IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`
`
`CENTER FOR BIOLOGICAL
`DIVERSITY and SIERRA CLUB,
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`
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`v.
`
`UNIVERSITY OF NORTH
`CAROLINA AT CHAPEL HILL,
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`
`
`Plaintiffs,
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`Defendant.
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`Case No. 1:19-cv-1179-CCE-JLW
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`PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S
`MOTION TO DISMISS
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 1 of 33
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`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`
`
`CENTER FOR BIOLOGICAL
`DIVERSITY and SIERRA CLUB,
`
`
`
`v.
`
`UNIVERSITY OF NORTH
`CAROLINA AT CHAPEL HILL,
`
`
`
`
`
`
`
`
`
`
`
`
`Plaintiffs,
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`Defendant.
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`
`
`
`
`
`Case No. 1:19-cv-1179-CCE-JLW
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`PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S
`MOTION TO DISMISS
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 1 of 33
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`
`
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES …………………….………………………………………..i
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`GLOSSARY OF ACRONYMS …………………….……………………………………v
`
`INTRODUCTION …………………….………………………………………………….1
`
`FACTUAL BACKGROUND …………………….………………………………………1
`
`LEGAL BACKGROUND …………………….………………………………………….3
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`A. Standard of Review …………………….……………………………………...3
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`B. Pleading Requirement for Repeated Violations …………………….…………5
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`C. Clean Air Act …………………….……………………………………………7
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`ARGUMENT …………………….……………………………………………………….7
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`A. Claim I …………………….…………………………………………………...7
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`B. Claim II …………………….………………………………………………...12
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`C. Claim III …………………….………………………………………………..14
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`D. Claim IV …………………….………………………………………………..17
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`E. Claim V …………………….………………………………………………...18
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`F. Claim VI …………………….………………………………………………..19
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`G. Claim VII …………………….……………………………………………….20
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`H. Claim VIII …………………….……………………………………………...21
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`I. Claim IX …………………….………………………………………………..22
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`J. Claim X …………………….………………………………………………...23
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`CONCLUSION …………………….……………………………………………………23
`
`i
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 2 of 33
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`
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`CERTIFICATION OF WORD COUNT …………………….………………………….25
`CERTIFICATION OF WORD COUNT ........................................................ 25
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`CERTIFICATE OF SERVICE …………………….……………………………………26
`CERTIFICATE OF SERVICE ................................................................... 26
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`
`
`ii
`ii
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`Case 1:19-cv-01179—CCE-JLW Document 23 Filed 08/13/20 Page 3 of 33
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`
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009)………………………………………………4, 12, 13, 18, 21
`
`Baughman v. Bradford Coal Co., Inc.,
`592 F.2d 215 (3d Cir. 1979)……………………………………………………...17
`
`Colorado River Water Conservation District v. U.S.,
`424 U.S. 800, 817-818 (1976)….………………………………………………...15
`
`Env’t Tex. Citizen Lobby v. Exxonmobil Corp.,
`2020 U.S. App. LEXIS 24100, (5th Cir. Jul. 29, 2020)……………………………6
`
`Estate Constr. Co. v. Miller & Smith Holding Co.,
`14 F.3d 213 (4th Cir. 1994)………………………………………………17, 18, 20
`
`
`Evans v. B.F. Perkins Co.,
`166 F.3d 642 (4th Cir. 1999)………………………………………………………4
`
`Fried v. Sungard Recovery Servs., Inc.,
`916 F. Supp. 465 (E.D. Pa. 1996)………………………………………………6, 7
`
`
`Grey v. Henderson,
`169 F. Supp. 2d 448 (M.D.N.C. 2001)…………………………………………….3
`
`Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,
`484 U.S. 49 (1987)………………………………………………………………4–6
`
`
`Heckler v. Chaney,
`470 U.S. 821 (1985)………………………………………………………………16
`
`
`N.C. Motorcoach Ass’n v. Guilford County Bd. of Educ.,
`315 F. Supp. 2d 784, (M.D.N.C. 2004)……………………………………………4
`
`New York v. Am. Elec. Power Serv. Corp.,
`2006 WL 1331543, (S.D. Ohio Mar. 21, 2006)……………………………………7
`
`
`Ohio Valley Envtl. Coal. v. Fola Coal Co., LLC,
`845 F.3d 133, 139 (4th Cir. 2017)…………………………………………………9
`
`iii
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 4 of 33
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`
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`Paper, Allied-Indus., Chem. & Energy Workers Int’l Union,
