Case 1:20-cv-01064-NONE-SKO Document 1 Filed 07/31/20 Page 1 of 22
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`MATTHEW C. MACLEAR (SBN 209228)
`mcm@atalawgroup.com
`ERICA A. MAHARG (SBN 279396)
`eam@atalawgroup.com
`AQUA TERRA AERIS (ATA) LAW GROUP
`4030 Martin Luther King Way
`Oakland, CA 94609
`Telephone: (510) 473-8793
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`
`Attorneys for Plaintiffs
`ASSOCIATION OF IRRITATED RESIDENTS
`SAN JOAQUIN RAPTOR/WILDLIFE RESCUE CENTER
`CENTRAL VALLEY SAFE ENVIRONMENT NETWORK
`PROTECT OUR WATER
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
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`Civil Case Requirement:
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF AND CIVIL
`PENALTIES UNDER THE CLEAN AIR
`ACT (42 U.S.C. § 7604)
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`ASSOCIATION OF IRRITATED RESIDENTS,
`a non-profit association, SAN JOAQUIN
`RAPTOR/WILDLIFE RESCUE CENTER a non-
`profit corporation, CENTRAL VALLEY SAFE
`ENVIRONMENT NETWORK, a non-profit
`association, and PROTECT OUR WATER, a
`non-profit association,
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` Plaintiffs,
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`vs.
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`CERTAINTEED LLC, a Delaware Limited
`Liability Company,
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` Defendant.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES
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`JURISDICTION AND VENUE
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` Plaintiffs Association of Irritated Residents (“AIR”), San Joaquin Raptor/Wildlife Rescue
`Center (“SWR/WRC”), Central Valley Safe Environment Network (“CVSEN”) and Protect Our
`Water (“POW”) (collectively, “Plaintiffs”) bring this suit under the citizen suit enforcement
`provision, 42 U.S.C. § 7604, of the federal Clean Air Act (“CAA”) to redress and prevent violations
`of the CAA by CertainTeed LLC (“Defendant”) at its facility located at 17775 Ave. 23 1/2,
`Chowchilla, California, 93610 (“Facility”). Among other things, the suit seeks declaratory relief,
`injunctive relief, and the assessment of civil penalties for violations of permits and requirements under
`Title V (i.e., the federal operating permits program) of the CAA, 42 U.S.C. §§ 7661-7661f, and the
`State Implementation Plan (“SIP”) adopted by the State of California and approved by the
`Environmental Protection Agency (“EPA”) pursuant to section 110 of the CAA, 42 U.S.C. § 7410,
`codified at 40 C.F.R. § 52.220. In this lawsuit, Plaintiffs allege that Defendant has repeatedly violated
`and continues to violate requirements in its Title V permit to operate for the Chowchilla Plant.
` This court has subject matter jurisdiction under the CAA, 42 U.S.C. § 7604 (citizen suit
`provision), and the federal jurisdiction statute, 28 U.S.C. § 1331 (federal question jurisdiction)
`because the sources of the violations are located within this judicial district. The relief requested is
`authorized pursuant to 42 U.S.C. § 7604 and 28 U.S.C. §§ 2201-2202.
` The violations complained of occurred and continue to occur in the Eastern District of
`California. Venue is therefore proper in the Eastern District of California, pursuant to the Clean Air
`Act, 42 US.C. § 7604(c)(1), and the federal venue statute, 28 U.S.C. § 1391(b)-(c).
`Consistent with the CAA’s citizen suit provision, 42 U.S.C. § 7604(b)(1)(A), on May 18,
`2020, Plaintiffs notified in writing the Administrator of the EPA (the “Administrator”), the Regional
`Administrator of Region 9 EPA, the Governor of California, the California Air Resources Board
`(“CARB”), Defendant, and the plant manager of the Chowchilla Plant of the violations alleged in this
`complaint and of Plaintiffs’ intent to sue. More than sixty (60) days have passed since this notice
`(“Notice of Intent to Sue”) was served via certified U.S. mail. Defendant has violated and remains in
`violation of CAA, the California SIP, and its Title V permit. Plaintiffs are informed and believe, and
`thereon allege, that neither EPA nor CARB has commenced or is diligently prosecuting a court action
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES
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`to redress the ongoing violations alleged in the Notice of Intent to Sue and in this complaint. The
`Notice of Intent to Sue and its exhibits are attached hereto as Exhibit A and fully incorporated herein
`by reference.
