Riverkeeper, Inc. v. Mirant Lovett, LLC
| Decision Date | 15 December 2009 |
| Docket Number | No. 05-CV-2792 (CS).,05-CV-2792 (CS). |
| Citation | 675 F.Supp.2d 337 |
| Parties | RIVERKEEPER, INC., Plaintiff, v. MIRANT LOVETT, LLC, as owners and operators of the Lovett Generating Station, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Daniel E. Estrin, Karl S. Coplan, Pace Environmental Litigation Clinic, Inc., White Plains, NY, for Plaintiff.
Michael A. Oropallo, Hiscock & Barclay, LLP, Syracuse, NY, for Defendant.
Plaintiff Riverkeeper, Inc. brought this action against Defendant Mirant Lovett, LLC ("Lovett"), as a citizen suit under the Clean Water Act. See 33 U.S.C. § 1365(a). Plaintiff alleges that Defendant violated the terms of its State Pollution Discharge Elimination System ("SPDES") permit by failing to timely implement environmental safeguards at a Lovett power station drawing water from the Hudson River. Now pending before this Court is Defendant's Motion to Dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). (Doc. 31.) For the reasons stated below, Defendant's Motion to Dismiss is granted in part and denied in part.
This action arises from a dispute between Riverkeeper, a non-profit corporation that identifies its mission as the effort to "conserve and enhance the biological integrity of the Hudson River and its tributaries and to protect the Hudson River's natural resources," (Complaint ¶ 8), and Lovett, which owned and operated the Mirant Lovett Power Generating Station (hereinafter, the "generating station" or "plant") located in the Town of Tomkins Cove in Rockland County, New York (id. ¶ 11, 19). Riverkeeper alleges that Lovett operated its generating station in violation of SPDES Permit No. NY-0005711 (hereinafter, "SPDES Permit"). (Id. ¶ 11; Affidavit of Amy K. Kendall in Support of Defendant's Motion to Dismiss the Complaint (Kendall Aff.) Ex. 3.) Unless otherwise stated, the following facts are drawn from Plaintiffs Complaint (Doc. 1), and accepted as true for the purposes of Defendant's Motion to Dismiss.
Most of Plaintiffs 5,000 members live on or near the Hudson River, and "share a common concern about the quality of the Hudson River and its surroundings." (Id. ¶ 8.) Many of these members were served by Lovett's generating station, which utilized cooling water intake structures subject to the conditions of the SPDES Permit.1 Under the permit, Lovett was required to implement the Gunderboom Marine Life Exclusion System ("Gunderboom" or "MLES") to protect marine life in the river and to monitor the exclusion rate of aquatic organisms, in order to minimize adverse environmental impacts pursuant to the Clean Water Act. (Id. ¶ 20.) The SPDES Permit required that Lovett implement the MLES by February 23 each year or "when ice conditions on the Hudson River allow[ed] for safe deployment, whichever is later." (Id. ¶ 21.) The latter date is known as the "ice-out date." (Id. ¶ 22.) Riverkeeper alleges that Lovett "consistently delayed ... implementing the MLES[] as well as monitoring the Exclusion Rate as required by [the] permit." (Id. ¶ 20.) In 2004, for example, Lovett allegedly failed to implement the MLES until April 30, despite ice conditions permitting safe deployment on or around February 23. (Id. ¶ 23.) Riverkeeper also alleges that ice conditions permitted safe deployment by February 2005, but Lovett had not, as of the filing of the Complaint in March 2005, deployed the MLES or conducted biological monitoring as required by the SPDES Permit.2 (Id. ¶¶ 24-27.)
Lovett contends that the terms of the SPDES Permit were effectively modified by a consent order into which it entered with the New York State Department of Environmental Conservation ("DEC") on June 29, 2004. (Defendant's Memorandum of Law in Support of Motion to Dismiss ("Def.'s Mem") 5.) Under the terms of the consent order, the DEC imposed a $10,000 civil penalty upon Lovett for violating the SPDES Permit in 2004, and set a fixed deadline for installation of the Gunderboom MLES in subsequent years. (Kendall Aff. Ex. 4 (hereinafter, "2004 Consent Order").) Specifically, the Consent Order required MLES deployment by May 17 in 2004, and by April 20 in each subsequent year until the expected expiration of the SPDES Permit in 2008.3 Lovett contends that the instant suit is barred under the Clean Water Act ("CWA" or the "Act"), which prohibits citizen suits when state or federal authorities have diligently prosecuted and caused the violations alleged in the citizen suit to cease without any likelihood of recurrence. Lovett further argues that the case has been rendered moot by the shutdown of the plant in 2008 (and its subsequent demolition in 2009) and the termination of the SPDES permit in 2009, and that any of Riverkeeper's remaining claims for civil damages were discharged by the entry of a plan of reorganization in October 2007 following Lovett's bankruptcy.
"To 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, ___ U.S. ___, 129 S.Ct. 1937, 1949, 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. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citations and quotation marks omitted). While Federal Rule of Civil Procedure 8 "marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 129 S.Ct. at 1950.
In considering whether a complaint states a claim upon which relief can be granted, the court "begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determines whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. Deciding whether a complaint states a plausible claim for relief is "a contextspecific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not `shown'—`that the pleader is entitled to relief.'" Id. (quoting Fed. R.Civ.P. 8(a)(2)).
The Clean Water Act expressly prohibits discharge of any pollutant into navigable waters without an appropriate permit issued by the United States Environmental Protection Agency ("EPA") or under a federally approved state permit system, such as that pursuant to which the SPDES Permit was issued by the DEC. See 33 U.S.C. §§ 1311(a), 1342; N.Y. Envtl. Conserv. Law § 17-0801 (McKinney 2006). The Act further provides that "any citizen may commence a civil action on his own behalf ... against any person ... who is alleged to be in violation of [the Act]." 33 U.S.C. § 1365(a).4 This provision is limited, however, in that a citizen may not bring suit if a "State has commenced and is diligently prosecuting an action" against the violator.5 Id. § 1319(g). Thus, the Act permits citizen suits for violations of the Act only "absent enforcement action by the EPA or state agencies." Conn. Coastal Fishermen's v. Remington Arms, 989 F.2d 1305, 1311 (2d Cir.1993).
"Citizen suits play an important role in the Act's enforcement scheme," and "[t]he citizen suit provisions were designed not only to `motivate government agencies' to take action ... but also to make citizens partners in the enforcement of the Act's provisions." Weiler v. Chatham Forest Prods., 392 F.3d 532, 536 (2d Cir.2004) (quoting Wilder v. Thomas, 854 F.2d 605, 613 (2d Cir.1988)). "The purpose of the citizen suit is to stop violations of the Clean Water Act that are not challenged by appropriate state and federal authorities." Atl. States Legal Found. v. Eastman Kodak, 933 F.2d 124, 127 (2d Cir. 1991); see N. & S. Rivers Watershed Ass'n v. Scituate, 949 F.2d 552, 555 (1st Cir. 1991) (). A citizen suit brought pursuant to Section 1365 of the Act may not revisit the terms of Eastman Kodak, 933 F.2d at 127-128. Accordingly, citizen suits brought under the CWA must "be prospective in nature and must supplement, not supplant, state enforcement of the Act."6 Id. at 127 (internal quotation marks omitted). Such a suit cannot, therefore, be maintained when competent state authorities diligently prosecute an action, thereby terminating a polluter's violations of the Act.
Lovett argues that the 2004...
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