Sierra Club v. Ameren Corporation

Filing 33

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants motion to dismiss and to strike is DENIED. (Doc. No. 22.) re: 22 MOTION to Dismiss Case and to Strike filed by Defendant Union Electric Company Signed by District Judge Audrey G. Fleissig on 11/6/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SIERRA CLUB,
Plaintiff,
v.
UNION ELECTRIC COMPANY,
d/b/a AMEREN MISSOURI,
Defendant.

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No. 4:14-cv-00408-AGF

MEMORANDUM AND ORDER
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.
BACKGROUND
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
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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,1 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
1

Mass limits are measured in terms of pounds of PM per one million British Thermal
Units (“MMBtu”), and Defendant asserts that the mass limit applicable to its plants is
0.12 pounds per MMBtu for each boiler.
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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
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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
alternative motion to strike should also be denied.
DISCUSSION
To survive a motion to dismiss for failure to state a claim, a plaintiff’s allegations
must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The reviewing court must accept the
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plaintiff’s factual allegations as true and construe them in plaintiff’s favor, but it is not
required to accept the legal conclusions the plaintiff draws from the facts alleged. Iqbal,
556 U.S. at 678; Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766,
768-69 (8th Cir. 2012). A court must “draw on its judicial experience and common
sense,” and consider the plausibility of the plaintiff’s claim as a whole, not the
plausibility of each individual allegation. Zoltek Corp. v. Structural Polymer Group, 592
F.3d 893, 896 n.4 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 679).
“[T]o properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1),
the complaint must be successfully challenged on its face or on the factual truthfulness of
its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). In a facial challenge to
jurisdiction, as in a Rule 12(b)(6) motion, the plaintiff’s allegations “are presumed to be
true, and the motion is successful if the plaintiff fails to allege an element necessary for
subject matter jurisdiction.” Id. In a factual challenge, the court must evaluate any
factual dispute and determine whether the plaintiff has satisfied its burden to prove that
jurisdiction exists. Id. at n.1.
Additionally, under Rule 12(f), “[t]he court may strike from a pleading . . . any
redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
Failure to State a Claim and Lack of Subject Matter Jurisdiction
As an initial matter, the Court rejects Defendant’s contention that the Court lacks
subject matter jurisdiction because Plaintiff’s amended complaint constitutes an
impermissible collateral attack on the administrative permitting process. The CAA’s
“citizen suit” provision authorizes private civil actions against “any person . . . who is
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alleged to have violated . . . or to be in violation of [] an emission standard or
limitation[.]” 42 U.S.C. § 7604(a). The term “emission standard or limitation” is
defined to include “any [] standard, limitation, or schedule established . . . under any
applicable State implementation plan approved by the Administrator.” Id. § 7604(f)(4).
The provision also authorizes private suits against “any person . . . who is alleged to have
violated . . . or to be in violation of any condition of [a CAA] permit.” Id. § 7604(a).
Defendant does not dispute that the 20% general opacity limit is an express
condition of its Title V permits and the Missouri SIP. Plaintiff does not attack the terms
of the opacity limit or any other permit conditions, including PM mass limits or PM
Compliance Indicators. Plaintiff merely seeks to enforce the opacity limit independently
and on its express terms, as the CAA permits. The Court thus finds it has subject matter
jurisdiction to hear Plaintiff’s claim. Cf. Sierra Club v. Otter Tail Power Co., 615 F.3d
1008, 1013 (8th Cir. 2010) (holding that where Sierra Club “essentially attack[ed] the
terms of [defendant’s] amended Title V permit rather than [defendant’s] compliance with
the permit,” district court lacked subject matter jurisdiction because the CAA vests
judicial review of administrative permitting process exclusively in the courts of appeal).
The federal courts have repeatedly recognized an independent cause of action for
violation of general opacity limits under Title V permits and/or state SIPs, regardless of
whether a plaintiff also asserts a claim for violation of any related limits on emissions.
See, e.g., Sierra Club v. TVA, 430 F.3d 1337, 1349 (11th Cir. 2005) (“TVA”) (recognizing
standalone claim under CAA for violation of Alabama SIP’s 20% general opacity limit
without any discussion of additional violations of mass limits or more specific opacity
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limits); Sierra Club v. Energy Future Holdings Corp. (“Luminant”), 921 F. Supp. 2d 674,
681 (W.D. Tex. 2013) (allowing claim for violation of general opacity limit set forth in
Title V permit and Texas SIP and also finding nearly identical collateral attack argument
to be “without merit” because “[s]ection 304 of the Clean Air Act expressly authorizes
citizen plaintiffs to bring suit for violations of any emission standards or limitations under
a Title V permit or any State implementation plan,” and the general opacity limits
plaintiff sought to enforce were expressly set forth in both the permits and SIP at issue)
(emphasis in original); Sierra Club v. DTE Energy Co. (“DTE Energy”), No. 13-cv11103, 2013 WL 6910431, at 3-4 (E.D. Mich. Oct. 7, 2013) (allowing claim for violation
of general opacity limit set forth in Title V permit and Michigan SIP), adopted by 2014
WL 29127 (E.D. Mich. Jan. 3, 2014); Sierra Club v. Energy Future Holdings, Corp., No.
5:10cv156, 2013 WL 5354414, at *7-8 (E.D. Tex. Sept. 24, 2013) (allowing claim for
violation of general opacity limit set forth in Title V permit and Texas SIP).
Defendant asserts that these cases are inapposite because in these cases, the
permits at issue did not contain separate PM Compliance Indicators, or contained PM
Compliance Indicators set at or below the general limit, such that a violation of the
general opacity limit would also prove a violation of the PM Compliance Indicator limit.
The Court finds this distinction to be without merit. The cases cited above recognize an
independent claim for violation of express general opacity limits under the plain language
of the CAA citizen suit provision, regardless of a defendant’s compliance, or lack thereof,

