DIVERSITY and SIERRA CLUB,
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`CENTER FOR BIOLOGICAL
`
`Plaintiffs,
`
`v.
`
`1:19-CV-1179
`
`UNIVERSITY OF NORTH
`
`CAROLINA AT CHAPEL HILL,
`
`Defendant.
`
`'
`
`ORDER
`
`Plaintiffs, Center for Biological Diversity and Sierra Club, assert that the
`
`defendant, the University of North Carolina at Chapel Hill, has repeatedly violated
`
`conditions of its permit issued under Title V of the Clean Air Act for the operation of air
`
`pollution sources on UNC’s campus. UNC moves to dismiss all ten of plaintiffs” claims.
`
`Because subject matter jurisdiction exists and the plaintiffs sufficiently allege repeated
`
`violation of specific permit conditions, UNC’s motion will be denied.
`
`1.
`
`Motions to Dismiss
`
`“To 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 US. 662, 678 (2009) (quoting Bell/it]. Corp. v. Twombly, 550 US. 544,
`
`570 (2007)). Legal conclusions “must be supported by factual allegations" that amount
`
`to more than “unadorned, the-defendant-unlawfully-harmed-me accusation[s].” Iqbal,
`
`556 US. at 678—79.
`
`Case 1:19-cv-01179-CCE-JLW Document 30 Filed 10/21/20 Page 1 of 7
`Case 1:19-cv-01179-CCE-JLW Document 30 Filed 10/21/20 Page 1 of 7
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`CENTER FOR BIOLOGICAL
`
`Plaintiffs,
`
`v.
`
`1:19-CV-1179
`
`UNIVERSITY OF NORTH
`
`CAROLINA AT CHAPEL HILL,
`
`Defendant.
`
`'
`
`ORDER
`
`Plaintiffs, Center for Biological Diversity and Sierra Club, assert that the
`
`defendant, the University of North Carolina at Chapel Hill, has repeatedly violated
`
`conditions of its permit issued under Title V of the Clean Air Act for the operation of air
`
`pollution sources on UNC’s campus. UNC moves to dismiss all ten of plaintiffs” claims.
`
`Because subject matter jurisdiction exists and the plaintiffs sufficiently allege repeated
`
`violation of specific permit conditions, UNC’s motion will be denied.
`
`1.
`
`Motions to Dismiss
`
`“To 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 US. 662, 678 (2009) (quoting Bell/it]. Corp. v. Twombly, 550 US. 544,
`
`570 (2007)). Legal conclusions “must be supported by factual allegations" that amount
`
`to more than “unadorned, the-defendant-unlawfully-harmed-me accusation[s].” Iqbal,
`
`556 US. at 678—79.
`
`Case 1:19-cv-01179-CCE-JLW Document 30 Filed 10/21/20 Page 1 of 7
`Case 1:19-cv-01179-CCE-JLW Document 30 Filed 10/21/20 Page 1 of 7
`
`
`
`
`
`Cou 3 generally do not consider matters beyond the complaint when ruling on a .
`Rule 12(b)( ) motion to dismiss. Am. Chiropractic Ass’n v. Trigor: Healthcare, Inc, 367
`
`F.3d 212, 2 4 (4th Cir. 2004). But a court may consider documents outside the pleadings
`
`without co
`
`erting a motion to dismiss into one for summary judgment if those
`
`documents re “integral to and explicitly relied on in the complaint” and their
`
`authenticity is unchallenged. Copeland v. Bieber, 789 F,3d 484, 490 (4th Cir. 2015)
`
`(quoting P illips v. LCIInt’l., 190 F.3d 609, 618 (4th Cir. 1999)). Here, UNC attaches a
`
`
`copy of its
`
`ir pollution permit, Doc. 20-1, which serves as the basis of plaintiffs’ various
`
`claims. Pla ntiffs have not contested the authenticity of the filed copy, and the Court will
`
`
`
`consider it
`
`ithout converting UNC’s motion to dismiss into one for summary judgment.
`
`‘
`
`II.