`2005 WL 1389431 (W.D. Okla. June 10, 2005)…………………………………..7
`
`
`Piney Run Pres. Ass’n v. Cty. Comm’rs,
`268 F.3d 255, 269 (4th Cir. 2001)) ………………………………………………..9
`
`
`PIRG v. Star Enterprise,
`771 F. Supp. 655 (D. N.J. 1991)………………………………………………….19
`
`
`Roosevelt Campobello Intern. Park Comm’n. v. U.S. E.P.A.,
`711 F.2d 431 (1st Cir. 1983)……………………………………………………….5
`
`
`Texans United for a Safe Econ. Educ. Fund v. Crown Cent. Petroleum Corp.,
`207 F.3d 789 (5th Cir. 2000)……………………………………………………..14
`
`
`Tucker v. Chrysler Credit Corp.,
`149 F.3d 1170 (Table), 1998 U.S. App. LEXIS 10803 (4th Cir. 1998)……….…13
`
`
`United States v. Am. Elec. Power Serv. Corp.,
`137 F. Supp. 2d 1060 (S.D. Ohio 2001)…………………………………………...7
`
`
`United States v. Am. Trucking Ass’ns,
`310 U.S. 534 (1940)………………………………………………………………10
`
`
`WildEarth Guardians v. Lamar Utils. Bd.,
`2012 U.S. Dist. LEXIS 43307 (D. Colo. 2012)…………………………………..14
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`
`
`STATUTES
`
`42 U.S.C. § 7401(b)(2) ……………………………………………………………….7, 10
`
`42 U.S.C. § 7410 ………………………………………………………………………….7
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`42 U.S.C. § 7604(a) ……………………………………………………………1, 6, 13, 21
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`42 U.S.C. §7604(b)(1)(B) …………………………………………………………...14, 15
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`42 U.S.C. § 7604(f)(4) …………………………………………………………………..22
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`42 U.S.C. § 7661 ………………………………………………………………………….7
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`5 U.S.C. § 552 …………………………………………………………………………….2
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`iv
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 5 of 33
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`N.C.Gen. Stat. § 132-1 et. seq. ………………………………………………………........2
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`N.C. Gen. Stat. §143-215.114 …………………………………………………………...15
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`
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`REGULATIONS
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`40 C.F.R. § 70.2(1) ……………………………………………………………………….7
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`40 C.F.R. § 70.6(b)(1) …………………………………………………………………..21
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`40 C.F.R. Part 60, Appendix F, Quality Assurance Procedure 1 …………………….….22
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`15A NCAC 02D.0501(c) ……………………………………………………………13, 23
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`15A NCAC 02D.0515…………………………………………………………………....19
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`15A NCAC 02D.0524………..………………………………………………….……….22
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`
`
`OTHER FEDERAL AUTHORITIES
`
`Fed. R. Civ. P. 12(b)(1) …………………………………………………………….……4
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`Fed. R. Civ. P. 12(b)(6) ………………………………………………………………..3, 4
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`Fed. R. Civ. P. 56(b) ……………………………………………………………….……20
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`136 Cong. Rec. S16,953 (daily ed., Oct. 27, 1990) ……………………………..…6, 8, 13
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`
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`v
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 6 of 33
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`
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`GLOSSARY OF ACRONYMS
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`CAA
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`Clean Air Act
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`DAQ
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`North Carolina Division of Air Quality
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`DEQ
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`North Carolina Department of Environmental Quality
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`EPA
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`United States Environmental Protection Agency
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`FOIA
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`Freedom of Information Act
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`NAAQS
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`National Ambient Air Quality Standards
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`UNC
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`University of North Carolina at Chapel Hill
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`vi
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`
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`INTRODUCTION
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`Plaintiffs Center for Biological Diversity (“Center”) and Sierra Club (collectively,
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`“Conservation Groups”) brought this action pursuant to the citizen suit provision of the
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`Clean Air Act, (hereinafter, “CAA” or the “Act”), 42 U.S.C. § 7604, alleging repeated
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`violations of the Act at Defendant University of North Carolina Chapel Hill’s (“UNC”)
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`facilities that operate pursuant to a permit issued under Title V of the Act (“Permit”).
