United States District Court, M.D. Louisiana
WASHINGTON-ST. TAMMANY ELECTRIC COOPERATIVE, INC., ET AL.
LOUISIANA GENERATING, L.L.C.
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiffs' Motion to Compel Discovery of
Defendant's Consent Decree Negotiations with the
Environmental Protection Agency. (R. Doc. 84). The motion is
opposed. (R. Doc. 100).
28, 2017, Washington-St. Tammany Electric Cooperative, Inc.
(“WST”) and Claiborne Electric Cooperative, Inc.
“Plaintiffs” or the “Customer
Cooperatives”), filed this breach of contract action
against Louisiana Generating, L.L.C. (“Defendant”
or “LaGen”). (R. Doc. 1, “Compl.”).
The Customer Cooperatives allege that they are non-profit
electric cooperative corporations who obtain electric power
from LaGen. (Compl. ¶¶ 1-4). The Customer
Cooperatives seek a finding that LaGen breached certain Power
Supply and Service Agreements
(“Contracts”) by charging them for costs associated
with LaGen's remediation of environmental conditions
existing at the Big Cajun II power generating plant before
the execution of the Contracts, as well as a declaration that
LaGen may not assess such costs in the future. (Compl.
¶¶ 4-5). The Customer Cooperatives assert that in
light of certain Environmental Law Clauses in the Contracts,
LaGen “has exclusive responsibility for the costs of
complying with Environmental Laws existing prior to June 24,
2002, and also the costs of remediating environmental
conditions that existed at the Big Cajun II power generating
plant prior to June 24, 2002.” (Compl. ¶¶
Customer Cooperatives assert that LaGen has improperly
assessed them with certain remediation costs incurred
pursuant to a Consent Decree between LaGen and the
Environmental Protection Agency (“EPA”) and
Louisiana Department of Environmental Quality
(“LDEQ”). (Compl. ¶¶ 11-22). The
federal action in which the Consent Decree was entered was
brought by the EPA against LaGen on February 18, 2009
“pursuant to Sections 113(b) and 167 of the Clean Air
Act (‘the Act'), 42 U.S.C. § 7413(b) and 7477,
for injunctive relief and the assessment of civil penalties
for violations of the Prevention of Significant Deterioration
(‘PSD') provisions of the Act, 42 U.S.C.
§§ 7470-92; the federally approved Louisiana PSD
regulations of the Louisiana State Implementation Plan
(‘SIP'); Title V of the Act, 42 U.S.C. §§
7661-7661f, and the federally approved Louisiana Title V
program, or any rule or permit issued thereunder.”
EPA v. Louisiana Generating, Civil Action
No. 09-100-JJB-RLB, ECF No. 1 at 1 (M.D. La. Feb. 18,
2009). On March 5, 2013, the Court entered a
Consent Decree providing, in pertinent part, the following:
WHEREAS, the Settling Defendant affirms that a portion of the
emissions technology, including related to PM emissions and
refueling, under this consent decree, will allow it to comply
with the Mercury [and] Air Toxics Rule, a change in
environmental law promulgated after the filing of the
Louisiana Generating, ECF No. 427 at
The Customer Cooperatives allege that “on the basis of
this self-serving statement, ” LaGen has wrongly
characterized remediation costs of past excess emissions of
nitrous oxides (“NOx”), sulfur dioxide
(“SO2”), and particulate matter
(“PM”) as related to the 2011 Mercury and Air
Toxics Standards (“MATS”) Rule, as opposed to
environmental laws in effect prior to the execution of the
Contracts. (See Compl. ¶¶
Customer Cooperatives specifically contend that the following
five categories of costs have been wrongly assessed by LaGen:
(i) the boiler conversion of Unit 2 at LaGen's Big Cajun
II power plan from coal to natural gas (including natural gas
pipeline costs); (ii) the installation of PM continuous
emission monitoring systems (“CEMS”) on Units 1
and 3; (iii) “certain costs” associated with the
ash handling collection systems; (iv) “certain
costs” of electrostatic precipitator
(“ESP”) upgrades; and (v) “certain
costs” that LaGen has identified as MATS chemical
costs. (Compl. ¶¶ 27, 30, 34, 37).
Customer Cooperatives assert that LaGen has wrongly assessed
them with approximately $38.1 million between 2016 and 2025
in remediation costs. (Compl. ¶ 28). The Customer
Cooperatives allege that “[o]f the approximately $38.1
million in costs that [they] dispute, approximately $10.4
million are capital costs, approximately $16.2 million are
interest expenses, and approximately $11.5 million are
operations and maintenance expenses.” (Compl. ¶
28). The Customer Cooperatives challenge LaGen's position
that it “has appropriately allocated chemical costs
between the Activated Carbon Injection system (a mercury
control) and the dry sorbent injection (‘DSI') and
SNCR [Selective Non-Catalytic Reduction system] required by
the Consent Decree.” (Compl. ¶ 29). The Customer
Cooperatives assert that they have “already suffered
significant harm, paying more than $7.6 million in
unjustified charges from July 2015 through May 2017.”
(Compl. ¶ 31).
Customer Cooperatives served on LaGen a Second Set of
Interrogatories and Second Set of Document Requests on March
30, 2018, and a Third Set of Document Requests on April 13,
2018. (R. Doc. 39-7).
12, 2018, the Customer Cooperatives filed a Motion for Leave
to Serve Additional Discovery on Defendant. (R. Doc. 39).
This motion sought modification of the Court's Scheduling
Order to modify the April 13, 2018 deadline to complete
written discovery to allow the Customer Cooperatives to
timely serve the foregoing discovery requests. (R. Doc. 39).
The Court denied the motion and found the discovery requests
untimely. (R. Doc. 51).
Customer Cooperatives filed the instant Motion to Compel on
November 2, 2018, the deadline to file discovery motions and
to take fact witness depositions. (R. Doc. 84).
Law and Analysis
otherwise limited by court order, the scope of discovery is
as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the
action, the amount in controversy, the parties' relative
access to relevant information, the parties' resources,
the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope
of discovery need not be admissible in evidence to be
discoverable.” Fed.R.Civ.P. 26(b)(1). The court must
limit the frequency or extent of discovery if it determines
that: “(i) the discovery sought is unreasonably
cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action; or (iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C).
court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense.” Fed.R.Civ.P. 26(c)(1). Rule
26(c)'s “good cause” requirement indicates
that the party seeking a protective order has the burden
“to show the necessity of its issuance, which
contemplates a particular and specific demonstration of fact
as distinguished from stereotyped and conclusory
statements.” In re Terra Int'l, Inc., 134
F.3d 302, 306 (5th Cir. 1998) (quoting United States v.
Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).
26(c) of the Federal Rules of Civil Procedure allows the
court to issue a protective order after a showing of good
cause “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.”
Fed.R.Civ.P. 26(c)(1). Rule 26(c)'s “good
cause” requirement indicates that the party seeking a
protective order has the burden “to show the necessity
of its issuance, which contemplates a particular and specific
demonstration of fact as distinguished from stereotyped and
conclusory statements.” In re Terra Int'l,
Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting
United States v. Garrett, 571 F.2d 1323, 1326 n.3
(5th Cir. 1978)).
to compel discovery responses are governed by Rule 37(a) of