Prairie Rivers Network v. Dynegy Midwest Generation, LLC
Docket: Case No. 18-CV-2148
Court: District Court, C.D. Illinois; November 13, 2018; Federal District Court
Colin S. Bruce, U.S. District Judge, presided over a citizen enforcement action filed by Prairie Rivers Network against Dynegy Midwest Generation, LLC, alleging violations of the Clean Water Act (CWA) at the Vermilion Power Station in Illinois. The plaintiff claims that the defendant has been discharging pollutants into the Middle Fork of the Vermilion River from unpermitted seeps, which violates the CWA since these discharges are unauthorized and exceed the limitations of their existing permit. Furthermore, the defendant's discharges allegedly do not meet Illinois water quality standards.
Prairie Rivers Network, an Illinois non-profit with over 1,000 members focused on protecting water resources, asserts that the unauthorized discharges have harmed their enjoyment of the river. Dynegy, a Delaware corporation and a subsidiary of Vistra Energy, owns the Vermilion Power Station, a retired coal-fired facility that generated significant amounts of coal combustion residuals. The facility has three unlined coal ash pits that continue to store substantial amounts of coal ash, despite being out of service since the plant's closure in 2011.
The defendant's motion to dismiss was fully briefed and subsequently granted. The court accepted the allegations in the plaintiff's complaint as true, emphasizing the need for environmental compliance in light of the ongoing pollution claims.
Coal ash wastewater from coal ash pits contains harmful heavy metals and toxic pollutants, including arsenic, barium, chromium, lead, manganese, molybdenum, nickel, and sulfate. These contaminants pose serious health risks, such as brain damage, cancer, learning disabilities, birth defects, and reproductive issues. Arsenic is recognized as a carcinogen affecting the nervous system, while manganese can impair learning and render water unusable due to discoloration. Molybdenum is associated with gout and other health problems, and boron can reduce sperm count and cause low birth weight.
The defendant’s authority to discharge wastewater is governed by NPDES Permit IL0004057, issued by the Illinois Environmental Protection Agency under the Clean Water Act. This permit outlines permitted wastewater discharge points and establishes limitations and monitoring requirements for pollutants. It specifies nine external outfalls at the facility, regulating discharges to the Middle Fork. Standard Condition 23 mandates that waste disposal prevents entry into state waters and requires proper authorization. Illinois regulations define "sludge" as waste from treatment facilities, while "disposal" encompasses various forms of waste release into the environment. Standard Condition 25 requires compliance with additional state regulations, which prohibit effluent containing certain contaminants and mandate the reduction of color, odor, and turbidity.
"Effluent" is defined as wastewater discharged to state waters or storm sewers, including runoff from land used for wastewater or sludge disposal (35 Ill. Adm. Code. 301.275). Under the Illinois Administrative Code, no person may allow certain contaminants in effluent to exceed specified levels (Ill. Adm. Code. 304.124(a)). The current Permit was effective as of March 7, 2003. Since at least May 2013, coal ash pits at VPS have continuously discharged pollutants such as arsenic, barium, and others into the Middle Fork through unpermitted seeps near the North Ash Pond and Old East Ash Pond. The Middle Fork, a surface water body under the jurisdiction of the Clean Water Act (CWA) and Illinois law, lacks a specific use designation and is thus subject to general use standards and effluent limitations (35 Ill. Adm. Code Parts 302 and 304).
Groundwater monitoring from 1992 to 2007, and again in 2011 and 2017, revealed that concentrations of boron and sulfate consistently exceeded both Illinois groundwater protection standards and EPA drinking water health advisories, indicating coal ash contamination. Reports indicate that groundwater, which flows through the saturated coal ash year-round, is contaminated and contributes pollutants to the Middle Fork. In independent sampling conducted in May 2016 and September 2017, groundwater seeps were found to have elevated concentrations of various contaminants, including arsenic and manganese, exceeding both background levels and health-based standards. Discharges from the coal ash pits have also caused discoloration of the Middle Fork in low-flow areas adjacent to the pits, exhibiting a bright orange-red color.
Count I of the Plaintiff's Complaint asserts that the Defendant unlawfully discharged pollutants into the Middle Fork without the necessary authorization from an NPDES Permit. The Plaintiff claims that the Middle Fork qualifies as navigable water under the CWA and that pollutants from the VPS coal ash pits have been released into it through unpermitted seeps. These discharges violate both the CWA and the terms of the Permit, specifically Section 1311.
Count II alleges that the Defendant's actions contravene specific conditions of the NPDES Permit, notably Standard Condition 23, and result in discolored water containing excessive iron and manganese, violating Standard Condition 25. The complaint describes the visible pollutants as a bright orange-red color and states they cause sedimentation on the riverbed, further breaching Permit Conditions.
In response, the Defendant's motion to dismiss argues that the Complaint's assertion of groundwater contamination does not fall under CWA jurisdiction, citing Seventh Circuit precedent. The Plaintiff contends that this precedent is not applicable and that the allegations in Count II represent distinct violations granting the court jurisdiction.
The Defendant requests that the motion to dismiss be evaluated under both Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), the focus is on the Complaint's sufficiency without addressing the merits, while Rule 12(b)(6) challenges whether the Complaint states a plausible claim for relief. The court is required to accept the Plaintiff’s factual allegations as true and draw reasonable inferences in their favor, with the burden resting on the Plaintiff to demonstrate the jurisdictional requirements are satisfied. A plausible claim must contain sufficient factual matter to rise above mere speculation, as established in relevant case law.