` A copy of this complaint will be sent to the Attorney General of the United States and the
`Administrator, pursuant to 42 U.S.C. § 7604(c)(3).
`PARTIES
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` Plaintiff AIR is a California non-profit corporation incorporated in 2012. AIR’s mission is to
`combat the pollution of the air and waters of the San Joaquin Valley of the State of California by
`raising awareness of sources of pollution, advocating for regulatory oversight, and litigating against
`polluters in violation of state and federal environmental laws.
` Plaintiff SJR/WRC is a California non-profit corporation and plaintiffs CVSEN and POW are
`non-profit associations sponsored by SJR/WRC. SJR/WRC, CVSEN and POW’s organizational
`purposes are protecting and preserving wildlife habitats and the environment, including combating
`pollution of the air and waterways in the San Joaquin Valley.
` AIR’s members use the resources in the San Joaquin Valley airshed most immediately
`impacted by Defendant’s violations of CAA. Members reside, visit, work, and recreate near the
`Chowchilla Plant and are exposed to the Chowchilla Plant’s emissions. The health-related, aesthetic,
`recreational, environmental, and economic interests of AIR’s members are and have been injured by
`Defendant’s failure to comply with its CAA permit, which is designed to achieve healthy air quality
`for people and the environment. Interests of AIR’s members that are directly injured by Defendant’s
`violations at the Chowchilla Plant include, but are not limited to: (1) breathing air in the San Joaquin
`Valley free from excessive pollution discharges and without the impact of and concern over negative
`health effects that such emissions cause; (2) enjoying outdoor recreation that is unimpaired by
`pollution from the Chowchilla Plant’s emissions; (3) using and enjoying property and viewing and
`enjoying natural scenery, wildlife, and a sky that is unimpaired by pollution from the Chowchilla
`Plant’s excessive emissions; and (4) protecting the natural ecology of the region from air pollution-
`related impacts.
`Plaintiffs SJR/WRC, CVSEN and POW’s members also use the resources in the San Joaquin
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`Valley airshed most immediately impacted by Defendant’s violations of CAA. Members reside, visit,
`work, and recreate near the Chowchilla Plant and are exposed to the Chowchilla Plant’s emissions.
`Plaintiff SJR/WRC also rescues and cares for injured or ailing raptors and other wildlife affected by
`air and water pollution throughout the San Joaquin Valley. The health-related, aesthetic, recreational,
`environmental, and economic interests of SJR/WRC, CVSEN and POW’s members are and have
`been injured by Defendant’s failure to comply with its CAA permit, which is designed to achieve
`healthy air quality for people and the environment. Interests of SJR/WRC, CVSEN and POW’s
`members that are directly injured by Defendant’s violations at the Chowchilla Plant include, but are
`not limited to: (1) breathing air in the San Joaquin Valley free from excessive pollution discharges
`and without the impact of and concern over negative health effects that such emissions cause; (2)
`enjoying outdoor recreation that is unimpaired by pollution from the Chowchilla Plant’s emissions;
`(3) using and enjoying property and viewing and enjoying natural scenery, wildlife, and a sky that is
`unimpaired by pollution from the Chowchilla Plant’s excessive emissions; and (4) protecting the
`natural ecology, including raptors and other wildlife, of the region from air pollution-related impacts.
` Defendant CertainTeed LLC (“CertainTeed”) is a limited liability company organized under
`the laws of Delaware and registered in California. According to the Title V permit issued by the San
`Joaquin Valley Air Pollution Control District to operate the Chowchilla Plant, CertainTeed
`Corporation is the legal owner and operator of the Chowchilla Plant. Based on information available
`to Plaintiffs, CertainTeed Corporation surrendered its registration with the California Secretary of
`State in 2019 after restructuring into two entities, CertainTeed LLC and DBMP LLC, and CertainTeed
`LLC became the owner/operator of the Chowchilla Plant.
` STATUTORY BACKGROUND
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`A.