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`Dkt. #1, ¶1.1 Conservation Groups’ claims are based upon compliance and permitting
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`records provided in response to public records requests and upon reasonable inferences
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`drawn from UNC’s failure to produce various records.
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`While styled as a motion to dismiss, Defendant in essence is asking this Court to
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`render a decision on the merits before the parties have completed discovery. Defendant
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`ignores the well-established rule that courts accept as true plaintiffs’ allegations and draw
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`all reasonable inferences in plaintiffs’ favor at the motion to dismiss stage and asks the
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`Court to rule on the sufficiency of the evidence before Defendant has responded to any
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`discovery requests. This is improper. Accordingly, and for the further reasons set forth
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`below, Defendant’s Motion to Dismiss should be denied.
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`FACTUAL BACKGROUND
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`This litigation was filed subsequent to two years of painstaking factual
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`investigation by the Center. During this time, the Center filed twenty-five requests for
`
`
`1 Conservation Groups subsequently filed their First Amended Complaint on July 6,
`2020, alleging an additional CAA violation as a result of an admission of such made by
`UNC in the course of litigation correspondence. Dkt. #17, ¶¶60-62.
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`1
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 8 of 33
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`
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`compliance and permit records regarding UNC’s Title V facilities with UNC, the North
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`Carolina Department of Environmental Quality (“DEQ”), and the United States
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`Environmental Protection Agency (“EPA”), pursuant to the North Carolina Public
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`Records Act, N.C. Gen. Stat. § 132-1 et. seq., and the Freedom of Information Act, 5
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`U.S.C. § 552, as amended (“FOIA”).
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`Among other things, the Center’s Public Records Act and FOIA requests sought
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`compliance documents that are required, pursuant UNC’s Title V permit, to be
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`maintained and submitted regularly to state and federal regulatory authorities by UNC.
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`In numerous instances, the Center was stymied in obtaining the requested records
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`because UNC never produced them. The Center continued to make good faith efforts to
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`obtain these records, negotiating with UNC in search of a compromise, revising records
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`requests to narrow their scope, and in some cases filing multiple requests for the same
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`records.
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`Ultimately, the Center was unsuccessful in obtaining a panoply of requested,
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`mandatory compliance records from UNC. Requests to DEQ for the same records were
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`similarly unsuccessful. Having exhausted its options for obtaining these records after
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`two years of diligent searching, the Center concluded that the requested records were
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`either never generated or never submitted to regulatory authorities. In some instances,
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`the Center did obtain requested compliance records from UNC and DEQ, but those
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`records did not demonstrate that all mandatory compliance activities had taken place.
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`2
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`
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`The absence of the requested mandatory compliance records in UNC and DEQ’s
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`Public Records Act responses ultimately formed the basis, at least in part, for most of
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`Conservation Groups’ claims. In other instances, produced records which failed to
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`demonstrate UNC’s compliance with mandatory monitoring and reporting activities
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`formed the basis, at least in part, for Conservation Groups’ claims. On the whole, these
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`missing or incomplete records formed the basis for at least part of the allegations in
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`Claims I through VI, and VIII.
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`Furthermore, regarding Claim IX, UNC has admitted to a repeated, post-complaint
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`violation of the relevant permit conditions in its Quarterly Emissions Report for the first
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`quarter of 2020.2 UNC’s admission demonstrates that Claim IX’s allegation of repeated
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`violations was not only reasonably inferred and made in good faith, but was factually
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`accurate. This revelation demonstrates why all of Conservation Groups’ allegations of
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`repeated violations should survive the motion to dismiss stage and proceed to discovery.
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`LEGAL BACKGROUND
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`A. Standard of Review
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`UNC has a high burden to overcome in a Rule 12(b)(6) motion to dismiss. The
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`court is required to accept as true all allegations of the plaintiffs and draw all reasonable
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`inferences in plaintiffs’ favor. See, e.g., Grey v. Henderson, 169 F. Supp. 2d 448, 450
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`(M.D.N.C. 2001) (citing Martin Marietta Corp. v. Int’l Telecommunications Satellite
`
`
`2 Conservation Groups will have to provide a new notice of intent to sue letter before
`adding this second calibration drift assessment claim to the case.
