COMPLAINT - 1

Crag Law Center

917 SW Oak St., Suite 417

Portland, OR 97214

Tel. (503) 525-2722

Maura C. Fahey, OSB No. 133549

maura@crag.org - (503) 525-2722

Christopher G. Winter, OSB No. 984355

chris@crag.org - (503) 525-2725

Crag Law Center

917 SW Oak Street, Suite 417

Portland, OR 97205

Fax: (503) 296-5454

Attorneys for Plaintiff Rogue Advocates

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

MEDFORD DIVISION

ROGUE ADVOCATES, an Oregon nonprofit 

membership corporation,

 

 Plaintiff,

 v.

MOUNTAIN VIEW PAVING, INC, an 

Oregon corporation,

 Defendant.

 Case No.: 1:15-cv-1854

COMPLAINT FOR 

DECLARATORY AND

INJUNCTIVE RELIEF

AND CIVIL PENALTIES

(Pursuant to Clean Air Act, 

42 U.S.C. § 7604(a))

INTRODUCTION

1. This is a complaint for injunctive and declaratory relief and civil penalties under 

the citizen suit provision of the federal Clean Air Act, 42 U.S.C. § 7604. Plaintiff Rogue 

Advocates brings this civil action pursuant to the Clean Air Act, 42 U.S.C. § 7604(a)(1)(A), 

against Mountain View Paving, Inc (“Mountain View Paving” or “Defendant”), for past and 

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COMPLAINT - 2

Crag Law Center

917 SW Oak St., Suite 417

Portland, OR 97214

Tel. (503) 525-2722

continuing violations of the Clean Air Act and the General Air Containment Discharge Permit, 

AQGP-007 (“Permit”) issued by the Oregon Department of Environmental Quality (“DEQ”). 

2. Defendant owns and operates an asphalt batching plant (“the plant”) and paving 

business. Defendant’s operation of the plant is subject to the limitations and conditions of the 

AQGP-007 Permit, most recently issued by Oregon DEQ on October 17, 2007. Defendants have 

violated and continue to violate the terms of the Permit in violation of the Clean Air Act, 42 

U.S.C. §§ 7401 et seq. 

JURISDICTION

3. Rogue Advocates’ claims arise under the Clean Air Act, 42 U.S.C. §§ 7401 et 

seq. Jurisdiction over this action is conferred by 28 U.S.C. § 1331, because the claims present a 

federal question, and 42 U.S.C. § 7604, which creates jurisdiction over citizen enforcement of 

the Clean Air Act. A present, actual, and justiciable controversy exists between the parties. The 

requested relief is proper under 28 U.S.C. §§ 2201 (declaratory relief) and 2202 (injunctive

relief), and 42 U.S.C. § 7604(a) (civil penalties). 

4. As required by 42 U.S.C. § 7604(b)(1)(A), on February 18, 2015, Rogue 

Advocates sent Defendant a sixty-day notice of intent to sue for violations of the AQGP-007 

Permit. See Exhibit A (“Notice Letter”). As required by 40 C.F.R. § 54.2, Rogue Advocates 

also sent copies of the Notice Letter to officers of the Oregon DEQ, the Administrator of the 

United States Environmental Protection Agency (“EPA”), Gina McCarthy, and the EPA Region 

10 Administrator’s Office. More than sixty days have elapsed since Rogue Advocates properly 

served the Notice Letter on Defendant.

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COMPLAINT - 3

Crag Law Center

917 SW Oak St., Suite 417

Portland, OR 97214

Tel. (503) 525-2722

5. Pursuant to 42 U.S.C. § 7604(b)(1)(B), this court has jurisdiction as neither 

Oregon DEQ nor EPA has commenced and is diligently prosecuting a civil action against 

Defendant to require compliance with the Permit and the Clean Air Act. 

VENUE

6. Venue is proper in this Court pursuant to 42 U.S.C. § 7604(c)(1) because the 

events giving rise to these claims occurred at Defendant’s plant located in Talent, Oregon, which 

is within this judicial district. 

PARTIES

7. Plaintiff ROGUE ADVOCATES is an Oregon nonprofit membership corporation 

with its principal place of business in Williams, Oregon. Rogue Advocates’ mission is to 

cultivate livable and sustainable communities in Southern Oregon’s Rogue Valley region 

through advocacy, education and outreach around local land use issues. This includes the 

community in Talent, Oregon surrounding Defendant’s asphalt batching operations. 