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`CLEAN AIR ACT CITIZEN ENFORCEMENT PROVISION
`The CAA is designed “to protect and enhance the quality of the Nation’s air resources so as
`to promote the public health and welfare and the productive capacity of its population.” 42 U.S.C. §
`7401(b)(1).
` Any person may commence a civil enforcement action under the CAA against any party “who
`is alleged to have violated . . . or to be in violation of [] an emission standard or limitation.” Id. at §
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`7604(a). An “emission standard or limitation” is, among other things, any term or condition of a
`permit issued under an approved State Implementation Plan, any standard or limitation under any
`approved State Implementation Plan, or any permit term of a Title V operating permit. Id. at §
`7604(f)(4).
`B.
`STATE IMPLEMENTATION PLANS (SIPS)
`The EPA has established National Ambient Air Quality Standards (“NAAQS”) for a number
`of “criteria pollutants,” such as particulate matter. 42 U.S.C. § 7409; 40 C.F.R. pt. 50. An area that
`meets the NAAQS for a particular criteria pollutant is deemed to be in “attainment” for that pollutant.
`Id. at § 7407(d)(1). An area that does not meet the NAAQS is a “nonattainment” area. Id.
` Pursuant to 42 U.S.C. § 7410, each state must adopt and submit to EPA for approval a State
`Implementation Plan (“SIP”) that provides for the attainment and maintenance of the NAAQS.
`Specifically, SIPs set forth requirements for permitting programs and specific emission standards and
`limitations to assure that geographic areas either remain in attainment or regain attainment status.
`Compliance with permit terms and conditions is a critical component of NAAQS attainment and
`maintenance. Once a state’s SIP is approved by EPA, it is published in the Code of Federal
`Regulations and becomes enforceable federal law. 42 U.S.C. § 7413; 40 C.F.R § 52.23.
` The State of California Implementation Plan for Achieving and Maintaining the National
`Ambient Air Quality Standards (“California SIP”) can be found at 40 C.F.R. § 52.220.
` The California SIP includes the rules and regulations adopted by the various air districts
`statewide.
`C.
`TITLE V OPERATING PERMITS
`Title V of the CAA, 42 U.S.C. §§ 7661 -7661f, establishes an operating permit program for
`“major sources” of air emissions, such as the CertainTeed Chowchilla Plant. The purpose of the Title
`V program is to ensure that all “federally-enforceable” requirements for a source’s compliance with
`CAA are collected in one place—the Title V Federal Operating Permit. Thus, for example, the SIP
`provisions applicable to a source are incorporated into the source’s Title V permit. EPA has stated
`that the Title V program “will enable the source, States, EPA, and the public to understand better the
`requirements to which the source is subject, and whether the source is meeting those requirements.
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`Increased source accountability and better enforcement should result.” 57 Fed. Reg. 32,250, 32,251
`(July 21, 1992).
` California implements the Title V program pursuant to EPA-approved regulations. California
`Health & Safety Code § 40001; 40 C.F.R. § 52.220(c).
` It is unlawful for any person to violate any requirement of a permit issued under Title V or to
`operate a major source except in compliance with a permit issued by a permitting authority under
`Title V. 42 U.S.C. § 7661a(a).
`D.
`THE SAN JOAQUIN VALLEY AIR POLLUTION CONTROL DISTRICT
`Regional air pollution control districts within California are charged with implementing Title
`V permits. California Health & Safety Code §§ 39002, 40001.
` Defendant’s Chowchilla Plant is under the authority of the San Joaquin Valley Air Pollution
`Control District (“Air District”). See California Health & Safety Code § 40600.
` The Air District issues, renews, revises, reopens, revokes, and terminates Title V operating
`permits pursuant to Air District Rule 2520, in accordance with EPA regulations codified at 40 C.F.R.
`§ 70.
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` The Air District has adopted rules and regulations that are approved by EPA, are part of the
`California SIP, and govern permits issued by the Air District, as well as operations at major sources
`of air emissions, such as the Chowchilla Plant.
` The California Legislature has declared: “Residents of the San Joaquin Valley suffer some of
`the worst air quality in the world. This poor air quality poses a significant threat to public health, the
`environment, and the economy of the valley.” California Health and Safety Code § 40610(a).
