Cate v. Transcontinental Gas Pipe Line Corp.

• Decision Date: 13 October 1995
• Docket Number: Civ. A. No. 95-0014-C.
• Court: U.S. District Court — Western District of Virginia
• Parties: Samuel N. CATE, et al., Plaintiffs, v. TRANSCONTINENTAL GAS PIPE LINE CORP., Defendant.

904 F. Supp. 526

Samuel N. CATE, et al., Plaintiffs, v. TRANSCONTINENTAL GAS PIPE LINE CORP., Defendant.

Civ. A. No. 95-0014-C.

United States District Court, W.D. Virginia, Charlottesville Division.

October 13, 1995.

Gail Starling Marshall, Rapidan, VA, and James M. Hecker, Trial Lawyers for Public Justice, P.C., Washington, DC, for plaintiffs.

George H. Gromel, Jr. and Cassandra Carol Collins, Hunton & Williams, Richmond, VA, for defendant.

MEMORANDUM OPINION

MICHAEL, District Judge.

The court referred this case to the Honorable B. Waugh Crigler, United States Magistrate Judge, pursuant to a standing order, for proposed findings of fact and a recommended disposition. The Magistrate Judge filed a Report and Recommendation on July 21, 1995, recommending that the court grant in part the defendant's March 13, 1995 motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Specifically, the Magistrate Judge recommended that the court dismiss Counts One, Two and Three of the complaint, but deny the defendant's motion as to Count Four. The plaintiffs filed Objections to the Magistrate's Report pursuant to Fed.R.Civ.P. 72(b). In considering the plaintiffs' Objections, this court is required to undertake a de novo review of the record in this case. Orpiano v. Johnson, 687 F.2d 44, 47-8 (4th Cir.1982). Upon review of the record, the court adopts the recommendation of the Magistrate Judge for the reasons stated herein. Accordingly, the court grants the defendant's motion to dismiss as to the first three counts, but denies the motion as to the fourth count.

I.

Plaintiffs are citizens of Virginia and property owners in Orange County, Virginia. Defendant Transcontinental Gas Pipe Line Corp. ("TGPL"), a Delaware corporation with its principal place of business in Houston, Texas, owns and operates five natural gas pipe line compressor stations in Virginia, including one in Unionville that is adjacent to plaintiffs' property. These facilities emit, among other pollutants, nitrogen dioxide ("NO2"), one of six pollutants regulated under the Clean Air Act, 42 U.S.C. § 7401 et seq.

Plaintiffs have brought suit against TGPL claiming that the emissions from the Unionville facility violate both the federal Clean Air Act and Virginia state law. Specifically, the complaint alleges that the emissions from the Unionville facility continuously violate (1) a state Order issued for the purpose of bringing TGPL into compliance with federal clean air standards (Count One); (2) the National Ambient Air Quality Standards for NO2 promulgated under the Clean Air Act (Count Two); and (3) the Virginia "odor rule" which, plaintiffs maintain, is federally enforceable under the Clean Air Act (Count Three). Finally, plaintiffs allege that the emissions constitute a nuisance under Virginia law (Count Four).

Plaintiffs seek to enjoin TGPL to comply with the state Order, the NAAQS and the odor rule. Plaintiffs also seek to have the court enjoin further pollution, odor and noise at the Unionville facility and order abatement. Finally, plaintiffs seek civil penalties, compensatory and punitive damages, and attorneys' fees and costs.

Plaintiffs maintain that the citizen suit provision of the Clean Air Act, 42 U.S.C. § 7604, furnishes them with standing to bring the first three claims in federal court. Plaintiffs assert that the court may exercise both diversity jurisdiction, 28 U.S.C. § 1332, and supplemental jurisdiction, 28 U.S.C. § 1367, over the fourth, state-law claim.

TGPL has filed a motion to dismiss all the claims on the grounds that (1) neither the state Order, the NAAQS, nor the state odor rule are enforceable under the Clean Air Act; and (2) the state nuisance claim does not adequately plead jurisdiction and is, in any event, time-barred.

II.

The basic framework of the Clean Air Act ("the Act") is relatively straight-forward. The Act requires the Environmental Protection Agency ("EPA") to establish National Ambient Air Quality Standards ("NAAQS") for pollutants harmful to the public health and welfare. To date, EPA has set NAAQS for six pollutants, including NO2. Each state is required to submit to EPA, for its approval, a State Implementation Plan ("SIP") detailing how the state expects to achieve the NAAQS for each pollutant. Thus, the purpose of the SIP is to provide for the implementation, maintenance, and enforcement of the NAAQS, 42 U.S.C. § 7410(a)(1), in each of the state's air quality control regions, 42 U.S.C. § 7407.

