Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC

• Decision Date: 20 October 2015
• Docket Number: No. 1:14–CV–753.,1:14–CV–753.
• Citation: 141 F.Supp.3d 428
• Parties: YADKIN RIVERKEEPER, INC., and Waterkeeper Alliance, Inc., Plaintiffs, v. DUKE ENERGY CAROLINAS, LLC, Defendant.
• Court: U.S. District Court — Middle District of North Carolina

141 F.Supp.3d 428

YADKIN RIVERKEEPER, INC., and Waterkeeper Alliance, Inc., Plaintiffs,

v.DUKE ENERGY CAROLINAS, LLC, Defendant.

No. 1:14–CV–753.

United States District Court, M.D. North Carolina.

Signed Oct. 20, 2015.

Frank S. Holleman, III, Myra Dean Blake, John Timothy Suttles, Jr., Chapel Hill, NC, for Plaintiff.

James P. Cooney, III, Bradford A. De Vore, Meredith J. McKee, Richard Edwin Morton, Womble Carlyle Sandridge & Rice, PLLC, Charlotte, NC, for Defendant.

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.

Plaintiffs Yadkin Riverkeeper, Inc., and Waterkeeper Alliance, Inc., (collectively, "Riverkeepers") bring this citizen enforcement action against Defendant Duke Energy Carolinas, LLC, ("Duke Energy") alleging violations of the Clean Water Act of 1972 at Duke Energy's Buck Steam Station power plant. Before the Court are Duke Energy's Motion to Dismiss Plaintiffs' Complaint with Prejudice (ECF No. 20) and its Motion to Stay (ECF No. 21). The Court heard oral argument on August 5, 2015.¹ For the reasons below, the Court denies Duke Energy's motions.

I. BACKGROUND

A. Clean Water Act

In 1972, Congress enacted the Clean Water Act ("CWA" or "Act") "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a) (2012). The Act prohibits "the discharge of any pollutant by any person" into the waters of the United States, except as in compliance with certain provisions of the Act. Id. § 1311(a).² To comply, pollutant dischargers can obtain a permit through the National Pollutant Discharge Elimination System ("NPDES") permit program, administered by the Environmental Protection Agency ("EPA") and authorized states. See id. § 1342(a)-(b). The agency responsible for issuing NPDES permits in North Carolina is the Department of Environment and Natural Resources ("DENR"). See N.C. Gen.Stat. § 143B–282(a)(1)(a). "NPDES permits impose limitations on the discharge of pollutants, and establish related monitoring and reporting requirements, in order to improve the cleanliness and safety of the Nation's waters." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). "Noncompliance with a permit constitutes a violation of the Act." Id.; see 40 C.F.R. § 122.41(a) (2015).

"[P]rimary responsibility for enforcement rests with the state and federal governments...." Piney Run Pres. Ass'n v. Cty. Comm'rs, 523 F.3d 453, 456 (4th Cir.2008) (quoting Sierra Club v. Hamilton Cty. Bd. of Cty. Comm'rs, 504 F.3d 634, 637 (6th Cir.2007) ). To ensure "a second level of enforcement," the Act's citizen suit provision, 33 U.S.C. § 1365, authorizes citizens "to bring suit against any NPDES permit holder who has allegedly violated its permit." Piney Run, 523 F.3d at 456 (quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 152 (4th Cir.2000) (en banc)). Citizen suits are meant "to supplement rather than to supplant governmental action," allowing citizens "to abate pollution when the government cannot or will not command compliance." Id. (quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60, 62, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) ). To that end, citizen suits are subject to two statutory limitations. First, a would-be plaintiff must give sixty days' notice to the EPA, the state, and the alleged violator of its intent to sue. 33 U.S.C. § 1365(b)(1)(A). The notice requirement provides the opportunity for the government to initiate its own enforcement action against the alleged violator and for the alleged violator "to bring itself into complete compliance with the Act," both obviating the need for a citizen suit. See Gwaltney, 484 U.S. at 59–60, 108 S.Ct. 376. Second, citizen suits are barred if the EPA or state is "diligently prosecuting" a civil or criminal enforcement action against the alleged violator in a federal or state court. 33 U.S.C. § 1365(b)(1)(B).

B. Buck Steam Station

Duke Energy is "engaged in the generation, transmission, distribution, and sale of electricity" in North Carolina. (Compl. ¶ 23, ECF No. 1.) It owns and operates a power plant at Buck Steam Station ("Buck"), located on the banks of the Yadkin River. (Id. ¶ 29.) From 1926 to 2013, Duke Energy generated electricity at Buck by burning coal, a process that produces substantial amounts of coal combustion residuals, or coal ash.³ (Id. ¶¶ 30–31.)

For nearly ninety years, Duke Energy disposed of this coal ash in three coal ash lagoons at the Buck site. (Id. ¶¶ 31–32.) The lagoons are unlined, span approximately 170 acres, and contain 1.5 billion gallons of coal ash and contaminated wastewater. (Id. ¶ 32.)