` According to the Air District website, the San Joaquin Valley is not currently attaining federal
`air quality standards for fine particulate matter (PM2.5) and ozone and is not attaining state air quality
`standards for coarse particulate matter (PM10), PM2.5, and ozone.
` STATEMENT OF FACTS
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` Defendant owns and operates the Chowchilla Plant, a fiberglass manufacturing plant located
`at 17775 Ave. 23 ½. Chowchilla, CA 93610.
` The Chowchilla Plant is located in the San Joaquin Valley and is under the authority and
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`jurisdiction of the Air District.
` In addition to other units, the Chowchilla Plant includes a single glass melting furnace.
` At all times relevant to this civil action, the Chowchilla Plant and its glass melting furnace
`was a “major source” within the meaning of Title V of the CAA and the California SIP.
` On information and belief, Plaintiffs allege that at all times relevant to this action Defendant’s
`Chowchilla Plant was operating under a Title V permit to operate.
` On information and belief, Plaintiffs allege that the Air District issued a Title V Permit for the
`Chowchilla Plant that was set to expire on May 31, 2016 (“2016 Title V Permit”) and that 2016 Title
`V Permit was active on or about July 7, 2011.
` The Air District issued Defendant’s Chowchilla Plant a renewed Title V Permit on or about
`June 22, 2017, which expires on May 31, 2022 (“2022 Title V Permit”). (The 2016 Title V Permit
`and the 2022 Title V Permit are collectively referred to herein as the “Title V Permit.”)
` Defendant’s 96 MMBTU/Hr glass melting furnace (“the Furnace”) was permitted in the 2016
`Title V Permit as Unit No. C-261-2-22 and was subsequently permitted as Unit No. C-261-2-28 in
`the 2022 Title V Permit, with additional 2016 unit permitting numbers assigned in the interim, C-
`261-2-24 and 261-2-27.
` The Title V Permit includes Facility-Wide Requirements, as well as requirements for the
`individually permitted units, including the Furnace. The Facility-Wide Requirements were permitted
`in the 2016 Title V Permit as Facility: C-261-0-3 and was subsequently permitted as Facility: C-261-
`0-4 in the 2022 Title V Permit.
` The Title V Permit states: “The permittee must comply with all conditions of the permit
`including permit revisions originated by the District. All terms and conditions of a permit that are
`required pursuant to the Clean Air Act (CAA), including provisions to limit potential to emit, are
`enforceable by the EPA and Citizens under the CAA. Any permit noncompliance constitutes a
`violation of the CAA and the District Rules and Regulations, and is grounds for enforcement action,
`for permit termination, revocation, reopening and reissuance, or modification; or for denial of a permit
`renewal application. [District Rules 2070, 7.0; 2080; and 2520, 9.8.1 and 9.13.1] Federally
`Enforceable Through Title V Permit.” Title V Permit, Facility C-261-0-3, Requirement 8; Title V
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`Permit, Facility C-261-0-4, Requirement 8.
` Opacity is a measure of the amount of soot and/or particulate matter emitted in a smokestack’s
`gas stream over a specified time period. The measurement is used to ensure compliance with emission
`standards for particulate matter (“PM”). Particulate matter is a mixture of small particles, including
`organic chemicals, metals, and ash, which can cause health and environmental problems.
` The Title V Permit includes emissions limits for opacity. Specifically, the Title V Permit states
`that “No air contaminants shall be discharged into the atmosphere for a period or periods aggregating
`more than 3 minutes in any one hour which is as dark or darker than Ringelmann #1 or equivalent to
`20% opacity and greater, unless specifically exempted by District Rule 4101 (02/17/215).” Title V
`Permit, C-261-0-4, Requirement 25; Title V Permit, C-261-0-3, Requirement 25 (“opacity emission
`standard”). This standard is also incorporated into California’s State Implementation Plan (“SIP”), 40
`C.F.R. § 52.220 et seq., and San Joaquin Valley Air Pollution Control District Rule 4101, Section 5.
` Within the last five years, Defendant has self-reported exceeding the opacity emission
`standard at least 8,721 times and continues to violate such standards. Each of these exceedances
`constitutes a separate and distinct violation of the Title V Permit and the CAA.
