United States District Court, W.D. Virginia, Danville Division
K. Moon Judge.
Duke Energy Progress LLC (“Duke Energy”) has
brought a suit seeking declaratory judgment on a number of
issues related to the compliance of one of its power
generating stations, the Roxboro Steam Electric Station
(“Roxboro Station”), with the Clean Water Act.
Duke Energy brings suit against the Roanoke River Basin
Association (“RRBA”), which had sent Duke a
Notice of Intent to Sue pursuant to 33 U.S.C. § 1365,
alleging various Clean Water Act violations at the Roxboro
Station. Defendant RRBA has moved to dismiss Duke
Energy's complaint on the grounds that: (1) the Court
lacks subject matter jurisdiction, (2) the suit has been
brought in the wrong forum, and (3) the Court should exercise
its discretion under the Declaratory Judgment Act to decline
to hear this suit.
Court holds that subject matter jurisdiction exists for
Plaintiff Duke Energy's claims because RRBA, the
declaratory defendant, could have affirmatively asserted such
claims in federal court under the Clean Water Act. However,
the statutory section under which this controversy arises, 33
U.S.C. § 1365, only permits suit in the venue in which
the alleged violations are occurring - in this case, the
Middle District of North Carolina where the Roxboro Station
is located. Thus, venue is improper in the Western District
of Virginia and the Court will dismiss the suit pursuant to
28 U.S.C. § 1406. Additionally, Duke Energy is
impermissibly using the Declaratory Judgment Act, 28 U.S.C.
§§ 2201-02, to engage in forum shopping and skirt
the explicit terms of the Clean Water Act. Under the
Court's discretionary authority to not grant declaratory
relief, the Court would thus dismiss Duke Energy's
claims, even if they were otherwise procedurally proper.
Clean Water Act, 33 U.S.C. § 1251 et seq.
(“CWA”), regulates the discharge of pollutants
into waters of the United States. Citizens may bring suit
against parties alleged to be in violation of the CWA. 33
U.S.C. § 1365. Citizen-plaintiffs must give notice of
the alleged violation to the potential defendant and
government regulators sixty days prior to initiating such a
“citizen suit.” 33 U.S.C. § 1365(b)(1)(A).
Citizen suits may only be brought in the district in which
the violation is alleged to be occurring. 33 U.S.C. §
first action related to this suit occurred when RRBA
successfully intervened in a state enforcement case regarding
violations at the Roxboro Station. (See dkts. 1-6,
1-7). On February 13, 2017, RRBA's motion for summary
judgment in that state case was denied. (Dkt. 19-9). RRBA
then issued a Notice of Intent to Sue (the
“Notice”) under 33 U.S.C. § 1365 on March
13, 2017, which would have permitted it to bring suit in
federal court for violations of the CWA after sixty days.
(Dkt. 1-1). On March 21, 2017, the North Carolina court
adjudicating the state enforcement case issued a stay on
litigation activities until April 27, 2017. (Dkt. 19-10).
Duke Energy filed the present suit on May 11, 2016 - two days
before RRBA could have filed a federal suit under § 1365
- seeking declaratory judgment on issues related to
RRBA's Notice. On May 16, 2017, RRBA filed a CWA citizen
suit pursuant to the Notice in the Middle District of North
Carolina. (Dkt. 19-12).
alleges that Duke Energy is engaging in forum shopping
because the Middle District of North Carolina, where the
Roxboro Station is located, had made several rulings
unfavorable to Duke Energy in cases closely related to the
present one. In Roanoke River Basin Ass'n v. Duke
Energy Progress, LLC, No. 1:16-cv-07 (M.D. N.C. Apr. 26,
2017) the court dismissed some, but not all, of the
RRBA's claims against Duke Energy under a “diligent
prosecution” theory, which is the same as Duke
Energy's Count 8 here. (Dkt. 15-1). This case involved
allegations similar to the ones here involving the Mayo
Station - a coal generating station located only a few miles
from the Roxboro Station. In Yadkin Riverkeeper, Inc. v.
Duke Energy Carolinas, LLC, 141 F.Supp.3d 428, 434 (M.D.
N.C. 2015), motion to certify appeal denied, No.
1:14-CV-753, 2016 WL 6783918 (M.D. N.C. Jan. 29, 2016), the
Middle District of North Carolina denied a motion to dismiss
by Duke Energy in a case involving a different coal plant
that contained many of the same issues addressed here.
Eventually, the case was settled with Duke Energy agreeing to
remove coal ash from its existing basins - the same relief
sought by RRBA in its recent lawsuit related to the Roxboro
Station. (Dkts. 15-2; 19-12 at 11).
Duke Energy operates the Roxboro Station, a coal-fired power
plant on a 600-acre site in Person County, North Carolina.
(Dkt. 1 at 4). The Roxboro Station produces various
wastewaters which are treated before being permitted to enter
waters of the United States, pursuant to the CWA.
(Id. at 7). The Roxboro Plant impounds its
wastewater in a series of lagoons and causeways on the
property. (See dkt. 1). Ultimately, treated water
from these wastewater impoundments flows into Hyco Reservoir
through a point source permitted under the CWA. (Id.
at 22). In its Notice of Intent to Sue, RRBA alleged the
following violations occurring at the Roxboro Station: (1)
that certain lagoons and canals of the Roxboro wastewater
system were waters of the United States themselves, thus
making discharges of wastewater into them unpermitted
discharges under the CWA; (2) that Duke Energy is in
violation of its National Pollutant Discharge Elimination
System (“NPDES”) permit by failing to prevent
removed substance pollutants from its wastewaters from
entering waters of the United States; and (3) that Duke
Energy was making unpermitted discharges into waters of the
United States via groundwater hydrological connections.
(Id. at 27-29).
Standards of Review
brings a facial challenge to the Court's subject matter
jurisdiction over this suit under Federal Rule of Civil
Procedure 12(b)(6). A facial challenge is one which argues
that “the complaint simply fails to allege facts upon
which subject matter jurisdiction can be based.”
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
For facial challenges, “all the facts alleged in the
complaint are assumed to be true and the plaintiff, in
effect, is afforded the same procedural protection as he
would receive under a Rule 12(b)(6) consideration.”
venue challenge is governed by Federal Rule of Civil
Procedure 12(b)(3). Under Rule 12(b)(3), “the plaintiff
bears the burden of establishing that venue is proper.”
Jones v. Koons Automotive, Inc., 752 F.Supp.2d 670,
679 (D. Md. 2010). In deciding the motion, “all
inferences must be drawn in favor of the plaintiff, and the
facts must be viewed as the plaintiff most strongly can plead
them. Id. at 680 (internal quotation marks omitted).
evaluating a Rule 12(b)(6) motion to dismiss for failure to
state a claim, the Court must accept as true all well-pleaded
allegations. See Vitol, S.A. v. Primerose Shipping
Co., 708 F.3d 527, 539 (4th Cir. 2013); see also
Erickson v. Pardus, 551 U.S. 89, 94 (2007). “While
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff's
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.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations and quotation marks
omitted). Stated differently, in order to survive a motion to
dismiss, “a complaint must ...