`
`itizen 'Suits under the Clean Air Act
`
`In 1 90, Congress amended the Clean Air Act to authorize citizen suits against
`
`any person ‘alleged to have violated (if there is evidence that the alleged violation has
`
`been repeat (1) or to be in violation of .
`
`. .an emission standard or limitation under this
`
`chapter.” 4 U.S'.C. § 7604(a)(1). An “emission standard or limitation under this
`
`chapter” in ludes “any. .
`. standard, limitation, or schedule established under any permit
`issued .
`.
`.
`der any applicable State implementation plan' approved by the [EPA]
`
`
`
`Administra r, any permitterm or condition, and any requirement to obtain a permit as a
`
`condition 0 operations.” Id. § 7604(i)(4); Nat'l ParksConservation Ass’n. v. Tenn.
`
`Valley .4th , 480 F.3d 410, 418 (6th Cir. 2007).
`
`
`
`An a tion allegingwholly past violations can be maintained so long as the plaintiff
`
`asserts at 1e st two violations of the same standard, even if the violations are not ongoing.
`
`
`
`Case 1:19-cv-01179-CCE-JLW Document 30 Filed 10/21/20 Page 2 of 7
`Cas 1:19-cv-01179-CCE-JLW Document30 Filele/Zl/ZO Page20f7
`
`
`
`
`
`See Env ’t T x. Citizen Lobby v. Exxonmobil Corp, 968 F.3d 357, 365 (5th Cir. 2020)
`
`(“[A] plaint ff must assert atw‘least two violations of the same standard in order-to allege a
`
`claim”); 33 also United States v. Am. Elec. Power 'Serv. Corp, 137 F. Supp. 2d 1060,
`
`1066 (SD.
`
`hio 2001).
`
`III.“
`
`
`
`nalysis and Disgussion
`
`The
`
`orth Carolina Division of Air Quality issued a permit to UNC pursuant to
`
`Title V of
`
`6 Clean Air Act, 42 USC § 7661c(a); 40 CFR § 70.6(a)(1). Doc. 17 at 1111 21,
`
`26. Citizen suits are authorized for violations ofthese permits under § 7604(a)(1).
`
`UNC’s air ollution permit also states in Section 3.A.5, “. .
`
`. all terms and conditions
`
`contained h rein shall be enforceable by the DAQ, the EPA, and citizens of the United
`
`States as de med in the Federal Clean Air Act." Doc. 20-1 at 5 8. To the extent that UNC
`
`contends th t any of the plaintiffs’ claims relate to permit conditions that are not
`
`“federally e forceable,” see Doc: 20 at 29, that argument is without merit.
`
`
`laim I ‘— Violation of Heat Input Limits for Boilers 6 and 7
`
`Set-cti n 2.1 ofthe permit provides “specific terms, conditions, and limitations” for
`various emi sionisources. Two such emission sources, Boiler 6 and Boiler 7, are the
`
`subjects of ection 2.1.A, which, inter alia, states that each boiler has a 323.17 million
`
`al Units (Btu) per hour heat input capacity. Doc. 20-1 at 15. Tfhe plaintiffs
`
`British The.
`
`. C violated this part ofthe permit by repeatedly running the boilers at
`
`
`assert that
`
`higher capa ity than the limit specified in the permit. Doc. .17 at 1111 35—36., 38. This
`
`states a clai
`
`upon which relief may be granted.
`
`Case 1:19-cv-01179-CCE-JLW Document 30 Filed 10/21/20 Page 3 of 7
`Case 1:19-cv-01179-CCE-JLW Document 30 Filed 10/21/20 Page 3 of 7
`
`
`
`
`
`UN . contends that the specified heat input capacity is not an actionable limit and
`
`is instead “ sed simply and solely to identify the [emission] sources subject to Section
`
`2.1.A.” Do . 20 at 10. But heat. input is explicitly used in the Section 2.1.A
`“Limits/St
`dardsi’ chart, where it is a variable in the equations that determine Specific
`limits for re ulated pollutants. See Doc. 20-1 at 15.. UNC is correct that the heat input
`capacity is
`ISO included in the section '1 description ofthe boilers, see Doc. 20-1 at 8,
`
`which is co lied verbatim into Section 2.1. That copying, however, indicates that the
`
`‘ numbers ar
`important for determining the limits; otherwise, Section 2.1 would simply
`refer to the dilers by their shorthand identification numbers provided in Section 1.