` The Title V Permit includes requirements for Defendant to operate and maintain continuous
`pollution control technology to control emissions of air pollutants.
` The permit unit requirement for the Furnace in the Title V Permit requires that “CertainTeed
`shall continuously operate and maintain the caustic soda injection system for the pretreatment of the
`glass furnace gas steam upstream of the dry ESP [electrostatic precipitator].” Title V Permit, Permit
`Unit C-261-2-28, Requirement 30; Title V Permit, Permit Unit C-261-2-27, Requirement 30; see Title
`V Permit, Permit Unit C-261-2-24. The Title V Permit also requires that “Both the caustic soda
`injection system (scrubber) and the dry electrostatic precipitator shall be functioning as air pollution
`abatement devices whenever the glass melting furnace is in operation. Title V Permit, Permit Unit C-
`261-2-28, Requirement 31; Title V Permit, Permit Unit C-261-2-27, Requirement 31; see Title V
`Permit, Permit Unit C-261-2-24.
` Within the last five years, Defendant has self-reported violations of the requirements to
`continuously operate pollution control equipment at least 55 times. Each of these violations
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`constitutes a separate and distinct violation of the Title V Permit and the CAA.
` The Title V Permit includes requirements for Defendant to maintain the hourly average total
`power input into the dry electrostatic precipitator (“DESP”).
` The permit unit requirement mandates that Defendant maintain “[t]he hourly average total
`power input into the DESP . . . at or above 6.8 kW.” Title V Permit, Permit Unit C-261-2-28,
`Requirement 49; Title V Permit, Permit Unit C-261-2-27, Requirement 49; see Title V Permit, Permit
`Unit C-261-2-24.
` Within the last five years, Defendant has self-reported at least 11 violations of this
`requirement. Each of these violations constitutes a separate and distinct violation of the Title V Permit
`and the CAA.
` The Title V Permit includes requirements for Defendant to operate and maintain continuous
`emissions monitoring systems (“CEM” or “CEMS”) to measure stack gas concentrations of nitrogen
`oxides (“NOx”) and stack gas volumetric flow rates, including data acquisition systems (”DAS”).
` The permit unit requirement in the Title V Permit mandates the following five requirements:
`a.
`“The applicant shall maintain and operate CEM to measure stack gas NOx
`concentration [cites] and stack gas volumetric flow rate [cites].” Title V Permit, Permit Unit C-261-
`2-28, Requirement 23; Title V Permit, Permit Unit C-261-2-27, Requirement 23; see Title V Permit,
`Permit Unit C-261-2-24.
`b.
`“The facility shall maintain equipment, facilities, and systems compatible with the
`[Air] District’s CEM data polling software system and shall make CEM data available to the [Air]
`District’s automated polling system on a daily basis.” Title V Permit, Permit Unit C-261-2-28,
`Requirement 25; Title V Permit, Permit Unit C-261-2-27, Requirement 25; see Title V Permit,
`Permit Unit C-261-2-24.
`c.
`“CertainTeed Corporation shall maintain and operate the following continuous
`emissions monitoring systems (CEMS) in the final stack: (1) a CEMS to measure stack gas NOx
`concentrations; (2) a CEMS to measure stack gas volumetric flow rates.” Title V Permit, Permit Unit
`C-261-2-28, Requirement 56; Title V Permit, Permit Unit C-261-2-27, Requirement 56; see Title V
`Permit, Permit Unit C-261-2-24.
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`“The NOx CEMS shall meet EPA monitoring performance specifications [cites].”
`d.
`Title V Permit, Permit Unit C-261-2-28, Requirement 57; Title V Permit, Permit Unit C-261-2-27,
`Requirement 57; see Title V Permit, Permit Unit C-261-2-24.
`e.
`“The volumetric flow rate CEMS shall meet EPA monitoring performance
`specifications [cites].” Title V Permit, Permit Unit C-261-2-28, Requirement 58; Title V Permit,
`Permit Unit C-261-2-27, Requirement 58; see Title V Permit, Permit Unit C-261-2-24.
` Within the last five years, Defendant has self-reported violations of one or more of these
`requirements on at least 23 occasions. Each of these violations constitutes a separate and distinct
`violation of the Title V Permit and the CAA.
