant's [ACD]
Permit requiring such approvals." Def.'s Br. in Supp. oflts Mot. for Summ. J., at 1-2.
Moreover, if Defendant's associated activities do in fact violate its ACD permit, then
Defendant could be in violation of the CAA. Indeed, under the CAA, a defendant's violation of a
state or local permit's terms or conditions issued pursuant to a SIP constitutes a violation of an
emission standard or limitation, thus allowing private citizens to initiate judicial proceedings
against the defendant "who is alleged to have violated ... or to be in violation of ... [the]
emission standard or limitation." 42 U.S.C. §§ 7604(a)(l), (f)(4). The ACD permit is issued
pursuant to Oregon's SIP. See OAR § 340-216-0020 ("No person may construct, install,
establish, develop or operate any air contaminant source ... without first obtaining an [ACD
permit] from DEQ"). Thus, if Defendant is in violation of its permit, a genuine dispute of
material fact exists as to Plaintiffs claim that Defendant's associated activities violate the CAA,
and the Court must therefore deny Defendant's motion for summary judgment on this issue.

II I
I II

Page 31 - ORDER

CONCLUSION
For the reasons discussed, Plaintiffs claim for declaratory relief, injunctive relief,
and civil penalties with regards to Defendant's allegedly wrongful operation of its asphalt batch
plant are moot, thus necessitating summary judgment in Defendant's favor. However, a genuine
issue exists with regards to Plaintiff's claim that Defendant's ongoing associated activities
violate the CAA, and the Court must therefore deny Defendant's motion for summary judgment
on this issue. Accordingly, Defendant's motion for summary judgment (#82) is granted in part
and denied in part. Plaintiff's cross-motion for partial summary judgment (#89) is denied for the
same reasons Defendant's summary judgment motion is granted in part.
ORDER
For the foregoing reasons, Defendant's motion for summary judgment (#82) is
GRANTED in part and DENIED in part. Plaintiffs cross-motion for summary judgment (#89) is
DENIED.
It is so ORDERED and DATED this _ ____,,.,.,,.'--/

United States Magistrate Judge

Page 32 - ORDER