Allegations that warrant a presumption of truth must be factual, not merely legal conclusions. The Defendant contends that the court should assess its motion under both Rules 12(b)(1) and 12(b)(6), referencing similar cases from other district courts. However, based on the Seventh Circuit's decision in Village of Oconomowoc Lake v. Dayton Hudson Corp., which affirmed a dismissal under Rule 12(b)(1), the court will follow this precedent. The court notes that the outcome would be the same under either rule.
In Count I, the Defendant argues that Oconomowoc is directly applicable, asserting the Clean Water Act (CWA) does not regulate contaminant discharges into groundwater, even if that groundwater subsequently flows into navigable waters. The Plaintiff counters that Oconomowoc is not relevant, claiming the Defendant misconstrues the ruling, as it pertains only to discharges into groundwater without evidence of direct pollution reaching navigable water. The Plaintiff argues that most courts uphold the view that the CWA prohibits such discharges under its plain language.
In Oconomowoc, a local village sued Target for alleged violations of the CWA related to oil drips from trucks parked at a warehouse, which contaminated rainwater runoff collected in a pond that seeped into the ground. The district court ruled that the rainwater runoff did not constitute "navigable waters" under the CWA, and despite groundwater eventually reaching bodies of water, it did not fall under the definition of "waters of the United States" as per the CWA. The Seventh Circuit affirmed this, emphasizing the CWA's broad yet limited reach and questioning the impact of pond water on local groundwater and, subsequently, navigable waters.
The court referenced the Wickard decision to argue that certain activities, such as a farmer consuming home-baked bread, fall under "interstate commerce" due to their impact on interstate shipments. Extending this rationale, the court posited that all ground waters could be considered within national jurisdiction. However, it determined that the Clean Water Act (CWA) does not claim comprehensive national authority, as the phrase "Waters of the United States" implies a specific subset of water, rather than an all-encompassing definition. The court concluded that the omission of groundwater regulation in the CWA was intentional, leaving such matters to state law.
The court addressed the hydrological connection between groundwater and surface waters, acknowledging its existence but asserting that neither the statute nor regulations provide grounds for regulating based solely on that connection. The EPA has recognized this potential relationship but has not amended its regulatory definitions to include groundwater discharges. Consequently, the court stated that discharges from artificial ponds into groundwater are not subject to the CWA, even if a hydrological link exists with navigable waters.
The plaintiff contended that the Oconomowoc case dealt only with discharges directly into groundwater and did not definitively rule on the applicability of the CWA in cases where groundwater may connect to surface waters. The court rejected this argument, reaffirming that the Seventh Circuit's ruling clearly indicated that the CWA does not extend authority over groundwater based on hypothetical hydrological connections to surface waters.
The Seventh Circuit determined that any hydrological connection between surface waters and groundwater is irrelevant for the purposes of the Clean Water Act (CWA). Discharges into groundwater do not invoke CWA regulations, even if pollutants later seep into navigable surface waters, as the initial discharge was into groundwater, which is not covered by the CWA. This interpretation was reinforced in the Oconomowoc case, where the court stated that neither the statute nor regulations recognize the mere possibility of a hydrological connection as a basis for regulation. The court acknowledged the EPA's recognition of the connection but noted that the EPA has not adjusted its regulatory definitions accordingly. A subsequent district court case, Cape Fear River Watch, echoed this reasoning, concluding that the CWA does not extend to groundwater discharges, even if they eventually flow into surface waters. The court dismissed the groundwater claim due to lack of subject matter jurisdiction, adhering to Seventh Circuit precedent despite contrary rulings from other circuits. The Sixth Circuit has similarly ruled that the CWA does not cover discharges through hydrologically connected groundwater. Consequently, Count I of the Plaintiff's Complaint was dismissed.
Count II asserts that even if Count I is dismissed due to lack of subject matter jurisdiction under the Clean Water Act (CWA), it should proceed because the claim of permit violations is independent of the requirement for direct discharges to navigable waters. The Plaintiff contends that violations of Conditions 23 and 25 of the Permit constitute independent violations under 33 U.S.C. 1311(a), as established in Friends of the Earth, Inc. v. Laidlaw Environmental Services. The Defendant counters that Count II still hinges on proving a discharge to navigable waters, which Plaintiff has failed to demonstrate, thereby making Count II non-actionable under the CWA. The CWA prohibits point source discharges of pollutants into U.S. waters without a valid NPDES permit, requiring proof of five elements to establish a violation. The court has previously ruled that the CWA lacks jurisdiction over the discharges in question since they occurred in groundwater, not navigable waters as defined under 33 U.S.C. 1362(12). Consequently, the alleged violations in Count II mirror those in Count I, with the only distinction being the specific permit conditions cited. The central issue is whether a claim can be made under the CWA for a permit violation when the discharges did not occur in navigable waters, thus falling outside the CWA's jurisdiction.
The Clean Water Act (CWA) prohibits the discharge of pollutants into the navigable waters of the United States. However, the statute does not extend to discharges that do not enter navigable waters, even if such discharges violate an NPDES permit. The court found no precedent allowing a plaintiff to bring a federal complaint based on permit violations when the discharges in question are not covered by the CWA. As a result, Count II of the complaint was dismissed. The court granted the defendant's motion to dismiss, resulting in a full dismissal of the plaintiff's complaint and a judgment in favor of the defendant. While the court acknowledged the seriousness of the pollution issues raised by the plaintiff, it clarified that the claims are not actionable under the CWA and advised the plaintiff to seek recourse in the Illinois state courts with the Illinois EPA.
