Forever v. Kinder Morgan Energy Partners, L.P.

• Decision Date: 20 April 2017
• Docket Number: C.A. No. 8:16-4003-HMH.
• Citation: 252 F.Supp.3d 488
• Parties: UPSTATE FOREVER and Savannah Riverkeeper, Plaintiffs, v. KINDER MORGAN ENERGY PARTNERS, L.P. and Plantation Pipe Line Company, Inc., Defendants.
• Court: U.S. District Court — District of South Carolina

252 F.Supp.3d 488

UPSTATE FOREVER and Savannah Riverkeeper, Plaintiffs,

v.KINDER MORGAN ENERGY PARTNERS, L.P. and Plantation Pipe Line Company, Inc., Defendants.

C.A. No. 8:16-4003-HMH.

United States District Court, D. South Carolina, Anderson Division.

Signed April 20, 2017

Christopher Kaltman DeScherer, Charleston, SC, Frank S. Holleman, III, Chapel Hill, NC, for Plaintiffs.

Clayton M. Custer, Womble Carlyle Sandridge and Rice, Greenville, SC, Richard Edwin Morton, Womble Carlyle Sandridge and Rice, Charlotte, NC, for Defendants.

OPINION & ORDER

Henry M. Herlong, Jr., Senior United States District Judge

This matter is before the court on the Defendants' motion to dismiss the Plaintiffs' complaint. In their complaint, Plaintiffs Upstate Forever and Savannah Riverkeeper allege that Defendants Kinder Morgan Energy Partners, L.P. ("Kinder Morgan") and Plantation Pipe Line Company, Inc. ("PPL") have violated the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 – 1376, through the unlawful discharge of gasoline, gasoline and petroleum substances, and other contaminants that have ultimately flowed into the waters of the United States.¹ The Defendants have moved to dismiss for failure to state a claim for relief pursuant to Rule 12(b)(6) and for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Further, the Defendants argue that the Plaintiffs' claims for injunctive relief should be dismissed based on primary jurisdiction abstention and Burford abstention.² After review, the court grants the Defendants' motion to dismiss.

I. FACTUAL AND PROCEDURAL BACKGROUND

This is an action arising out of a petroleum leak from PPL's pipeline on property owned by Eric and Scott Lewis, which is located in Anderson County, South Carolina near Belton, South Carolina (the "spill site"). (Compl. ¶ 1, ECF No. 1.); (Defs. Mem. Supp. Mot. Dismiss 1, ECF No. 14–1.) PPL owns the 3,100 mile pipeline that runs underground through the property. (Id.¶¶ 3–4, ECF No. 1.) PPL is a subsidiary of Kinder Morgan. (Id.¶ 4, ECF No. 1.) In December 2014, a leak caused by the failure of a patch over a dent was discovered on the pipeline on the property. (Id.¶ 5, ECF No. 1.) The leak resulted in a discharge of an estimated 369,000 gallons of petroleum products. (Compl. ¶ 6, ECF No. 1.) The pipeline leak was repaired within a few days of discovering the leak and remediation efforts commenced. (Defs. Mem. Supp. Mot. Dismiss 3, ECF No. 14–1.)

South Carolina Department of Health and Environmental Control ("SCDHEC") is involved in the oversight and enforcement of remediation efforts. (Id., ECF No. 14–1.) To date, the Defendants have removed approximately 209,000 gallons of gasoline and petroleum products from the spill site. (Compl. ¶ 8, ECF No. 1.) However, it is undisputed that gasoline and petroleum products remain at the spill site and that remediation is ongoing. The Plaintiffs allege that the leak has resulted in the contamination of Browns Creek, Cupboard Creek, and two wetlands located in the vicinity of the spill. (Id.¶ 11, ECF No. 1.)

The Defendants filed the instant motion to dismiss on February 17, 2017. (Mot. Dismiss, ECF No. 14.) The Plaintiffs responded in opposition on March 13, 2017. (Mem. Opp'n Mot. Dismiss, ECF No. 23.) The Defendants filed a reply on March 20, 2017. (Reply, ECF No. 24.) In addition, on March 7, 2017, the American Petroleum Institute ("API") and the Association of Oil Pipe Lines ("AOPL") filed a motion for leave to file amici curiae brief in support of Defendants' motion to dismiss. (Mot. Leave File Amici Curiae, ECF No. 17.) The Plaintiffs responded in opposition to the motion for leave to file amici curiae brief on March 21, 2017. (Pls. Mem. Opp'n Mot. Leave, ECF No. 25.) AOPL filed a reply on March 27, 2017. (Reply, ECF No. 26.) The court granted API and AOPL's motion for leave on March 29, 2017. This matter is now ripe for consideration.

