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Sierra Club v. Virginia Electric & Power Co.

United States District Court, E.D. Virginia, Norfolk Division

November 6, 2015

SIERRA CLUB, Plaintiff,

Page 602

          For Sierra Club, Plaintiff: Deborah M. Murray, Gregory Doran Buppert, LEAD ATTORNEYS, William Choice Cleveland, IV, Charlottesville, VA.

         For Virginia Electric and Power Company, doing business as Dominion Virginia Power, Defendant: Dabney Jefferson Carr, IV, LEAD ATTORNEY, Troutman Sanders LLP (Richmond), Richmond, VA.

Page 603


         Raymond A. Jackson, United States District Judge.

         Before 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.


         The 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.

         Plaintiff 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.

         Plaintiffs 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

Page 604

Violations of Dominion's VPDES Permit, but Count Three pertains to Discharge of Deleterious Substances into State Waters.

         Plaintiff 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.

         On 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.


         Defendant's 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.

         Rule 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, ...

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