`
`UNC’s inte
`
`retation would thus render the language pertaining to heat input capacity for
`
`the two boi
`
`rs superfluous.
`
`laim II-I — Violations of Air. Cleaner Inspection Requirements
`
`
`
`Pe
`it condition 2.1.G.3.k requires UNC to inSpect the air cleaner of each of the
`82 emergen y generators listed in permit Section 2.1.G. Doc. 20-1 at 37—39, 42-. UNC
`
`must condu t this inspection every 1000 hours of operation or annually, whichever comes
`
`first. Doc.
`
`0—1 at 42. Failure to maintain records of these inspections is a violation of
`
`15A N.C.
`
`dmin. Code 2D .1111 (2018). Plaintiffs’ third claim alleges that UNC failed
`
`to inspect t e. air cleaners for any such generator fi'om June 16, 2016 to December 31,
`
`2016, as we 1 as each day in 2017 and 2018. Doc. 17 at 1] 43.
`
`' UN moves to dismiss on three grounds. Doc. 20 at 19—23. The first is a subject
`
`matter juris iction argument pursuant to ‘Rule 12(b)(1), and the other two challenge the
`
`sufficiency f the allegations under Rule 12(b)(6).
`
`
`
`Case 1:19-cv-01179-CCE-JLW Document 30 Filed 10/21/20 Page 4 of 7
`Cas 1:19-cv-01179-CCE-JLW Document30 Filed 10/21/20 Page4of7
`
`
`
`
`
`First the Court has subject matter jurisdiction. It is undisputed that the complaint
`
`presents se, eral federal questions and that there is a live controversy. UNC contends the
`
`court shoul abstain pursuant to Burford v. Sun Oil Ca, 319 US. 315 (1943). But it is
`not at all cl ar that this case will require resolution of issues of state policy,land in any
`event, the if so law indicates Burford abstention does not apply in this context. See Chico ‘
`
`Serv. Static , Inc. v. Sol RR. Ltd, 633 F.3d 20, 29—31 (1st Cir: 2011) (declining to
`
`follow Bur
`rd in the context of environmental citizen suits); Fresh Airfor the Eastside,
`.Inc. v. Was ' Mgmt. ofN.K, LLC, 405 F. Supp. 3d 408, 427, 429—30 (W.D.N.Y. 2019)
`
`(concludin that Burford abstention does not ordinarily apply in CAA cases); DMJ
`
`Assocs. v.
`
`apasso, 228 F. Supp. 2d 223, 229 (E.D.N.Y. 2002) (“[A] number ofcourts
`
`
`. [f und] abstention inappropriate in citizen’s suits brought under the Clean Air
`
`have .
`
`.
`
`Act”). As 3 bject matter jurisdiction may be challenged at any point-in the proceeding,
`
`and the brie mg on this point was not completely developed, the motion is denied without
`
`prejudice to renewal at summary judgment.
`
`Seco d, UNC argues that the plaintiffs have not alleged necessary facts showing
`
`that inspect ons were required between June 16 and December 31, 2016. Doc. 20 at 19.
`
`But the plai tiffs have alleged that these inspections are required every 1000 hours of
`
`operation,
`
`00. 17 at fil 42, and the subject generators could easily have operated for 1000
`
`
`
`hours betw en June 16 and December 31, 2016. The plaintiffs have sufficiently pled
`
`facts to sup ort its claim.
