Dodge v. Mirant Mid-Atl., LLC

• Citation: 732 F.Supp.2d 578
• Decision Date: 13 August 2010
• Docket Number: Civil Action No. AW-09-1686
• Parties: Nancy DODGE et al., Plaintiffs, v. MIRANT MID-ATLANTIC, LLC, et al., Defendants.
• Court: U.S. District Court — District of Maryland

732 F.Supp.2d 578

Nancy DODGE et al., Plaintiffs,

v.MIRANT MID-ATLANTIC, LLC, et al., Defendants.

Civil Action No. AW-09-1686.

United States District Court,

D. Maryland,

Southern Division.

Aug. 13, 2010.

David B. Kline, Deanna Kaplan Tanner, Villari Brandes and Kline PC, Conshohocken, PA, Jennifer S. Peterson, Environmental Integrity Project, Washington, DC, for Plaintiffs.

Ava E. Lias Booker, Sung B. Yhim, McGuire Woods LLP, Baltimore, MD, Scott C. Oostdyk, Virginia L. H. Nesbitt, McGuire Woods LLP, Richmond, VA, for Defendants.

MEMORANDUM OPINION

ALEXANDER WILLIAMS, JR., District Judge.

Plaintiffs Nancy Dodge and Norton Dodge ("the Dodges"), David Bookbinder, Chris Schmitthenner, and the Chesapeake Climate Action Network ("CCAN"), filed this case against Defendants Mirant Mid-Atlantic, LLC ("Mirant Mid-Atlantic") and Mirant Chalk Point, LLC ("Mirant Chalk Point") on June 26, 2009, for alleged violations of the Clean Air Act, 42 U.S.C. §§ 7601-7671(q)(2006), and its implementing federal and state regulations at the Chalk Point Power Plant ("Chalk Point" or "Chalk Point Facility") located in Prince George's County in designated "Area IV." Currently pending before the Court is Defendants' Motion to Dismiss or, in the Alternative, to Refer to the Maryland Department of the Environment (Doc. No. 19). The Court has reviewed the entire record with respect to the instant motion. The issues have been briefed and the Court does not believe a hearing is necessary. See Local Rule 105.6 (D.Md. 2008). For the reasons stated below, the Court will GRANT Defendants' Motion to Dismiss and DENY Defendants' alternative Motion to Refer the case.

I. FACTUAL AND STATUTORY BACKGROUND

Mirant Chalk Point is an energy generating plant located in Prince George's County, Maryland. Two of its oil and natural gas-fired boilers are the subject of this lawsuit-Emissions Unit E-3, which came into operation in 1975, and Emissions Unit E-4, which was placed in service in 1981. These units burn residual fuels for at least part of the year.

As an energy production facility, Mirant Chalk Point is subject to the Clean Air Act ("CAA"), 42 U.S.C. §§ 7601-7671(q)(2006). The CAA authorizes the Environmental Protection Agency ("EPA") to set air quality standards that each state must in turn develop a plan to enforce. "Following the promulgation of the[ ][EPA] standards, Maryland adopted and the EPA approved a Maryland [State Implementation Plan "SIP"] which is published in the Code of Maryland Regulations (COMAR) and in the Code of Federal Regulations." Maryland Waste Coalition v. SCM Corp., 616 F.Supp. 1474, 1476-1477 (D.Md.1985) (citing COMAR 190.18.06; 40 C.F.R. Subpart V §§ 52.1070-52.1117).

The Maryland SIP prohibits "the discharge of particulate matter in amounts greater than [0.02] grains per dry standard cubic foot of exhaust gas," in equipment burning residual oil, id.; COMAR 26.11.09.06 (the "particulate matter standard"), and also requires installation of a dust collector in emissions units burning residual fuel (the "dust collector requirement"), id.; prohibits burning of "fuel with a sulfur content by weight in excess of or which otherwise exceeds" one percent, COMAR 26.11.09.07 (the "sulfuric acid standard"); and also prohibits "discharge of emissions from any fuel burning equipment, other than water in an uncombined form, which is greater than 20 percent opacity." COMAR 26.11.09.05 (the "visible emission standard").

