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Roanoke River Basin Association v. Duke Energy Progress, LLC

United States District Court, M.D. North Carolina

May 29, 2018




         Plaintiff, Roanoke River Basin Association (the “Association”), initiated this citizen enforcement action concerning the Roxboro Steam Electric Plant located in Person County, North Carolina (“Roxboro Plant”). (ECF No. 1.) The suit alleges that Defendant, Duke Energy Progress, LLC (“Duke Energy”), has violated the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq., and the Coal Combustion Residuals Rule (“CCR Rule” or the “Rule”), [1] 40 C.F.R. § 257.50 et seq., which became effective October 14, 2015. (See id.; see 80 Fed. Reg. 21, 302 (April 17, 2015).) Before the Court is Duke Energy's Motion to Dismiss Plaintiff's Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 10.) For the reasons that follow, the Court grants Duke Energy's motion.

         I. PARTIES

         The Association is a “non-profit public interest organization[, ] with members in North Carolina and Virginia, ” and states that “[i]ts mission is to establish and carry out a strategy for the development, use, preservation, and enhancement of the resources of the Roanoke River [B]asin.” (ECF No. 1 ¶ 12.) Its members include “local governments, non-profit, civic and community organizations, regional government entities, businesses, and individuals.” (Id.) These members own property, fish, and enjoy other recreational activities in the Roanoke River Basin, including in the vicinity of, and downstream from, the Roxboro Plant. (Id. ¶ 13.)

         Duke Energy “is engaged in the generation, transmission, distribution, and sale of electricity.” (Id. ¶ 16.) Duke Energy owns and operates the Roxboro Plant and its two unlined coal ash lagoons, known as the East and West Ash Basins, which are located on the banks of Hyco Lake and Sargents River in Person County. (Id. ¶¶ 3, 16) “[O]ver 19 million tons of coal ash and other wastes” are stored by Duke Energy in these unlined coal ash lagoons. (ECF No. 1 ¶ 3; see ECF No. 11 at 5.)


         On April 17, 2015, the United States Environmental Protection Agency (“EPA”) published the CCR Rule “to regulate the disposal of coal combustion residuals . . . as solid waste under subtitle D of the [RCRA].”[2] 80 Fed. Reg. 21, 302 (April 17, 2015). The CCR Rule establishes “national minimum criteria for existing and new CCR landfills and . . . CCR surface impoundments . . . consisting of location restrictions, design and operating criteria, groundwater monitoring and corrective action, closure requirements and post closure care, and recordkeeping, notification, and internet posting requirements.” Id. The Rule is self-implementing in that “facilities are directly responsible for ensuring that their operations comply with [the Rule's] requirements.” Id. at 21, 311. The Rule's requirements are enforceable by States and through citizen suits. See 42 U.S.C. § 6972; see also 80 Fed. Reg. at 21, 427.

         The preamble to the CCR Rule provides, in pertinent part, that because the Rule establishes “minimum requirements only . . . states may . . . impose more stringent requirements.” 80 Fed. Reg. at 21, 332. Further, the preamble provides that the Rule's “criteria do not preempt other state and federal requirements.” Id. Prior to the enactment of the CCR Rule, North Carolina enacted the Coal Ash Management Act of 2014 (“CAMA”), N.C. Gen. Stat. § 130A-309.200 et seq. Under CAMA, the North Carolina Department of Environmental Quality (“NCDEQ”) is charged with developing proposed classifications for all CCR sites, based on an assessment of the “sites' risks to public health, safety, and welfare; the environment; and natural resources[, ] and shall determine a schedule for closure and required remediation.” N.C. Gen. Stat. § 130A-309.213(a)-(b).[3]

         Under the CCR Rule, “[t]he owner or operator of a CCR unit must prepare a written closure plan, ” which includes information specified in 40 C.F.R. § 257.102(b)(1)(i)-(vi). 40 C.F.R. § 257.102(b). Pursuant to the Rule, on November 11, 2016, Duke Energy published a Closure Plan (the “Plan” or the “Closure Plan”) for the Roxboro Plant, dated October 12, 2016. (ECF No. 1 ¶ 45; ECF No. 1-1.) On August 2, 2017, after providing notice, as required by the RCRA and the Rule, to EPA and NCDEQ, (ECF No. 1 ¶ 9), the Association filed this lawsuit alleging, among other things, that “Duke Energy has prepared and published a CCR Rule closure plan that fails to meet the minimum requirements for closure plans” in violation of the Rule, (id. ¶ 58). Specifically, the Association requests that this Court “[i]ssue a declaratory judgment stating that Duke Energy is violating the [CCR] Rule and the [RCRA] by failing to comply with the closure plan requirements and the floodplain requirements of the Rule and the [RCRA], and that Duke Energy is violating the open dumping prohibition of the [RCRA].” (Id. at 20, Prayer for Relief.) Further, the Association requests “preliminary and permanent injunctive relief to ensure that Duke Energy files a closure plan for its Roxboro coal ash lagoons that satisfies the requirements of the Act.” (Id. at 21, Prayer for Relief.)

         Duke Energy has filed the instant motion to dismiss the Association's Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 10.)


         A. Rule 12(b)(1)

         The court's subject matter jurisdiction is limited in that the court “possess[es] only the jurisdiction authorized . . . by the United States Constitution and by federal statute.” United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). A motion under Rule 12(b)(1) governs dismissal for lack of subject matter jurisdiction, and raises the question of “whether [the plaintiff] has a right to be in the district court at all and whether the court has the power to hear and dispose of [the] claim.” Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012). Under Article III of the United States Constitution, the jurisdiction of a federal court is limited to cases and controversies, which implicates certain doctrines to include standing and ripeness. See U.S. Const. art. III, § 2; Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 n.5 (2014). While each are threshold jurisdictional issues, standing doctrine addresses the question of “who may sue, ” and ripeness doctrine addresses “when a party may sue.” Hispanic Leadership Fund, Inc. v. Fed. Election Comm'n, 897 F.Supp.2d 407, 424 (E.D. Va. 2012).

         The burden of establishing subject matter jurisdiction is on the plaintiff. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). However, irrespective of whether either party raises the issue of subject matter jurisdiction, the court has an independent obligation to ensure that it possesses jurisdiction before proceeding. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 480 (4th Cir. 2005). Once a court determines it lacks subject matter jurisdiction over a claim, it must dismiss that claim. See Jones v. Calvert Grp., Ltd., 551 F.3d 297, 301 (4th Cir. 2009).

         B. Rule 12(b)(6)

         A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure “challenges the legal sufficiency of a complaint, ” including whether it meets the pleading standard of Rule 8(a)(2). Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2) requires a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), thereby “giv[ing] the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A complaint may fail to state a claim upon which relief can be granted in two ways: first, by failing to state a valid legal cause of action, i.e., a cognizable claim, see Holloway, 669 F.3d at 452; or second, by failing to allege sufficient facts to support a legal cause of action, see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013).

         IV. ...

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