`
`Final y, UNC argues that the plaintiffs’ suit is barred because Department of
`
`Environme tal Quality issued a Notice of Violation to UNC in connection with the air
`
`
`
`Case 1:19-ciI-01179-CCE-JLW Document 30 Filed 10/21/20 Page 5 of 7
`Case 1:19-cv-01179-CCE-JLW Document 30 Filed 10/21/20 Page 5 of 7
`
`
`
`
`
`cleaner ins ections. Doc. 20 at 20. Pursuant to § 7604, citizen suits are barred when an
`
`“Administr tor or State has commenced and is diligently prosecuting a civil action in a
`
`court of the United States or a State” for a violation. 42 U.S.C. § 7604(b)(l)(B). But as
`
`UNC admit , the NOV is not being litigated in a North Carolina court. Doc. 20 at 21.
`
`Indeed, it is not being‘ litigated in any court. Many federal courts, including the Fifth I
`
`Circuit, ha‘
`
`
`previously refused to interpret “court of the United, States or a State” to
`
`include ad inistrative actions under § 7604. See, e.g., Texans Unitedjbr a Safe Econ.
`
`Educ. Fun v. Crown Cent. Petroleum Corp, 207 F.3d 789, 795 (5th Cir. 2000) (“[T]he
`plain meani g of"court ofthe United States or a State’ excludes administrative actions”).
`An adminis rative action by DEQ is not “a civil action in a court of the United Sates or a
`State,” and
`concurrent citizen suit by the plaintiffs is not barred.
`
`h
`
`laims II and IV through X
`
`
`
`The
`
`guments made by UNC to dismiss the remainder of plaintiffs’ claims are
`
`based on th contention that the complaint does not meet the pleading requirements of
`
`Twombly a d Iqbal. While Twombly and Iqbal do not allow a case to go forward with
`
`only conclu ory allegations and require that a complaint “plausibly suggest an-
`
`entitlement o relief,” Iqbal, 556 U.S. at 681, those cases do not hold that a plaintiff must
`
`prove the (:1 ments of a cause of action in their pleading. See FDIC v. Baldini, 983
`
`F.Supp.2d 72, 785 (SD. W. Va. 2013). Indeed, Twombly explicitly states that a
`
`complaint“ oes not need'detailed factual allegations.” 550 U.S. at 555. The Court
`
`
`
`evaluates th complaint according to the standards set forth in those two cases and as
`
`explained i detail by the Fourth Circuit in Francis v. Giacomellt’, 588 F.3d 186, 193 (4th
`
`
`
`Case 1:19-cv-01179-CCE-JLW Document 30 Filed 10/21/20 Page 6 of 7
`Cas 1:19-cv-01179-CCE-JLW Document30 Filed 10/21/20 Page60f7
`
`
`
`Cir. 2009) and Nemet Chevrolet, Ltd v. Consumerafi’airscom, Inc, 591 F.3d 250, 255—
`
`56 (4th Cir. 2009); accord Hayes 1). SelfHelp Credit Union, No. 1:13-CV-880, 2014 WL
`
`4198412, at *2 (M.D.N.C. Aug. 22, 2014).
`
`Here, plaintiffs have met the Twombly/Iqbal standard for claims II, IV, V, VI, VII,
`
`VIII, IX, and X. The plaintiffs have alleged that UNC has violated specific conditions of
`
`its air pollution permit, with identifiable fixtures and equipment, and on or within specific
`
`dates or date ranges. Additionally, plaintiffs have alleged at the outset of the complaint
`
`that “upon information and belief” UNC has “repeatedly violated” each of the specified
`
`permit conditions. Doc. 17 atfil 1. As such, UNC’s motion to dismiss will be denied as
`
`to claims 11 and IV through X.
`
`It is ORDERED that the defendant’s motion to dismiss the first amended
`
`complaint, Doc. 19, is DENIED.
`
`This the 213t day of October, 2020.
`
` UNITED STATES DIST
`
`Case 1:19-cv-01179-CCE-JLW Document 30 Filed 10/21/20 Page 7 of 7
`Case 1:19-cv-01179-CCE-JLW Document 30 Filed 10/21/20 Page 7 of 7
`
`
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