To resolve an enforcement proceeding, the Maryland Department of the Environment ("MDE") (then known as the Maryland State Department of Health and Mental Hygiene) and PEPCO, Mirant Chalk Point's predecessor, entered a Secretarial Order (by consent) dated July 19, 1979, and approved by the EPA as an SIP revision providing Emissions Unit E-3 with a waiver from compliance with the dust-collector device requirement. The parties entered a similar consent order controlling the applicable particulate matter standard and particulate matter control equipment requirement to be enforced at Emissions Units E-3 and E-4 in 1992, and this Order excused these Units from installing dust collectors so long as they did not exceed the stipulated emissions limit. The Order also included a requirement that PEPCO conduct stack testing on Units E-3 and E-4 every other year. In May 2003 MDE and Mirant Chalk Point entered into another consent order to resolve an enforcement proceeding for an alleged 2002 particulate matter emissions violation in Emissions Unit E-4. For that violation, MDE imposed a $20,000 fine on Mirant Chalk Point.

Most recently, on September 11, 2006, MDE and Mirant Chalk Point entered into a Consent Decree Order ("2006 Consent Decree"), which the MDE had submitted to the Circuit Court for Prince George's County, Maryland, contemporaneously with MDE's enforcement proceedings against Mirant Chalk Point for opacity exceedances in violation of the visible emissions standard, COMAR 26.11.09.05. This 2006 Decree voided the entire 1979 Secretarial Order, including the waiver provision for Emissions Units E-3 and E-4, and established new emissions standards. The 2006 Decree is currently in force, and the Circuit Court for Prince George's County, Maryland has continuing jurisdiction.

On August 30, 2006, four citizens groups, including CCAN, sued Mirant Chalk Point and Mirant in this Court for violations of federal and state opacity standards at the Chalk Point Facility. Judge Motz dismissed the case for lack of subject matter jurisdiction, finding that the MDE was already diligently prosecuting the alleged CAA visible emissions standard violations at Chalk Point and that the 2006 Decree adequately addressed these issues. Envtl. Integrity Project v. Mirant Corp., No. 06-2249, 2007 WL 62619, at *1, 2007 U.S. Dist. LEXIS 1219, at *1-2 (D.Md. Jan. 3, 2007).

Plaintiffs brought this one-count Complaint on June 26, 2009, alleging that Defendants emit excessive particulates in violation of the particulate matter emissions standards and the dust collector requirement,¹ because they have "repeatedlyburned dirty, less expensive residual fuel oil in Emissions Units E-3 and E-4 ... without legally required pollution controls to limit harmful particulate matter pollution." (Compl. ¶ 2.) Plaintiffs seek injunctive relief prohibiting Defendants from operating Emissions Units E-3 and E-4 at least until they install adequate particulate matter pollution controls or use a cleaner fuel such as natural gas or distillate oil; declaratory relief; civil penalties of up to $32,500 per day for each CAA violation; and an award of costs of litigation. Defendants have moved to dismiss under 12(b)(1) and 12(b)(6), and move in the in the alternative, to refer the case to the MDE.

II. STANDARD OF REVIEW

Defendants move to dismiss under both 12(b)(1) and 12(b)(6). The burden of proving that the court has subject matter jurisdiction rests with the plaintiff. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999). "When a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), 'the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.' " Evans, 166 F.3d at 647 (4th Cir.1999) (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991)).

The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is to test the sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). Except in certain specified cases, a plaintiff's complaint need only satisfy the "simplified pleading standard" of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). In two recent cases, the United States Supreme Court clarified the standard applicable to Rule 12(b)(6) motions. See Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Those cases make clear that Rule 8 "requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n. 3, 127 S.Ct. 1955 (2007). That showing must consist of at least "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955.

In its determination, the Court must consider all well-pled allegations in a complaint as true, Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), and must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.1999). The Court need not, however, accept unsupported legal allegations, Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir.1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.1979).

III. ANALYSIS

Defendants first move to dismiss Plaintiffs' Complaint pursuant to Rule 12(b)(1) and 12(b)(6) on the grounds that this Court lacks subject matter jurisdiction because MDE continues to diligently prosecute the alleged violations of the CAA particulate matter emission standard and dust collector requirement, and because the suit is barred by the doctrine of res judicata. Next, Defendants move in the alternative for the Court to refer the case to the MDE for review on the ground that the MDE has primary and ongoing jurisdiction over directing specific modes of compliance with environmental standards. Additionally, Defendants move to dismiss as a party Defendant Mirant...