Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Washington-St. Tammany Electric Cooperative, Inc. v. Louisiana Generating, L.L.C.

United States District Court, M.D. Louisiana

May 1, 2019

WASHINGTON-ST. TAMMANY ELECTRIC COOPERATIVE, INC., ET AL.
v.
LOUISIANA GENERATING, L.L.C.

          ORDER

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         Before 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).

         I. Background

         On June 28, 2017, Washington-St. Tammany Electric Cooperative, Inc. (“WST”) and Claiborne Electric Cooperative, Inc. (“Claiborne”) (collectively, “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”)[1] 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. ¶¶ 7-10).

         The 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).[2] 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 complaint.

Louisiana Generating, ECF No. 427 at 4.[3] 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. ¶¶ 21-31).[4]

         The 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).

         The 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).

         The 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).

         On June 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).

         The 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).

         II. Law and Analysis

         A. Legal Standards

         “Unless 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).

         “The 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)).

         Rule 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)).

         Motions to compel discovery responses are governed by Rule 37(a) of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.