United States District Court, E.D. Virginia, Norfolk Division
Sierra Club, Plaintiff: Deborah M. Murray, Gregory Doran
Buppert, LEAD ATTORNEYS, William Choice Cleveland, IV,
Virginia Electric and Power Company, doing business as
Dominion Virginia Power, Defendant: Dabney Jefferson Carr,
IV, LEAD ATTORNEY, Troutman Sanders LLP (Richmond), Richmond,
OPINION & ORDER
A. Jackson, United States District Judge.
the Court is Defendant Virginia Electric and Power Company
d/b/a Dominion Virginia Power (" Dominion" )'s
Motion to Dismiss. ECF No, 4. Sierra Club, a national
nonprofit organization " dedicated to exploring,
enjoying, and protecting the wild places of the earth,"
filed a Complaint against Defendant a Virginia corporation
that operates the Chesapeake Energy Center Power Plant in
Chesapeake, Virginia (the " CEC" power plant).
Plaintiff cites the Clean Water Act and alleges that
Defendant's disposal of combustion waste at the CEC power
plant has contaminated and continues to contaminate
groundwater with arsenic and other heavy metals and harmful
pollutants. Plaintiff seeks a declaratory judgment stating
that Defendant is violating the Clean Water Act. injunctive
relief, civil penalties, costs, attorneys' fees, and
expert fees. Defendant seeks dismissal of the Complaint on
numerous grounds. For the reasons stated below,
Defendant's Motion to Dismiss is DENIED.
FACTUAL AND PROCEDURAL HISTORY
facts alleged in the Complaint are as follows. This action
challenges alleged contamination of groundwater and
surrounding surface waters from the Chesapeake Energy Center
power plant (the " CEC" power plant) in Chesapeake,
Virginia by Virginia Electric and Power Company doing
business as Dominion Virginia Power. Compl. ¶ 1. The CEC
power plant operates under a Virginia Pollutant Discharge
Elimination System permit (" VPDES" permit) issued
to Dominion by the Virginia Department of Environmental
Quality. ¶ 6. The VPDES permit does not authorize
Dominion to introduce the alleged coal ash contaminants into
the groundwater or the surrounding surface waters. ¶ 7.
Defendant's unauthorized discharge of pollutants into the
groundwater violates the federal Clean Water Act, 33 U.S.C.
§ 1251 and the terms of the VPDES permit. ¶ 8.
Plaintiff Sierra Club brings this citizen enforcement action
pursuant to Section 505 of the Clean Water Act, 33 U.S.C.
§ 1365. ¶ 9.
alleges that it and its members have " longstanding
concerns about the impact of coal ash disposal facilities on
water quality and wildlife in rivers and creeks across
Virginia, including the Southern Branch of the Elizabeth
River and Deep Creek." Compl. at ¶ 5. Specifically,
Plaintiff alleges that its members fish, bird, and boat in
and around Deep Creek and the Southern Branch of the
Elizabeth River, which is adjacent to and downstream from the
CEC power plant. ¶ 5. Plaintiff seeks, inter
alia, an order requiring Defendant to take immediate and
substantial action to stop the alleged pollution from the
coal ash disposal facilities; remove the ash; remediate the
groundwater contamination from the CEC power plant.
now raise three claims against Defendant. Count One alleges
Unauthorized Discharges of Pollution from a Point Source to
Waters of the United States in Violation of the Clean Water
Act. Specifically, Plaintiff alleges that " [g]round
water monitoring reports show ongoing and persistent
contamination of the groundwater at the CEC site with
pollutants such as arsenic, barium, beryllium, cadmium,
chromium, cobalt, copper, lead, nickel, selenium, sulfide,
vendium, and zinc." ¶ 128. Count Two alleges
Ongoing Violations of Dominion's VPDES Permit by
Discharge of Sludges or Solids Removed in Treatment. Count
Three also alleges Ongoing
Violations of Dominion's VPDES Permit, but Count Three
pertains to Discharge of Deleterious Substances into State
requests the following relief: (1) a declaratory judgment
stating that Dominion is violating the Clean Water Act; (2):
Civil penalties against Dominion of up to $37,500 per
violation per day pursuant to various sections of the Clean
Water Act; (3) Costs including reasonable attorneys' fees
and expert fee; and (4) such further and additional relief as
the Court deems just and proper.
April 9, 2015, Defendant filed its Motion to Dismiss on
various grounds. Plaintiff filed a Memorandum in Opposition
on April 23, 2015, and Defendant filed a reply on April 30,
2015. On October 22, 2015, Plaintiff filed Notice of
Supplemental Authority, and Defendant filed a Response on
October 29, 2015. This case has been fully briefed and is now
ripe for judicial determination. The Court has determined
that a hearing would not aid in the decisional process and
therefore rules on the briefs. For the reasons stated below,
Defendant's Motion is DENIED.
STANDARD OF REVIEW
Motion to Dismiss is based on Federal Rule of Civil Procedure
12(b)(1) (lack of subject-matter jurisdiction) and 12(b)(6)
(failure to state a claim upon which relief can be granted).
Rule 12(b)(1) provides for the dismissal of an action if the
court lacks subject matter jurisdiction over a claim or the
cause of action as a whole. The Court assumes that all
factual allegations in the complaint are true where the
opposing party contends that a complaint fails to allege
facts upon which subject matter jurisdiction can be based.
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
If the factual basis for jurisdiction is challenged, the
plaintiff has the burden of proving subject matter
jurisdiction. Richmond, F. & P. R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991). To determine
whether subject matter jurisdiction exists, the reviewing
court may consider evidence outside the pleadings, such as
affidavits or depositions, Adams, 697 F.2d at 1219,
or whatever other evidence has been submitted on the issue.
GTE South Inc. v. Morrison, 957 F.Supp. 800, 803
(E.D. Va. 1997). A party moving for dismissal for lack of
subject matter jurisdiction should prevail only if material
jurisdictional facts are not in dispute and the moving party
is entitled to prevail as matter of law. Richmond,
Fredericksburg & Potomac R.R. Co., 945 F.2d at 768.
12(b)(6) provides for dismissal of actions that fail to state
a claim upon which relief can be granted. See
Fed.R.Civ.P. 12(b)(6). The Supreme Court has stated that in
order " [t]o 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, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007) (internal quotations omitted)). Specifically,
" [a] claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678. Moreover, at
the motion to dismiss stage, the Court is bound to accept all
of the factual allegations in the Complaint as true.
Id. at 678. However, " [t]hreadbare recitals of
the elements of a cause of action, ...