8. Rogue Advocates has members who live, work, and recreate near Defendant’s 

property and asphalt batch plant operation. Specifically, Rogue Advocates has members who 

live in the Mountain View Estates community located just west of and adjacent to Defendant’s 

plant. Additionally, Rogue Advocates’ members use and enjoy Bear Creek and the Bear Creek 

Greenway path that runs alongside Defendant’s property to the west for recreational and 

aesthetic purposes including walking, fishing, biking, and other purposes, and those members 

intend to continue doing so on a regular basis in the future. 

9. Defendant’s batch plant operation emits smoke, dust, and fumes into the 

surrounding area, including the nearby Mountain View Estates community. Additionally, 

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COMPLAINT - 4

Crag Law Center

917 SW Oak St., Suite 417

Portland, OR 97214

Tel. (503) 525-2722

Defendant stores equipment, vehicles, material stockpiles and other structures within the 

floodplain and floodway of Bear Creek, a tributary to the Rogue River. Defendant’s operations 

degrade or threaten to degrade Rogue Advocates’ members’ use and enjoyment of their personal 

property, the Bear Creek Greenway and the adjacent Lyn Newbry Park because Defendant’s 

activities adversely affect air quality, livability, and aesthetic enjoyment of the area. Defendant’s 

operations are also accompanied by the risk of fire and explosion adjacent to the residential 

community of Mountain View Estates. 

10. The air quality and livability of the Talent, Oregon community, and the Mountain 

View Estates neighborhood specifically, directly affects the health, recreational, aesthetic and 

environmental interests of Rogue Advocates’ members. The interests of Rogue Advocates’ 

members have been, are being, and will continue to be adversely affected by Defendant’s failure 

to comply with the Clean Air Act and the Permit unless this Court grants the requested relief. 

The requested relief would redress these injuries. 

11. Defendant MOUNTAIN VIEW PAVING, INC. is an Oregon company with its 

principle place of business at 530 West Valley View Road, Talent, Oregon, 97540, property 

map: Township 38 South, Range 1W, Section 24, Tax Lot 600. It owns and operates the asphalt 

batch plant and paving business located at the same address.

LEGAL BACKGROUND

12. DEQ most recently re-issued the AQGP-007 General Air Contaminant Discharge 

Permit on October 17, 2007. See Exhibit B. DEQ granted Mountain View Paving coverage 

under the Permit on March 11, 2008; DEQ’s permit file number for the plant is 37-0522. The 

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COMPLAINT - 5

Crag Law Center

917 SW Oak St., Suite 417

Portland, OR 97214

Tel. (503) 525-2722

Permit allows Defendant to discharge air contaminants from processes and activities related to 

hot-mix asphalt pavement production. 

13. The Clean Air Act is designed to protect and enhance the quality of the nation’s 

air so as to promote the public health and welfare and the productive capacity of its population. 

42 U.S.C. § 7401(b)(1). The Clean Air Act provides for both federal and state roles in ensuring 

the goals of the Act are met with those roles reflected in section 110. 42 U.S.C. § 7410. Section 

110 imposes both an obligation and authority on states to develop air pollution control strategies 

for stationary sources within their boundaries. 42 U.S.C. § 7410. A critical mechanism for 

ensuring that states implement Clean Air Act requirements is the required adoption of State 

Implementation Plans (“SIPs”), which “provide[] for implementation, maintenance, and 

enforcement” of primary and secondary ambient air quality standards applicable within a state or 

air quality region within a state. 42 U.S.C. § 7410(a)(1). 

14. Once the EPA approves a SIP provision, the terms of that provision are binding 

on the state, regulatory agencies, and covered industries as a matter of federal law. 42 U.S.C. § 

7413(a)(2). On May 31, 1972, the EPA approved initial SIPs for a number of states, including 

Oregon. 37 Fed. Reg. 10842 (May 31, 1972). Oregon’s SIP provisions are part of the Oregon 

statutes and administrative rules. 

15. Oregon Administrative Rule (“OAR”) 340-216-0020(3) provides that “[n]o 

person may construct, install, establish, develop or operate any air contaminant source listed in 

OAR 340-216-8010 without first obtaining an Air Contaminant Discharge Permit (“ACDP”)

from DEQ.” Oregon’s SIP defines “source” based upon applicable Standard Industrial 

Classification (“SIC)” codes and supporting activities. OAR 340-200-0020(136) (defining 

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COMPLAINT - 6

Crag Law Center

917 SW Oak St., Suite 417

Portland, OR 97214

Tel. (503) 525-2722

source as, inter alia, a “facility” . . . that emits or is capable of emitting air contaminants to the 

atmosphere” and it “includes all pollutant emitting activities that belong to a single major 

industrial group as described in the Standard Industrial Classification Manual . . . or that support 

the major industrial group.”). Air contaminant is defined broadly to include dust, fume, gas, 

mist, odor, smoke, vapor, pollen, soot, carbon, acid or particulate matter, or any combination 

thereof. OAR 340-200-0020(8). 