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`3
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 10 of 33
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`
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`Org., 978 F.2d 140, 142 (4th Cir. 1992)). The law requires that a motion to dismiss for
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`failure to state a claim should not be granted if the claim for relief is plausible on its face.
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
`
`U.S. 544, 570 (2007)). Thus, to prevail, Defendant must prove that the Complaint pleads
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`no facts allowing the court “to draw the reasonable inference that the defendant is liable
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`for the misconduct alleged.” Id.
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`Defendant also faces a high burden in order to prevail on a Rule 12(b)(1) motion,
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`which may only be granted “if the material jurisdictional facts are not in dispute and the
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`moving party is entitled to prevail as a matter of law.” Evans v. B.F. Perkins Co., 166
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`F.3d 642, 647 (4th Cir. 1999) (quoting Richmond, Fredericksburg & Potomac R. Co. v.
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`United States, 945 F.2d 765, 768 (4th Cir. 1991)). Although the burden of proof of
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`jurisdiction rests with plaintiffs, for a motion under Rule 12(b)(1), a court must accept
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`plaintiffs’ factual allegations as true and draw all reasonable inferences from those
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`allegations in plaintiffs’ favor. N.C. Motorcoach Ass’n v. Guilford County Bd. of Educ.,
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`315 F. Supp. 2d 784, 790 (M.D.N.C. 2004) (citing Adams v. Bain, 697 F.2d 1213, 1219
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`(4th Cir. 1982)). As with a 12(b)(6) motion, plaintiffs’ only burden is to properly plead
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`their claims; they need not show the likelihood of prevailing.
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`The Supreme Court has ruled that in the context of Clean Water Act claims, good
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`faith allegations of cognizable violations by plaintiffs are sufficient to sustain claims past
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`the motion to dismiss phase of litigation: Ҥ 505 [of the Clean Water Act] confers
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`jurisdiction over citizen suits when the citizen-plaintiffs make a good-faith allegation of
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`4
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 11 of 33
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`
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`continuous or intermittent violation . . . .” Gwaltney of Smithfield v. Chesapeake Bay
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`Found., 484 U.S. 49, 64 (1987). The Supreme Court directed defendants wishing to
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`challenge jurisdictional allegations to do so in a motion for summary judgment,
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`explaining that plaintiffs need not offer “proof as a threshold matter in order to invoke the
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`District Court’s jurisdiction.” Id. at 66. The Supreme Court’s reasoning was based in
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`part on the “‘the practical difficulties of detecting and proving chronic episodic violations
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`of environmental standards.’” Id. at 65. In other words, the Supreme Court recognized
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`that discovery available under the Federal Rules of Civil Procedure is necessary to enable
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`plaintiffs to prove a continuing violation.
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`While the Gwaltney Court analyzed claims brought under the Clean Water Act, its
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`holdings are applicable to citizen suit claims brought under the CAA unless the plain
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`language differs between the two. Roosevelt Campobello Intern. Park Comm’n. v. U.S.
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`E.P.A., 711 F.2d 431, 437 (1st Cir. 1983) (“[I]n addition to similar statutory language, the
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`1972 Senate report on the Clean Water Act explicitly states that the citizen suit provision
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`of [the Clean Water Act] was ‘modeled on the provision enacted in the Clean Air Act.’”)
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`(citing S. Rep. No. 92-414, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. &
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`Ad. News 3668, 3745)).
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`B. Pleading Requirement for Repeated Violations
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`UNC deploys multiple contradictory pleading standards for citizen suit
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`enforcement actions in its Motion to Dismiss, sometimes suggesting that the CAA
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`requires that violations must be ongoing, and at other times acknowledging that
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`5
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 12 of 33
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`
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`violations must simply be repeated. See, e.g., Dkt. #20 at 4-6. However, the Senate
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`managers of the final version of the CAA stated: “[i]t is the intention of the conferees that
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`citizens should be allowed to seek civil penalties against violators of the Act whenever
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`two or more violations have occurred in the past.” 136 Cong. Rec. S16,953 (daily ed.,
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`Oct. 27, 1990) (emphasis added).
