MYTAPN v. Ecology; Intergate.Quincy LLC and Patricia Martin Intervenor
Reason:
Appeal of an Order to install diesel generators
Closing Comments:
Microsoft-Yes; Toxic Air Pollution-No (MYTAPN) appealed a Notice of Construction Approval Order (Approval Order) issued by the Washington State Department of Ecology (Ecology) authorizing Intergate.Quincy LLC (Intergate) to install and operate 44 diesel generators at the Intergate-Quincy Data Center in Quincy, Washington. The generators provide emergency backup power to support data center functions in the case of power interruptions. Intergate anticipates that up to eight independent tenants will occupy the Intergate-Quincy Data Center.
MYTAPN is a citizens group in Quincy, Washington that is concerned about the potential for impact to the air quality in Quincy, WA from diesel generators. The pre-hearing order for this appeal identified 19 legal issues, covering a wide array of challenges to the Approval Order. Ecology and Intergate moved for summary judgment on all issues, and requested that the appeal be dismissed. Ecology and Intergate supported their motions with a total of eight expert declarations, and extensive and comprehensive briefing. MYTAPN’s response, on the other hand, was not supported by any expert declaration or other reliable factual evidence to counter Respondents’ experts. Some of MYTAPN’s legal arguments were repetitive of arguments made in their prior appeals of similar approvals for other installation and operation of diesel generators for data centers in Quincy. See MYTAPN v. Ecology and Microsoft, PCHB No. 10-162, (Order on Summary Judgment, Sept. 22, 2011)(Microsoft Summary Judgment); MYTAPN v. Ecology and Microsoft, PCHB No. 10-162 (2012)(Microsoft Final Decision); MYTAPN v. Ecology and Yahoo!, PCHB No. 11-067, (Order on Summary Judgment, Nov. 15, 2012)(Yahoo! Summary Judgment). These arguments had already been rejected by the Board in those cases. Many of MYTAPNs arguments raised new issues that had not been identified in the pre-hearing order, which controls the issues for hearing. Other arguments were conclusory or speculative in nature, and/or completely and convincingly refuted by Respondents in their replies. The Board concluded that Ecology and Intergate had met their of showing that there were no genuine issues of material fact and that they were entitled to judgment as a matter of law. In response, MYTAPN had failed to meet its burden by setting forth specific facts which sufficiently rebutted Ecology and Intergate’s contentions and disclosed the existence of a genuine issue as to a material fact. Therefore, the Board granted summary judgment to respondents on all issues, and dismissed MYTAPN’s appeal. MYTAPN filed a petition for reconsideration, which the Board had not acted on to date.