II. DISCUSSION OF THE LAW

A. Motion to Dismiss Standard

When presented with a Rule 12(b)(6) motion to dismiss, the court must restrict its inquiry to the sufficiency of the complaint rather than "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Ma tin, 980 F.2d 943, 952 (4th Cir. 1992). In order to survive a Rule 12(b)(6) motion, "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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ).

B. Rule 12(b)(1) Standard

In addition, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may move to dismiss a cause of action based on lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Challenges to jurisdiction under Rule 12(b)(1) can be raised in two different ways: facial attacks and factual attacks. Thigpen v. United States, 800 F.2d 393, 401 n.15 (4th Cir. 1986) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) ), disagreed with on other grounds, Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988). A facial attack questions the sufficiency of the complaint. Id. In this context, the court must accept the allegations in the complaint "as true, and materials outside the pleadings are not considered." Id. Alternatively, a factual attack challenges the factual allegations in the complaint upon which subject-matter jurisdiction is based. Id. In this situation, the court is required to consider evidence outside the pleadings as well, without converting the motion to a motion for summary judgment. Id.; Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). To prevent dismissal, "the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists." Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768. Thus, a dismissal should only be granted when "the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id.

C. CWA

To establish a CWA violation, plaintiffs must show the discharge of a pollutant into navigable waters from any point source "except as authorized by a permit issued under the National Pollution Discharge Elimination System (NPDES) program." Assateague Coastkeeper v. Alan & Kristin Hudson Farm, 727 F.Supp.2d 433, 435 (D. Md. 2010) ; 33 U.S.C. §§ 1311(a), 1342, 1362(12) ; Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1142 (10th Cir. 2005) ("To establish a violation of these sections, a plaintiff must prove that the defendant (1) discharged (2) a pollutant (3) into navigable waters (4) from a point source (5) without a permit."). The Defendants raise a number of arguments in support of their position that this case must be dismissed for lack of jurisdiction and failure to state a claim because the discharge of petroleum products from the pipeline is not ongoing and was not a discharge of pollutants into navigable waters from a point source.

1. Point Source

The Plaintiffs allege that the Defendants have violated the CWA by discharging pollution from a point source into navigable waters without a permit. (Compl. ¶ 64–66, ECF No. 1.) The Defendants contend that there was no requirement to possess a NPDES permit because there was and is no point source discharge of any pollutants into navigable waters. (Defs. Mem. Supp. Mot. Dismiss 11–14, ECF No. 14–1.)

Congress passed the Clean Water Act in 1972 to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. A central provision of the Act is its requirement that individuals, corporations, and governments secure National Pollutant Discharge Elimination System (NPDES) permits before discharging pollution from any point source into the navigable waters of the United States.

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 133 S.Ct. 1326, 1331, 185 L.Ed.2d 447 (2013) (internal citations and quotation marks omitted). Pursuant to the CWA, "point source" means "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." 33 U.S.C. § 1362(14). "Discharge of a pollutant" means "any addition of any pollutant to navigable waters from any point source." § 1362(12). Under the CWA, navigable waters is "a defined term, and the definition is simply ‘the waters of the United States.’ "

Rapanos v. United States, 547 U.S. 715, 730–31, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (quoting 33 U.S.C. § 1362(7) ). The Plaintiffs must allege more than merely identify a possible point source. The CWA requires that the Plaintiffs also allege that the point source actually added petroleum to navigable waters. See, e.g., Sierra Club v. BNSF Ry. Co., No. C13-967-JCC, 2016 WL 6217108, at *7 (W.D. Wash. Oct. 25, 2016) ("Based on the statutory language, Plaintiffs must do more than point to a statutorily defined point source to prove that there was actual addition of [petroleum] to the waters. They must also prove that there was a discharge to navigable waters.")

Nonpoint source pollution is generally excluded from CWA regulations and is left to the states to regulate through their own tracking and targeting methods. The reason for this is, in part, because nationwide uniformity in controlling non-point source pollution [is] virtually impossible and, in part, because Congress is

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