MYTAPN v. Ecology; Dell Marketing LP and Patricia Martin, Intervenor
Appeal of a Notice of Construction Approval to install generators
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 Dell Marketing LP (Dell) to install and operate 28 diesel generators at its data center in Quincy, Washington. The diesel generators are used to provide back-up power for the data center in case of power interruptions.
MYTAPN is a group in Quincy, Washington that is concerned about impacts to air quality from diesel generators. This is not the first time an appeal filed by MYTAPN has come before this Board challenging notices of approval issued for data centers in Quincy. MYTAPN has appealed four other approvals of notices of construction. In the first of the other four appeals involving a Notice of Construction issued to Microsoft, MYTAPN survived summary judgment on two issues, which went to a full evidentiary hearing. Following the hearing, the Board upheld the approval order with additional conditions. The subsequent appeals were dismissed on summary judgment. MYTAPN had no expert witness in these cases.
In this appeal, Ecology and Dell moved for summary judgment on 16 legal issues from the Pre-Hearing Order, and requested that the appeal be dismissed. The motions were supported by multiple, detailed expert declarations and thorough legal arguments. MYTAPN’s response, in contrast, was not supported by any expert declaration and the legal arguments were conclusory in nature. Many of MYTAPNs arguments raised issues that had not been identified in the pre-hearing order, or had already been addressed by the Board in the prior data center cases. The Board held that many of MYTAPN’s arguments were conclusory or speculative in nature, and/or completely and convincingly refuted by Respondents in their replies. The motions in this case addressed issues of significant technical and legal complexity, and the burden was on MYTAPN to respond with affidavits or other documents, preferably by qualified expert(s), of sufficient probity to create a genuine issue of fact, or to support their legal argument. The Board concluded that MYTAPN had failed to meet its burden, and granted summary judgment to respondents on all issues.