` The Title V Permit requires Defendant to “maintain and operate an opacity CEMS [“COMS”]
`in the final stack to continuously measure the opacity of stack emissions.” Title V Permit, Permit Unit
`C-261-2-28, Requirement 24; Title V Permit, Permit Unit C-261-2-27, Requirement 24; see Title V
`Permit, Permit Unit C-261-2-24.
` Within the last five years, Defendant has self-reported violations of this requirement on at
`least 20 occasions. Each of these violations constitutes a separate and distinct violation of the Title V
`Permit and the CAA.
` The Title V Permit includes several provisions that require Defendant to operate and maintain
`continuous parametric monitoring systems (“CPMS”).
` The permit unit requirements include the following three provisions:
`a.
`“The owner or operator shall maintain, operate and quality-assure a Continuous
`Parametric Monitoring System which continuously measures and records the furnace oxygen/fuel
`ratio at least once per hour.” Title V Permit, Permit Unit C-261-2-28, Requirement 40; Title V Permit,
`Permit Unit C-261-2-27, Requirement 40; see Title V Permit, Permit Unit C-261-2-24.
`b.
`“The owner or operator shall maintain, operate and quality-assure a Continuous
`Parametric Monitoring System which continuously measures and records the caustic soda injection
`system’s liquid flow rate and liquid specific gravity.” Title V Permit, Permit Unit C-261-2-28,
`Requirement 44; see Title V Permit, Permit Unit C-261-2-24.
`c.
`“The owner or operator shall maintain, operate and quality-assure a Continuous
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES
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`Parametric Monitoring System which continuously measures and records the secondary current and
`secondary voltage across each field of the DESP at least once per hour.” Title V Permit, Permit Unit
`C-261-2-28, Requirement 48; see Title V Permit, Permit Unit C-261-2-24.
` Within the last five years, Defendant has self-reported violations of these requirements on at
`least 5 occasions. Each of these violations constitutes a separate and distinct violation of the Title V
`Permit and the CAA. Each of these violations constitutes a separate and distinct violation of the Title
`V Permit and the CAA.
` The Title V Permit requires Defendant to report excess emissions each calendar quarter. Title
`V Permit, Permit Unit C-261-2-28, Requirement 29; Title V Permit, Permit Unit C-261-2-27,
`Requirement 29; see Title V Permit, Permit Unit C-261-2-24. Each report should include the dates,
`times, and excess emissions. Each report should also include any instances of CEMS downtime, and
`a summary of the downtime dates, times, duration, and activities that occurred during the reporting
`period. A review of the CEMS Quarterly Reports submitted by Defendant over the last five years
`demonstrates that Defendant has violated and continues to violate these requirements by submitting
`inadequate quarterly reports including failures to report opacity exceedances.
` Particles from NOx emissions can cause respiratory issues including lung tissue damage and
`contributes to smog and acid rain. The Title V Permit contains limits on the emission of NOx to
`protect the public health and environment.
` The Title V Permit requires Defendant to limit NOx emissions. See Title V Permit, Permit
`Unit C-261-2-28, Requirements 33-36 (“NOx emission standard”); Title V Permit, Permit Unit C-
`261-2-27, Requirements 33-36; see Title V Permit, Permit Unit C-261-2-24.
` Defendant has self-reported exceedance of the NOx emission standard during at least four
`quarters over the last five years, which amount to at least 163 violations. Each of these exceedances
`constitutes a separate and distinct violation of the Title V Permit and the CAA.
` Exposure to PM can affect human lung and heart health and can cause environmental damage.
`The Title V Permit contains limits on the emission of PM to protect the public health and environment.
` The Title V Permit requires Defendant to limit emissions of PM. See Title V Permit, Permit
`Unit C-261-2-28, Nos. 33-35, 37 and Title V Permit, Permit Unit C-261-2-27, Nos. 33-35, 37 (“PM
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`emission standard”); see Title V Permit, Permit Unit C-261-2-24.
` Defendant has self-reported exceedance of the PM emission standard on at least five occasions
`over the last five years. Each of these exceedances constitutes a separate and distinct violation of the
`Title V Permit and the CAA.
