United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
This matter is before the Court on Defendant's motion (Doc. No. 22) to dismiss Plaintiff's amended complaint for failure to state a claim and for lack of subject matter jurisdiction under the Clean Air Act ("CAA"), 42 U.S.C. §§ 7401 et seq., or alternatively, to strike the complaint's allegations regarding emissions of particulate matter ("PM"). For the reasons set forth below, Defendant's motion shall be denied.
Plaintiff is a non-profit environmental organization with over 8, 700 members in Missouri. Defendant is an electric company with three coal-fired power plants in Missouri, each operating with a permit issued under Title V of the CAA, 42 U.S.C. §§ 7661 et seq., and Missouri's state implementation plan ("SIP"), as approved by the Environmental Protection Agency ("EPA"). Plaintiff filed its amended complaint on March 17, 2014, under the CAA's "citizen suit" provision, 42 U.S.C. § 7604(a), after providing notice of its claims to Defendant, the state of Missouri, and the EPA administrator. (Doc. No. 10 at 4.) Plaintiff alleges that Defendant's emissions exceeded the express limits on opacity set forth in Defendant's Title V permits and Missouri's SIP. Opacity refers to a plant's visible emissions, measured as a percentage of the amount of light being transmitted through a plume, and according to Plaintiff, opacity is a "general indicator of the amount of particulate matter (PM') emitted from the source in question." ( Id. at 7.) Plaintiff asserts that "opacity is used as a surrogate for the amount of PM in a plant's emissions" such that "[t]he higher the opacity percentage, the more PM emitted by the source." ( Id. at 7, 11.)
Defendant's Title V permits and the Missouri SIP set forth a maximum opacity limit of 20%. ( Id. at 7.) However, there are certain exceptions to the 20% limit, including an allowance of up to 40% opacity for one six-minute period per hour, and an exemption for excess opacity during certain start-up, shut down, and malfunction conditions. See Mo. Code Regs. Ann. tit. 10, § 10-6.220(3). Defendant is required to report each period of excess opacity on a quarterly basis to the Missouri Department of Natural Resources ("MDNR"). Plaintiff alleges that, according to Defendant's own reports, Defendant has violated the opacity limits on at least 7, 880 separate occasions during the period March 5, 2009 through March 31, 2013, and that violations continue to occur.
Plaintiff alleges that these opacity violations harm the health, welfare, recreational, and aesthetic interests of its members who live, work, or recreate near Defendant's power plants. Specifically, Plaintiffs assert that its members "enjoy a number of recreational activities, including camping, boating, and wildlife observation, in the vicinity of, or downwind from, one or more of [Defendant's] Power Plants[, ] [and] [s]eeing the smoke from [Defendant's] Power Plants reduces these members' enjoyment of those recreational activities." (Doc. No. 10 at 13). Plaintiff also asserts that its members living, working, or recreating near Defendant's plants are exposed to increased air pollution as a result of Defendant's opacity violations, and that the "increase in exposure to PM increases the risk of acquiring respiratory or cardiac disease." Id. Plaintiff seeks declaratory and injunctive relief, as well as the imposition of civil penalties.
Defendant filed its motion to dismiss on May 15, 2014. Defendant argues that the amended complaint must be dismissed because its alleged violations of general opacity limits are not actionable. Defendant argues that opacity, unlike PM, is not itself a pollutant and is only a rough indicator of the amount of PM emitted by a plant. Defendant asserts that it is permitted to emit some amount of PM, up to a specific mass limit set forth by the EPA and MDNR,  and because Plaintiff has not alleged any violation of this mass limit, Plaintiff cannot state a claim for excess PM emissions.
Defendant argues that the only actionable opacity limits are source-specific opacity limits known as "PM Compliance Indicators" that are also set forth in each plant's operating permit. Defendant argues that, unlike the general opacity limits, these PM Compliance Indicators are plant-specific, boiler-specific opacity levels at or below which the EPA and MDNR have determined each boiler to be in compliance with the PM mass limit. In this case, the PM Compliance Indicators for Defendant's boilers are set at a higher percentage than the 20% general opacity limits. Defendant argues that because Plaintiff does not allege any violation of the permits' higher PM Compliance Indicators, Plaintiff's complaint both fails to state a claim under the CAA and Missouri SIP, and also constitutes an impermissible collateral attack on the administrative permitting process, over which this Court lacks subject matter jurisdiction.
Further, Defendant states that even if a general opacity violation were actionable, an excess opacity reading cannot be deemed a violation unless the MDNR determines it to be unexcused, and Plaintiff has not alleged any such MDNR determination here.
Next, Defendant argues that the lack of a causal connection between general opacity limits and PM emissions also prevents Plaintiff from demonstrating standing. Defendant contends that the primary harm alleged by Plaintiff relates to exposure to excess PM emissions, and for the reasons discussed above, such harm is not traceable to Defendant's alleged violations of opacity limits. Defendant also argues that Plaintiff's remaining allegations of injury to unspecified members' recreational and aesthetic interests are too vague and speculative to demonstrate standing.
Alternatively, Defendant argues that Plaintiff's allegations regarding any injuries resulting from PM emissions should be stricken as immaterial to the violations alleged, leaving only Plaintiff's allegations regarding general opacity violations, which according to Defendant, fail to state a claim.
Plaintiff responds that Defendant's operating permits contain not only PM Compliance Indicators, but also express numeric opacity limits, which are enforceable in their own right. Plaintiff argues that it is not attempting to collaterally attack the permitting decision or the permit terms, but is instead attempting to enforce the express opacity limits contained in the permits as written. Plaintiff disputes Defendant's assertion that an excess opacity reading cannot be a violation of the opacity limits unless the MDNR declares it as such. Plaintiff argues that the regulation cited by Defendant in support of this assertion merely provides a procedure for the MDNR to determine whether to bring its own enforcement action, but does not preclude citizens from filing private suits to enforce violations of the express numeric opacity limits.
Moreover, Plaintiff argues that its complaint sufficiently alleges standing in that it asserts injury traceable to Defendant's conduct. Plaintiff argues that the opacity limits Defendant violated are an independent limitation on particulate air pollution and a "surrogate" for PM emissions. Thus, Plaintiff alleges that Defendant's violations of the opacity limits demonstrate excess emissions of PM and other pollutants, and are causally connected to greater exposure to air pollution and reduced enjoyment of recreational activities for Plaintiff's members living, working, or recreating near Defendant's plants.
Finally, Plaintiff argues that because its allegations regarding exposure-related injuries are material to its claim for violation of the opacity limits, Defendant's ...