Bell v. Cheswick Generating Station, Genon Power Midwest, L.P., No. 12–4216.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtFUENTES
Citation734 F.3d 188
Decision Date20 August 2013
Docket NumberNo. 12–4216.
PartiesKristie BELL; Joan Luppe, Appellants v. CHESWICK GENERATING STATION, GenOn Power Midwest, L.P.

734 F.3d 188

Kristie BELL; Joan Luppe, Appellants

No. 12–4216.

United States Court of Appeals,
Third Circuit.

Argued: June 25, 2013.
Opinion Filed: Aug. 20, 2013.

[734 F.3d 189]

James E. DePasquale, Esq., Pittsburgh, PA, Peter W. Macuga, II, Esq., [Argued], Macuga & Liddle, Detroit, MI, for Appellants.

Scott C. Oostdyk, Esq., [Argued], McGuireWoods, Richmond, VA, Paul K. Stockman, Esq., McGuireWoods, Pittsburgh, PA, for Appellee.

Makram B. Jaber, Esq., Allison D. Wood, Esq., Hunton & Williams, Washington, DC, for Amicus Curiae Utility Air Regulatory Group in Support of Appellee.

Before: FUENTES, FISHER, and CHAGARES, Circuit Judges.


FUENTES, Circuit Judge:

Kristie Bell and Joan Luppe are the named plaintiffs in a class action complaint (the “Complaint”) filed against Cheswick Generating Station, GenOn Power Midwest, L.P. (“GenOn”).1 The putative class (the “Class”) is made up of at least 1,500 individuals who own or inhabit residential property within one mile of GenOn's Cheswick Generating Station, a 570–megawatt coal-fired electrical generation facility in Spring dale, Pennsylvania (the “Plant”).

Complaining of ash and contaminants settling on their property, the Class brought suit against GenOn under several state law tort theories. GenOn argued that because the Plant was subject to comprehensive regulation under the Clean Air Act, it owed no extra duty to the members of the Class under state tort law. The District Court agreed with GenOn and dismissed the case. On appeal, we are faced with a matter of first impression: whether the Clean Air Act preempts state law tort

[734 F.3d 190]

claims brought by private property owners against a source of pollution located within the state. Based on the plain language of the Clean Air Act and controlling Supreme Court precedent, we conclude that such source state common law actions are not preempted. Accordingly, we reverse the decision of the District Court and remand the case for further proceedings.

A. Environmental Regulation Under the Clean Air Act

The Clean Air Act, 42 U.S.C. § 7401 et seq., enacted in 1970, is a comprehensive federal law that regulates air emissions under the auspices of the United States Environmental Protection Agency (“EPA”). Congress enacted the law in response to evidence of the increasing amount of air pollution created by the industrialization and urbanization of the United States and its threat to public health and welfare. 42 U.S.C. § 7401(a)(2). The Clean Air Act states that air pollution prevention and control is the primary responsibility of individual states and local governments but that federal financial assistance and leadership is essential to accomplish these goals. Id. § 7401(a)(3)-(4). Thus, it employs a “cooperative federalism” structure under which the federal government develops baseline standards that the states individually implement and enforce. GenOn REMA, LLC v. EPA, 722 F.3d 513, 516, No. 12–1022, 2013 WL 3481486, at *1 (3d Cir. July 12, 2013). In so doing, states are expressly allowed to employ standards more stringent than those specified by the federal requirements. 42 U.S.C. § 7416.

The Clean Air Act makes the EPA responsible for developing acceptable national ambient air quality standards (“NAAQS”), which are meant to set a uniform level of air quality across the country in order to protect the populace and the environment. Id. § 7409(b)(1). Before such levels are adopted or modified by the EPA, “a reasonable time for interested persons to submit written comments” must be provided. Id. § 7409(a)(1)(B). The EPA itself does not typically regulate individual sources of emissions. Instead, decisions regarding how to meet NAAQS are left to individual states. Id. § 7410(a)(1). Pursuant to this goal, each state is required to create and submit to the EPA a State Implementation Plan (“SIP”) which provides for implementation, maintenance, and enforcement of NAAQS within the state. Id. All SIPs must be submitted to the EPA for approval before they become final, and once a SIP is approved, “its requirements become federal law and are fully enforceable in federal court.” Her Majesty the Queen in Right of the Province of Ontario v. Detroit, 874 F.2d 332, 335 (6th Cir.1989) (citing 42 U.S.C. § 7604(a)).