` This complaint seeks declaratory relief, injunctive relief, the imposition of civil penalties, and
`the award of costs, including attorney and expert witness fees, for Defendant’s violations of its Title
`V Permit and the CAA resulting from its operations at the Chowchilla Plant.
`FIRST CAUSE OF ACTION
`Defendant’s Failure to Meet Opacity Emissions Limits in Violation of its Title V Permit (2016
`Title V Permit, Permit C-261-0-03, Requirement 25; 2022 Title V Permit, Permit C-261-0-04,
`Requirement 25) and the Clean Air Act, 42 U.S.C. §§ 7604(a), 7604(f)
` Plaintiffs re-allege and incorporate the allegations set forth in paragraphs 1-60.
` Over the last five years, Defendant repeatedly exceeded the opacity emission standard at its
`glass melting furnace in excess of 8700 times (see Exhibit A, the Notice of Intent to Sue and its
`Exhibit A, attached hereto).
` Each time that Defendant exceeded the opacity emission limit is a separate and distinct
`violation of the Title V Permit (Title V Permit, C-261-0-4, Requirement 25; Title V Permit, C-261-
`0-3, Requirement 25, as well as the CAA and the California SIP (see 40 C.F.R. § 52.220 et seq., and
`San Joaquin Valley Air Pollution Control District Rule 4101, Section 5, see also 42 U.S.C. §§
`7604(a), 7604(f)).
` On information and belief, Plaintiffs allege that these violations have continued and are
`continuing.
` For each violation, Defendant is subject to civil penalties of up to $37,500 for violations
`occurring before November 2, 2015; up to $47,357 per day for violations occurring after November
`15, 2019. See 40 C.F.R section 19.4, Table 2; Civil Monetary Penalty Inflation Adjustment Rule, 84
`Fed. Reg. 2056 (February 6, 2019).
` An action for injunctive relief is authorized by CAA Section 304(a), 42 U.S.C. § 7604(a).
`Continuing commission of the acts and omissions alleged above would irreparably harm Plaintiffs
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`and their members, and the citizens of the State of California, for which harm they have no plain,
`speedy, or adequate remedy at law.
` An action for declaratory relief is authorized by 28 U.S.C. § 2201(a) because an actual
`controversy exists as to the rights and other legal relations of the Parties.
`WHEREFORE, Plaintiffs pray for judgment against Defendant as set forth hereafter.
`SECOND CAUSE OF ACTION
`Defendant’s Failure to Meet Requirements to Operate and Maintain Pollution Control
`Technology to Control Emissions of Air Pollutants in Violation of its Title V Permit (2022
`Title V Permit, Permit Unit C-261-2-28, Requirement 30; 2022 Title V Permit, Permit Unit C-
`261-2-28, Requirement 31) and the Clean Air Act, 42 U.S.C. §§ 7604(a), 7604(f)
`Plaintiffs re-allege and incorporate the allegations set forth in paragraph 1-67.
`Over the last five years, Defendant violated requirements to operate and maintain pollution
`control technology to control emissions of air pollutants over 50 times (see Exhibit A, the Notice of
`Intent to Sue and its Exhibit B, attached hereto).
` Each time that Defendant failed to operate and maintain pollution control technology is a
`separate and distinct violation of the Title V Permit (Title V Permit, Permit Unit C-261-2-28,
`Requirements 30-31; Title V Permit, Permit Unit C-261-2-27, Requirements 30-31; see Title V
`Permit, Permit Unit C-261-2-24), as well as the CAA and the California SIP (see 42 U.S.C. §§
`7604(a), 7604(f)).
` On information and belief, Plaintiffs allege that these violations are continuing.
` For each violation, Defendant is subject to civil penalties of up to $37,500 for violations
`occurring before November 2, 2015 and up to $47,357 per day for violations occurring after
`November 2, 2015. See 40 C.F.R section 19.4, Table 2; Civil Monetary Penalty Inflation Adjustment
`Rule, 84 Fed. Reg. 2056 (February 6, 2019).
` An action for injunctive relief is authorized by CAA Section 304(a), 42 U.S.C. § 7604(a).
`Continuing commission of the acts and omissions alleged above would irreparably harm Plaintiffs
`and their members, and the citizens of the State of California, for which harm they hav