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`Moreover, federal courts have repeatedly found that the 1990 amendments to the
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`CAA overruled Gwaltney’s requirement for ongoing violations. Most recently, the Court
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`of Appeals for the Fifth Circuit held that only alleging repeated violations is required to
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`state a claim, and repeated means at least two violations:
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`The [Clean Air] Act provides a cause of action—that is, a claim—only for
`repeated violations of a particular emission standard. 42 U.S.C. § 7604(a)(1);
`Env’t Tex., 824 F.3d at 518–19. That means a plaintiff must assert at least
`two violations of the same standard in order to allege a claim.
`
`Env’t Tex. Citizen Lobby v. Exxonmobil Corp., No. 17-20545, 2020 U.S. App. LEXIS
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`24100, at *8-9 (5th Cir. Jul. 29, 2020).
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`A long line of federal court rulings has explicitly held that the CAA’s 1990
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`amendments overruled the Gwaltney pleading requirement for ongoing violations with
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`regards to CAA citizen suits:
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`A plain reading of the CAA as amended, however, indicates that the 1990
`Amendments overruled Gwaltney with respect to wholly past violations. The
`CAA, therefore, permits citizen suits for both continuing violations and
`wholly past violations, so long as the past violation occurred more than once.
`This interpretation has been accepted by several courts . . .
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`6
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 13 of 33
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`
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`Fried v. Sungard Recovery Servs., Inc., 916 F. Supp. 465, 467–68 (E.D. Pa. 1996)
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`(emphasis added). See also, e.g., United States v. Am. Elec. Power Serv. Corp., 137 F.
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`Supp. 2d 1060, 1066 (S.D. Ohio 2001) (citing Fried approvingly); Paper, Allied-Indus.,
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`Chem. & Energy Workers Int’l Union, No. CIV-04-438-F, 2005 WL 1389431, at *15–16
`
`(W.D. Okla. June 10, 2005) (same); New York v. Am. Elec. Power Serv. Corp., No. 2:04
`
`CV 1098, 2006 WL 1331543, at *3 (S.D. Ohio Mar. 21, 2006) (same).
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`C. Clean Air Act
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`The core purpose of the Clean Air Act is “to protect and enhance the quality of the
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`Nation’s air resources so as to promote the public health and welfare.” 42 U.S.C.
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`§ 7401(b)(2). Consistent with this goal, the Act requires EPA to establish health-based
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`national ambient air quality standards (“NAAQS”) for certain pollutants. State air quality
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`agencies that are delegated implementation authority under the Clean Air Act must
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`develop and implement plans that include “applicable requirements,” 40 C.F.R. § 70.2(1),
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`the compliance with which advances maintenance and attainment of the NAAQS and
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`other standards. These applicable requirements are executed with respect to individual
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`facilities through permitting programs established under Title V of the Act. See 42
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`U.S.C. §§ 7410, 7661.
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`
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`[Remainder of page left intentionally blank]
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`7
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`
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`ARGUMENT
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`A. Claim I
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`In Claim I, Conservation Groups allege that Section 2.1.A of UNC’s Title V
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`permit “establishes a limit of 323.17 million British Thermal Units per hour
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`(“mmBtu/hr”) heat input capacity for each of UNC’s two coal/natural gas/No. 2 fuel
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`oil/wood fired circulating fluidized combustion boilers” Dkt. #17 at ¶34 (emphasis
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`added). “Heat input is a measure of the amount of coal which is burned. The more coal
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`that is burned, the more pollution emitted, all else being equal.” Id.
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`Conservation Groups go on to allege that UNC repeatedly violated this limit and
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`will continue to do so. Conservation Groups identify two specific instances, on
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`December 17, 2014 and December 18, 2014, where UNC operated the relevant boilers
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`above the 323.17 million Btu per hour limit. Id. at ¶35-36. Those two violations
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`constitute “repeated” violations under the citizen suit provision. 136 Cong. Rec. S16,953
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`(daily ed., Oct. 27, 1990); Fried, 916 F. Supp. at 467–68. Conservation Groups also
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`allege that “UNC has repeatedly exceeded the 323.17 mmBtu/hr limit for Boilers 6 and 7
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`on numerous other occasions since 2014 in violation of Section 2.1.A of UNC’s air
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`pollution permit and will continue to do so.” Id. at ¶38.3
`
`
`3 UNC’s assertion that the “Complaint does not allege any ongoing violations of the Act
`or the Permit,” Dkt. #20 at 4, is not accurate. UNC inserted a period and deleted “and
`will continue to do so.” out of its quote of paragraph 38 of the First Amended Complaint.