In 1976, Duke Energy obtained a NPDES permit ("Buck Permit") to discharge pollutants at Buck, and it has continuously renewed the permit since that time. (DENR's Compl. ¶¶ 65–66, ECF No. 20–2.) The current Buck Permit is effective from January 2012 to August 2016. (Buck Permit 1, ECF No. 30–9.) The permit authorizes Duke Energy to "discharge wastewater" from Buck into the Yadkin River "in accordance with effluent limitations, monitoring requirements, and other conditions" set forth in the permit. (Id. ) Specifically, the permit authorizes Duke Energy to discharge "once-through non-contact cooling water through outfall 001, treated wastewater from the ash basin through outfall 002, and yard sump overflows through outfall 002A." (Id. at 2.)

C. State Court Enforcement Action

On August 16, 2013, DENR filed a civil enforcement action against Duke Energy in state court. (DENR's Compl., ECF No. 20–2.) The DENR Complaint alleges violations of state environmental laws and groundwater regulations at six facilities, including Buck. (See id. ¶¶ 42–190.) The DENR Complaint identifies "seeps" at Buck to include "engineered discharges from the toe-drains of its Ash Basin and Ash Settling Ponds, which are different locations from the outfalls described in the Buck Steam Station NPDES Permit." (Id. ¶ 80.) The complaint states, "A seep or discharge from the Ash Basin, the Ash Settling Ponds or any other part of the Buck Steam Station that is not included in the Buck Steam Station NPDES Permit is an unpermitted discharge in violation of N.C. Gen.Stat. § 143–215.1(a)(1) and (a)(6)." (Id. ¶ 81; see id. ¶ 192.) The DENR Complaint further alleges that Duke Energy's "exceedances" of state groundwater standards for certain substances "at or beyond the compliance boundary of the Ash Basin and the Ash Settling Ponds at Buck Steam Station, are violations of the groundwater standards as prohibited by 15A NCAC 2L.0103(d)." (Id. ¶ 88; see id. ¶ 193.) In May 2014, the court granted the Riverkeepers' motion to intervene in DENR's state enforcement action. (Order 1, ECF No. 22–3.) The Riverkeepers have full rights of participation as a party, including the right to conduct discovery. (Id. at 2.)

D. Riverkeepers' Complaint

On September 3, 2014, the Riverkeepers filed suit in this Court, seeking "to enforce Permit requirements and Clean Water Act violations that DENR's Complaint does not seek to enforce." (Compl. ¶ 11, ECF No. 1.) The Riverkeepers assert four claims for relief: the Seep Claim, Hydrological Connection Claim,⁴ Removed Substances Claim, and Dam Safety Claim.

Seep Claim: The Riverkeepers first claim that Duke Energy has violated the Buck Permit by making unauthorized discharges of pollutants. The Buck Permit authorizes Duke Energy to discharge wastewater into the Yadkin River through three outfalls. (Buck Permit 2, ECF No. 30–9.) Beyond these authorized discharges, the Riverkeepers allege that Duke Energy is making additional, unpermitted discharges through engineered seeps, non-engineered seeps, and an unpermitted pipe, all in violation of the CWA. (Compl. ¶¶ 42–43, 55, ECF No. 1.) Acknowledging that DENR's state enforcement action includes a claim for engineered seeps, the Riverkeepers expressly limit their Seep Claim to discharges through non-engineered seeps and the unpermitted pipe. (Id. ¶¶ 12, 56.) The Riverkeepers' Complaint alleges that discharges through the non-engineered seeps "emerge" from the coal ash lagoons into a "tributary of the Yadkin River" and an "inlet that then flows into the Yadkin River," while discharges from the unpermitted pipe flow directly into the Yadkin River. (Id. ¶ 42.)

Hydrological Connection Claim: The Riverkeepers further claim that pollutants from the coal ash lagoons have entered the groundwater at Buck, which is hydrologically connected to the Yadkin River, High Rock Lake, and their tributaries. (Id. ¶¶ 45, 67.) The hydrologically connected groundwater then carries the pollutants into these surface waters. (See id. ¶¶ 48, 67.) The Riverkeepers claim that the "[u]npermitted discharges of pollutants via hydrologically connected groundwater to surface waters of the United States violate the Clean Water Act." (Id. ¶ 68; see id. ¶ 70.)

Removed Substances Claim: The Riverkeepers next allege that Duke Energy has violated a provision of the Buck Permit that requires substances "removed in the course of treatment or control of wastewaters" to be "utilized/disposed of ... in a manner such as to prevent any pollutant from such materials from entering waters of the State or navigable waters of the United States except as permitted by the Commission," (Buck Permit § II.C.6, ECF No. 30–9). The Riverkeepers allege that coal ash pollutants have been found in the groundwater at Buck and have been entering the Yadkin River, High Rock Lake, and their tributaries via seeps and streams. (Compl. ¶¶ 61–62, ECF No. 1.) They thus allege that Duke has violated the Buck Permit and the CWA by "allowing and causing" removed substances to enter waters of the state and the United States. (Id. ¶ 65.)

Dam Safety Claim: Finally, the Riverkeepers claim that Duke Energy has violated a provision of the Buck Permit that requires the facility to "meet the dam design and dam safety requirements" set out in state...