United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS UNITED STATES DISTRICT JUDGE
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”),
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.
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.)
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.)
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].” 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.
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. §
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.)
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.
STANDARD OF REVIEW
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.
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).
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)).
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.