`Dkt. #20 at 8-9.
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`8
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 15 of 33
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`
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`Defendant has not questioned that Conservation Groups’ allegations of repeated
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`violations of a limit in UNC’s Title V permit were made in good faith or pointed to any
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`reason to question the facial plausibility of these allegations. Therefore, Conservation
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`Groups have alleged a claim for which relief can be granted. See section B, above (two
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`violations constitute repeated violations under the citizen suit provision).
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`Defendant also urges the Court not accept as true Conservation Groups’ allegation
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`that Title V permit establishes a heat input limit of 323.17 million Btu per hour. Dkt. #20
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`at 9. To get around the requirement that the Court must accept the allegations in the
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`complaint as true, UNC attaches its Title V permit. Dkt. #20-1, Ex. 1. However, UNC’s
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`argument ignores the plain language of its Title V permit and would cause an absurd
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`result, which would endanger the health and very lives of the people exposed to UNC’s
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`pollution.
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`As with statutory interpretation, the plain language of permits to pollute is
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`important. See e.g., Ohio Valley Envtl. Coal. v. Fola Coal Co., LLC, 845 F.3d 133, 139
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`(4th Cir. 2017) (quoting Piney Run Pres. Ass’n v. Cty. Comm’rs, 268 F.3d 255, 269 (4th
`
`Cir. 2001)). UNC claims that the 323.17 million Btu per hour in Condition 2.1.A
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`“describes the emission sources subject to that section.” Dkt. #20 at 8. But Condition
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`2.1.A is not labeled as a description. Rather, Section 1 of the Permit, which Conservation
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`Groups do not rely upon, contains a provision which is explicitly labeled “Emission
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`Source Description.” Dkt. #20-1, Ex. 1 at Page 3. In that section, Boilers 6 and 7, which
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`9
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 16 of 33
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`
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`are at issue in this claim, are assigned the identifiers ES-001 and ES-002 so that there can
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`be no confusion about what sources are being referred to in the rest of the permit.
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`Section 2, however, is entitled “Specific Limitations and Conditions.” Id. at 10.
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`Section 2.1 states the emission sources listed below are “subject to the following specific
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`terms, conditions and limitations.” Id. The following subsection, 2.1.A, contains the
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`323.17 million Btu per hour heat input limit that applies to ES-001 and ES-002. Id.
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`There is no need to identify ES-001 and ES-002 by the 323.17 million Btu per hour heat
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`input in Section 2.1.A because these units have their identifiers of ES-001 and ES-002.
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`Moreover, holding the 323.17 million Btu per hour heat input value is not an
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`enforceable limit would lead to an absurd result. See generally United States v. Am.
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`Trucking Ass’ns, 310 U.S. 534, 543 (1940) (courts interpret statutes to avoid absurd
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`results). A simplified example and then specific examples follow to demonstrate that not
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`having an enforced heat input limit is absurd.
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`There are three units of measurement relevant to this analysis: (1) an emission rate
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`expressed in pounds of pollution per million Btu of heat input, (2) the heat input
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`expressed million Btu per hour, (3) and another emission rate, this one expressed in
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`pounds of pollution per hour. The first multiplied by the second equals the third. The
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`third, pounds of pollution per hour, is the meaningful metric for environmental protection
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`because it reflects what is leaving the smoke stack and entering the air people breathe.
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`Most of the emission limits in UNC’s Title V permit for ES-001 and ES-002 are
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`written as pounds of pollution per million Btu. See e.g. Dkt. #20-1 at Page 10 (listing
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`10
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 17 of 33
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`
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`limits for particulate matter and sulfur dioxide). However, emission limits in pounds of
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`pollution per million Btu heat input, by themselves, do nothing to ensure the Clean Air
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`Act’s purpose of protecting air quality. 42 U.S.C. § 7401(b)(2).