16. Mountain View Paving’s asphalt batch plant operation constitutes an air 

contaminant “source” under Oregon’s SIP and the Clean Air Act. 

17. Mountain View Paving is assigned coverage under the current version of the 

General Air Containment Discharge Permit, AQGP-007, for SIC Code 2951 – Asphaltic 

Concrete Paving Plants. 

18. Emissions standards and other limitations contained within an Air Containment 

Discharge Permit are applicable requirements of Oregon’s SIP and the Clean Air Act. 40 C.F.R. 

§ 52.1988. 

19. Condition 1.4 of the AQGP-007 Permit provides, “[t]his 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.” Exhibit B at 2. 

20. The local land use and zoning laws that govern Defendant’s asphalt plant are 

found in the Jackson County Land Development Ordinance (“LDO”). See Exhibit C. LDO 

Chapter 3.1.1(A) provides, “[b]efore establishing any land use regulated by this Ordinance...an 

application for a Land Use Permit will be filed with the Department. * * * All uses, regardless of

Case 1:15-cv-01854-CL Document 1 Filed 09/30/15 Page 6 of 11
COMPLAINT - 7

Crag Law Center

917 SW Oak St., Suite 417

Portland, OR 97214

Tel. (503) 525-2722

permit type, will comply with any applicable standards set forth in Chapters 4 through 8, and 

with the general development standards set forth in Chapter 9.” Exhibit C at 2. 

21. The Jackson County LDO further provides that it is a violation of county law to:

B) Use land, construct, occupy, or place improvements . . . or conduct any 

activity on land, in any manner not in accordance with the standards set 

forth in this Ordinance, or with any special permit or order of the 

Development Services Department, Hearings Officer, Planning 

Commission, or Board of Commissioners issued hereunder. 

C) Conduct, without a permit, any activity for which a permit is required by 

this Ordinance. 

LDO Chapter 1.8.1. Exhibit C at 1. 

22. Any person may commence a civil action against any person who is alleged to 

have violated or to be in violation of an “emission standard or limitation.” 42 U.S.C. § 

7604(a)(1)(A).

23. “Emission standard or limitation” is defined, in relevant part, as “any other 

standard, limitation or schedule established under any permit issued . . . under any applicable 

State implementation plan approved by the Administrator, any permit term or condition, and any 

requirement to obtain a permit as a condition of operations.” 42 U.S.C. § 7604(f)(4). 

24. Violations of SIP requirements and of the requirements of permits issues under 

SIPs are thus violations of the Clean Air Act subject to enforcement in a Clean Air Act citizen 

suit. 

25. The Clean Air Act provides for civil penalties of up to $37,500 per violation per 

day for violations occurring after January 12, 2009. See 42 U.S.C. §§ 7413(b), 7413(e), and 

7604(a); 40 C.F.R. §§ 19.2 and 19.4. 

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COMPLAINT - 8

Crag Law Center

917 SW Oak St., Suite 417

Portland, OR 97214

Tel. (503) 525-2722

FACTUAL BACKGROUND AND DEFENDANT’S FAILURE TO OBTAIN LAND USE 

APPROVAL FOR ASPHALT BATCH PLANT

26. Defendant has operated its asphalt batch plant on the subject property since 2001. 

The subject property is zoned for rural residential development (RR-5 zone). Asphalt batch 

plants are not an allowed use within the RR-5 zone. See LDO 5.3.2; LDO Table 6.2-1 (Exhibit C

at 6-7, 8-9). 

27. Defendant does not hold, nor has it ever held, any special permit or order 

authorizing its operation of an industrial use in a residential zone. See LDO 1.8.1(B). 

28. Since 2011, Defendant has submitted multiple applications with Jackson County 

seeking land use approval to operate its asphalt batch plant in a residential zone. Each of those 

applications has been denied, most recently on September 24, 2015 on the basis that the asphalt

batch plant operation poses adverse impacts to the surrounding community.