States are tasked with enforcing the limitations they adopt in their SIPs. They must regulate all stationary sources located within the areas covered by the SIPs, 42 U.S.C. § 7410(a)(2)(C), and implement a mandatory permit program that limits the amounts and types of emissions that each stationary source is allowed to discharge, id. §§ 7661a(d)(1), 7661c(a). “[E]ach permit is intended to be a source-specific bible for Clean Air Act compliance containing in a single, comprehensive set of documents, all [Clean Air Act] requirements relevant to the particular polluting source.” North Carolina, ex rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291, 300 (4th Cir.2010) (internal quotation marks omitted). Furthermore, pursuant to the federal Prevention of Significant Deterioration of Air Quality program in areas attaining NAAQS, “a covered source must, among other things, install the ‘best available control

[734 F.3d 191]

technology [ ] for each pollutant subject to regulation....’ ” Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 133 (D.C.Cir.2012) (quoting 42 U.S.C. § 7475(a)(4)).

B. Modes of Redress Under the CAA

The Clean Air Act contains a “citizen suit” provision, see42 U.S.C. § 7604, which permits the filing of civil suits in district courts “against any person ... who is alleged to have violated ... or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation.” Id. § 7604(a)(1). The statute further grants a cause of action against the EPA if it fails to perform any non-discretionary responsibility, id. § 7604(a)(2), and also allows suit against any entity that constructs a source of emissions without securing the requisite permits. Id. § 7604(a)(3). Furthermore, the EPA “retains the power to inspect and monitor regulated sources, to impose administrative penalties for noncompliance, and to commence civil actions against polluters in federal court.” Am. Elec. Power Co., Inc. v. Connecticut, ––– U.S. ––––, 131 S.Ct. 2527, 2538, 180 L.Ed.2d 435 (2011).

The citizen suit provision contains a “savings clause” which provides, in pertinent part:

Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief (including relief against the Administrator or a State agency).

42 U.S.C. § 7604(e). This is the Clean Air Act's “citizen suit savings clause.”

The Clean Air Act also contains a separate savings clause entitled “Retention of State authority,” codified at 42 U.S.C. § 7416. This provision focuses on states' rights, and reads as follows:

Except as otherwise provided ... nothing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution....

Id. § 7416. This is the Clean Air Act's “states' rights savings clause.”

C. Regulation at the Cheswick Plant

Federal, state, and local authorities extensively regulate and comprehensively oversee the operations of the Cheswick Plant pursuant to their authority under the Clean Air Act. The EPA, the Pennsylvania Department of Environmental Protection, and the Allegheny County Health Department comprise the administrative bodies that are primarily responsible for defining environmental emission standards and policing compliance with the Clean Air Act at the Plant. As discussed above, at the EPA's direction and with its approval, states issue operating permits for all stationary sources under Subchapter V of the Clean Air Act. See42 U.S.C. §§ 7661a-f Subchapter V program authority has in this instance been delegated to Allegheny County. GenOn's Subchapter V permit for Cheswick (the “Permit”) imposes limits on the emission of various particulate matter, gases, chemical, and compounds from coal combustion. See App. 91–161.

The Permit collects all the operational requirements that are contained in Subchapter V of the Clean Air Act, and approved by the EPA. It specifically provides that GenOn may not “operate ... any source in such manner that emissions of malodorous matter from such source are perceptible beyond the property line,”

[734 F.3d 192]

App. 106 (§ IV.3); must “take all reasonable actions to prevent fugitive air contaminants from becoming airborne,” App. 112 (§ IV.19); may not “conduct ... any materials handling operation in such manner that emissions from such operation are visible at or beyond the property line,” App. 106 (§ IV.4); must ensure that “[a]ll air pollution control equipment” is “properly installed, maintained, and operated,” App. 106 (§ IV.5); and may not “operate any source ... in such manner that emissions from such source ... [m]ay reasonably be anticipated to endanger the public health, safety, or welfare.” App. 96 (§ III.1).

However, it also provides that “nothing in this permit relieves the permittee from the obligation to comply with all applicable Federal, State and Local Laws and regulations,” App. 96 (Declaration of Policy), and contains a savings clause which provides that:

Nothing in this permit shall be construed as impairing any right or remedy now existing or hereafter created in equity, common law or statutory law with respect to air pollution, nor shall any court be deprived of such jurisdiction for the reason that such air pollution constitutes a violation of this permit.

App. 102 (§...

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