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`Indeed, a source can consistently comply with a limit on its pounds of pollution
`
`per million Btu heat input and still greatly increase its actual pollution leaving its
`
`smokestack. For example, a source with a one-pound-of-sulfur-dioxide per million Btu
`
`heat input limit that operates at one million Btu heat input will have emissions of one
`
`pound per hour. This is because pounds per million Btu times million Btu gives us the
`
`actual emissions in pounds per hour. However, if the source increases its heat input to
`
`two million Btu per hour, the source’s emissions would double to two pounds per hour
`
`while still meeting the one-pound-of-sulfur-dioxide / million Btu heat input limit. See
`
`Dkt. #17 at ¶34 (“The more coal that is burned, the more pollution emitted, all else being
`
`equal.”). It is the emissions in mass, that is, pounds per hour, which determines how
`
`much pollution is in the air we breathe. Only when a pound-per-heat input limit is
`
`coupled with a limit on the heat input itself can the amount of pollution from a source be
`
`controlled in a way that protects public health and the environment. In other words, UNC
`
`must control its heat input by limiting how much coal it burns per hour in order to
`
`meaningful control the amount of pollution it emits.
`
`A reasonable inference that Conservation Groups are entitled to at this stage, and
`
`which they will prove at the summary judgment or trial stage, is that UNC relies on the
`
`fact they then will not exceed the 323.17 million Btu rate when attempting to demonstrate
`
`11
`
`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 18 of 33
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`
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`that emissions from ES-001 and ES-002 will not cause unacceptable levels of pollution in
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`the ambient air. For example, on May 18, 2020, UNC submitted a “Revised Toxic Air
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`Pollutant Air Dispersion Modeling Analysis” to DEQ, to demonstrate that its emissions
`
`do not cause unacceptable levels of toxic air pollutants in the ambient air. The analysis
`
`used a computer model to predict ambient levels of pollutants. One of the inputs to the
`
`model is the emission rate of such pollutants. But that emission rate input into the model
`
`is the mass of the emissions, i.e. pounds per hour. In order to determine that pounds per
`
`hour emission rate, UNC multiplied the 323.17 million Btu per hour heat input by the
`
`pounds per million Btu emission rate to get the pounds per hour emission rate to plug into
`
`the modeling. But if the 323.17 million Btu heat input is not an enforceable limit, in
`
`reality UNC could emit more Toxic Air Pollutants than it input into the model. This
`
`would render the modeling demonstration invalid and could result in ambient pollution
`
`levels above the levels regulators have deemed acceptable.
`
`UNC has had to submit numerous such air dispersion modelling analyses of its
`
`emission impacts to ambient pollution levels over the years. Almost all of them assume
`
`that ES-001 and ES-002 do not ever operate above 323.17 million Btu per hour. If the
`
`323.17 million Btu per hour heat input is not an enforceable limit, all of these attempts to
`
`demonstrate that UNC is not causing ambient pollution above the acceptable level are
`
`bogus and the public is endangered.
`
`12
`
`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 19 of 33
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`
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`Conservation Groups have a pending discovery request for all of UNC’s hourly
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`heat input data. After Conservation Groups obtain this discovery, summary judgment or
`
`trial would be proper vehicles to resolve this issue.
`
`B. Claim II
`
`UNC first argues that Claim II’s allegation of repeated record-keeping violations
`
`falls short because Conservation Groups did not specify whether UNC’s record-keeping
`
`failures were “absolute,” intermittent, or ongoing at the time of filing. Dkt. #20 at 12.
`
`UNC seems to argue that Iqbal implicitly overruled Gwaltney’s holding that a citizen suit
`
`complaint need only make “good-faith allegation.” Gwaltney, 484 U.S. at 64. Under the
`
`current configuration of the Clean Air Act’s citizen suit provision, these good-faith
`
`allegations can be of past violations so long as they are repeated. 42 U.S.C. 7604(a)(1).
`
`As described in detail above, repeated means more than one violation. See, e.g., Fried,
`
`916 F. Supp. at 467–68; 136 Cong. Rec. S16,953 (daily ed., Oct. 27, 1990).
`
`Here, Conservation Groups pled repeated violations of 15A NCAC 02D.0501(c)
`
`and permit condition 2.2.A.1. Dkt. #17, ¶¶1, 40, 41. Because readiness testing of
`
`emergency generators could be conducted on any day, permit condition 2.2.A.1’s
`
`mandate to maintain the required operational records is in effect on each day. As such,
`
`each day that UNC failed to maintain the required operational records is a separate,
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`cognizable violation.