29. Jackson County LDO Chapter 7 provides that “[a] Floodplain Development 

Permit will be required prior to initiating development activities in any Area of Special Flood 

Hazard...” where the “Area of Special Flood Hazard” includes the mapped floodplain and 

floodway. LDO 7.2.2(C) (Exhibit C at 13). LDO 7.2.15 provides, in part, “[n]o structure or land 

will hereafter be located, extended, converted or altered unless in full compliance with the terms 

of Section 7.2 and other applicable regulations.” Exhibit C at 16.

30. The subject property and Defendant’s asphalt batch plant operation are located 

adjacent to Bear Creek to the west, a tributary of the Rogue River. The entire property is located 

within the mapped flood hazard overlay of Bear Creek. See LDO 7.2 (Exhibit C at 10–16). A 

substantial portion of the property is located within the regulatory floodway of Bear Creek, with 

the remainder of the property located within the 100-year floodplain.

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COMPLAINT - 9

Crag Law Center

917 SW Oak St., Suite 417

Portland, OR 97214

Tel. (503) 525-2722

31. Defendant does not hold a Floodplain Development Permit for its asphalt 

batching operations within the Area of Special Flood Hazard of Bear Creek. 

32. Defendant has been in violation of Condition 1.4 of the Permit and the Clean Air 

Act since at least February 2010. Without the required land use approvals for the subject 

property, Defendant’s Clean Air Act permit is not valid. See Exhibit B at 2. Each day that 

Defendant continues to operate without the required land use and zoning approvals for the 

subject property constitutes a separate violation of the Permit and the Clean Air Act. 

33. On January 30, 2015, Oregon DEQ sent Defendant a Warning Letter notifying 

Defendant that it was in violation of Condition 1.4 of the Permit. Since that time, DEQ has not 

taken any action to enforce the terms of the Permit or the Clean Air Act against Defendant’s 

violations. 

34. The continuous nature of Defendant’s failure to secure land use approval or to 

cease its operations in violation of the Clean Air Act demonstrates at least a reasonable 

likelihood of continued violations in the future. Defendant has violated and continues to violate 

the requirements of the AQGP-007 Permit and the Clean Air Act. 

CLAIM FOR RELIEF

35. Plaintiff re-alleges and incorporates by reference every allegation made in 

paragraphs 1 through 34 above. 

36. Operating any air contaminant source in violation of any permit limitation or 

condition or any requirement of a State Implementation Plan constitutes a violation of the Clean 

Air Act. See 42 U.S.C. §§ 7604(a)(1)(A), 7604(f)(4); 40 C.F.R. § 52.1988; OAR 340-216-

0020(3). 

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COMPLAINT - 10

Crag Law Center

917 SW Oak St., Suite 417

Portland, OR 97214

Tel. (503) 525-2722

37. On each day of operation since at least 2010, Defendant has been in violation of 

Condition 1.4 of the AQGP-007 Permit, Oregon’s SIP, and the Clean Air Act for operating in 

violation of local land use and zoning laws.

38. In the alternative, on each day of operation since at least 2010, Defendant has 

been in violation of the Clean Air Act for operating without a valid permit. 

39. Defendant’s violations are reasonably likely to continue in the future in the 

absence of the requested relief. 

REQUEST FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court:

A. Declare that Defendant’s operations without required land use approval 

constitutes a violation of the AQGP-007 Permit and the Clean Air Act;

B. Declare that Defendant has violated the Clean Air Act by failing to comply with 

Condition 1.4 of the AQGP-007 Permit and Oregon’s SIP;

C. Temporarily and permanently enjoin Defendant from discharging air 

contaminants from its asphalt batch plant operation until obtaining land use 

approvals as required by the limitations and conditions of the applicable AQGP007 Permit;

D. Assess civil penalties of up to $37,500 per day of violation against Defendant for 

each violation of the Clean Air Act pursuant to 42 U.S.C. § 7413(b), adjusted by 

40 C.F.R. §§ 19.2, 19.4; 

E. Award Plaintiff its costs and expenses, including reasonable attorneys fees, 

incurred in bringing this action; and

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COMPLAINT - 11

Crag Law Center

917 SW Oak St., Suite 417

Portland, OR 97214

Tel. (503) 525-2722

F. Such other relief as the Court may deem just and proper. 

DATED this 30th day of September, 2015. 

Respectfully submitted, 

_s/ Maura C. Fahey_______________

Maura C. Fahey, OSB # 133549

maura@crag.org

Christopher G. Winter, OSB # 984355

chris@crag.org

Crag Law Center

917 SW Oak St., Suite 417

Portland, Oregon 97205

(503) 525-2722

Fax (503) 296-5454

Attorneys for Plaintiffs

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