The Act contains a provision authorizing so-called "citizen suits" to remedy specific violations of the Act. 42 U.S.C. § 7604. It is this provision which is at the heart of this dispute. The provision provides that a suit may be brought against any person who is alleged to be in violation of:

(A) an emission standard or limitation under this chapter or (B) an order issued by the EPA Administrator or a State with respect to such a standard or limitation.

42 U.S.C. § 7604(a)(1).

"Emission standard or limitation under this chapter" is defined at § 7604(f)(1) as:

(1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard,

* * * * * *

(4) any other standard, limitation, or schedule established under any permit issued pursuant to subchapter V of this chapter or under any applicable State implementation plan approved by the Administrator, any permit term or condition, and any requirement to obtain a permit as a condition of operations which is in effect under this chapter ... or under an applicable implementation plan.

42 U.S.C. § 7604(f).

Thus, for a given requirement to be enforceable under § 7604, it must (1) fit within one of the definitions of an "emission standard or limitation" under § 7604(f), and (2) be "in effect under" the Act. The primary issue before the court is whether the requirements outlined in the first three counts of the complaint (that is, the state Order, the NAAQS, and the odor rule) are enforceable under § 7604. If they are not, then Count Four must adequately plead diversity jurisdiction for the court to entertain that claim alone. The court addresses each of the Counts separately below.

III.

A.

Count One alleges that the Unionville facility continuously violates a state Order to enforce emission control requirements under the Act. The state Order to which the complaint refers is an Agreement¹ entered into between the Virginia Department of Air Pollution Control ("the Department") and TGPL.

In 1991, the Department found that high concentrations of NO2 emitted from the Unionville facility "cause or contribute to an exceedance of the National Ambient Air Quality Standard for nitrogen dioxide." Agreement at p. 5. In addition, the Department found that the NO2 emissions caused the Unionville facility to violate Virginia's "odor rule."² As a result of these findings, the Department entered into an Agreement ("the Agreement") with TGPL.

The Agreement provides in pertinent part:

1. TGPL shall review and analyze possible alternatives to reduce emissions, or other appropriate means to eliminate the modeled exceedance of the National Ambient Air Quality Standard for nitrogen dioxide. The analysis shall include all actions that may be proposed at the facility; this may include but is not limited to: add on control devices to be installed, modifications to existing equipment, changes in methods or hours of operation, changes in release parameters of pollutants emitted, or any combination of such measures. The analysis shall also include modeling to verify that the proposed corrective actions will in fact result in reductions in ambient concentrations of NO2 sufficient to eliminate the modeled exceedance of the NAAQS.

2. The analysis specified above shall also include a detailed plan specifying milestone dates by which the corrective actions proposed will be achieved.

* * * * * *

4. Once the plan and the modeling analysis specified in this Agreement have been reviewed by the Department, a new agreement shall be developed. This new agreement shall incorporate the plan of corrective actions; it shall establish milestones that are to be met to ensure that the measures are taken in an expeditious manner.

5. The agreement called for in paragraph 4 of this Section will most likely result in a source specific change to the State Implementation Plan (SIP); as such it will be subject to a public comment period, with a public hearing. Once the public comment period and public hearing have been completed, a source specific SIP revision shall be submitted to the U.S. Environmental Protection Agency for its comments and approval.

Agreement at 6.

The Agreement contains an enforcement provision that authorizes the Department to levy civil fines against TGPL should it fail to submit its modeling and subsequent plan to the Department. See Agreement at 7.

Count One alleges that TGPL has not complied with the terms of this Agreement. Specifically, plaintiffs allege that TGPL has yet to submit a modeling protocol that is acceptable to the Department. Consequently, TGPL has not submitted a plan for abatement. Complaint ¶ 19.

The court must determine whether the Agreement is enforceable under the citizen suit provision of the Clean Air Act. As noted above, for a given requirement to be enforceable under § 7604, it must (1) fit within one of the definitions of an "emission standard or limitation" under § 7604(f), and (2) be "in effect under" the Act. 42 U.S.C. §§ 7604(a)(1)(A), (f).³ The court holds that the Agreement fits within one of the definitions of "emission standard or limitation" in that it creates a "schedule or timetable of compliance." 42 U.S.C. § 7604(f)(1). However, the court also concludes that the Agreement is not "in effect under" the Act. Thus, the Agreement is not enforceable under the citizen suit provision.

1.

The court concludes that the Agreement satisfies the threshold definition of an emission standard. Section...