`
`UNC next argues that allegations supporting Claim II are not specific enough.
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`Dkt. #20 at 13. However, Ashcroft v. Iqbal simply requires that a claim is “plausible on
`
`13
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 20 of 33
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`
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`its face” and pleads sufficient factual allegations that, construed in the light most
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`favorable to the plaintiffs, allow the court to “draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” 556 U.S. 662, 678 (2009) (citing Bell
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`Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Tucker v. Chrysler Cred. Corp.,
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`149 F.3d 1170 (Table), 1998 U.S. App. LEXIS 10803, at *5 (4th Cir. 1998). Much more
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`than a “formulaic recitation” of the elements of a claim without further factual
`
`enhancement, Conservation Groups pled that UNC has admitted multiple failures to
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`maintain the required records for the diesel-fired generator at Kenan Stadium (emission
`
`source ES-Gen-48). Dkt. #17, ¶41. The claim of failure is absolute.
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`The factual allegations pled in good faith are sufficient to allow the Court to reach
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`the reasonable inference that UNC is liable for the alleged repeated violations.
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`Accordingly, the Court should deny Defendant’s motion with regards to Claim II.
`
`C. Claim III
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`Defendant argues that DEQ’s issuance of a Notice of Violation (“NOV”) letter for
`
`the inspection failures alleged in Claim III bars those claims. Dkt. #20 at 14.
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`Unfortunately for Defendant, the CAA only prohibits citizen suits where a “[s]tate has
`
`commenced and is diligently prosecuting a civil action in a court of the United States or a
`
`State.” 42 U.S.C. §7604(b)(1)(B). Defendant recognizes as much, stating: “the NOV is
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`not in a court of the State of North Carolina” and characterizes it as a “prerequisite to any
`
`action in Court.” Dkt. #20 at 15. This is not true in this case. UNC states the NOV “has
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`been completely resolved”. Dkt. #20 at 7. Thus, no state court action is coming.
`
`14
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 21 of 33
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`
`
`
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`In any event, an NOV letter does not constitute a state court enforcement action,
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`and thus cannot trigger the citizen suit bar in question. 42 U.S.C. §7604(b)(1)(B); Texans
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`United for a Safe Econ. Educ. Fund v. Crown Cent. Petroleum Corp., 207 F.3d 789, 795
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`(5th Cir. 2000) (“the plain meaning of ‘court of the United States or a State’ excludes
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`administrative actions”); WildEarth Guardians v. Lamar Utils. Bd., 2012 U.S. Dist.
`
`LEXIS 43307, at *5-7 (D. Colo. 2012) (“courts interpreting this provision have uniformly
`
`held that ‘a civil action in court’ means what it says—an action in a court”).
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`Indeed, the case cited by Defendant in purported support of this argument does not
`
`hold that an agency enforcement action that is not an action in court is enough to bar a
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`CAA citizen suit. Dkt. #20 at 15 (citing Ellis v. Gallatin Steel Co., 390 F.3d 461, 475
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`(6th Cir. 2004)). In Ellis, after plaintiffs sent their citizen suit notice letter to EPA, the
`
`government commenced an enforcement action in federal court and ultimately entered
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`into a consent decree whereby defendants were subject to civil penalties, id. at 468;
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`whether or not a plaintiff could commence a citizen suit despite government diligent
`
`prosecution was not even at issue. The CAA citizen suit provision could not be clearer:
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`only the commencement and diligent prosecution of a civil action in court is enough to
`
`bar a citizen suit. 42 U.S.C. §7604(b)(1)(B). Potential commencement of a court action
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`sometime in the future is not enough. In any event, Defendant points to N.C. Gen. Stat.
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`§143-215.114, Dkt. #20 at 15, but an action under this statute would merely be a penalty
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`collection action, not a diligent prosecution of Clean Air Act violations.
`
`15
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`Case 1:19-cv-01179-CCE-JLW Document 23 Filed 08/13/20 Page 22 of 33
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`
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`
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`In a last-ditch effort to undermine Claim III, Defendant makes the radical call that
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`the Court abstain from exercising its jurisdiction pursuant to the Burford doctrine. Dkt.
`
`#20 at 16
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