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with any other limit on emissions.2 Defendant cites no authority for the proposition that
the general opacity limits are not enforceable as an independent condition of the Title V
permits and the Missouri SIP merely because the permits also contain boiler-specific PM
Compliance Indicator limits.
Federal courts interpreting the CAA have recognized that, as Plaintiff contends,
“[b]ecause opacity sometimes is easier to measure than particulates, it is commonly used
for indirectly monitoring and limiting the amount of particulates in emissions.”
Bethlehem Steel Corp. v. EPA, 782 F.2d 645, 648 (7th Cir. 1986) (also noting that opacity
“is a proxy for particulate emissions[.]”); Util. Air Regulatory Group v. EPA, 744 F.3d
741, 744 (D.C. Cir. 2014) (“To provide an alternative (and less expensive) way to assess
compliance [with emissions limits], EPA later added opacity standards to its boiler rules.
Opacity is not a pollutant but rather can serve as a proxy for pollutants.”) (internal
citations omitted); TVA, 430 F.3d at 1341 (noting that although “[o]pacity is not a
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For example, Defendant asserts that the Western District of Texas Luminant case is
distinguishable because it “expressly notes” that the defendant’s “plant had been assigned
PM Compliance Indicator opacity limits (20%) that were below the applicable general
opacity standard in Texas (30%).” See Doc. No. 30 at 8 (emphasis in original). But
Luminant contains no such language. Rather, the Title V permit in Luminant simply
contained a “more stringent” general opacity limit than that set forth under the Texas SIP
(20% rather than 30%). Luminant, 921 F. Supp. 2d at 681. Moreover, the court held that
this fact was “irrelevant . . . because the Sierra Club has standing to enforce the Texas
SIP standards separate and apart from the Title V permit.” Id. There is no suggestion
that the permit at issue in Luminant contained both a general opacity limit and also a
separate, more specific opacity limit, as Defendant contends here, or that the presence of
both types of limits would somehow foreclose the enforceability of the former. If
anything, Luminant undercuts Defendant’s position because it confirms that even if the
Title V permits did not contain an enforceable general opacity limit, Plaintiff could still
independently enforce the state SIP’s general opacity limit. Because in this case, both the
Title V permits and the state SIP contain the same general opacity limit, Plaintiff is
entitled to enforce both under the plain language of the CAA’s citizen suit provision.
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pollutant,” it “is important in the Clean Air Act regulatory scheme as an indicator of the
amount of visible particulate pollution being discharged by a source.”).
The Court therefore finds that the express general opacity limit set forth in
Defendant’s Title V permits and the Missouri SIP is independently enforceable under the
plain language of the CAA.
In its motion to dismiss, Defendant attempts to argue facts outside of the pleadings
by asserting that, notwithstanding any violation of general opacity limits, the amount of
PM emitted from Defendant’s plants was consistently below the legal limit. See, e.g.,
Doc. No. 23 at 6 n.2. Defendant also argues that its alleged violations of general opacity
limits are excusable because they were associated with exempted “start-up, shut down or
maintenance” activities. Id. But whether Defendant’s opacity violations did not result in
an unlawful amount of PM emissions, or are otherwise excusable under the CAA and
Missouri SIP, is a matter that requires further development of the record. See Luminant,
No. 12-cv-108, 2014 WL 2153913, at *8, *12-14 (W.D. Tex. March 28, 2014) (holding
only after full trial on merits that although plaintiff stated claim for violation of general
opacity limits in Title V permits and Texas SIP, defendants met their burden of proving
affirmative defenses to excuse the violations and were able to prove by expert testimony
that “the reported opacity events . . . did not result in particulate matter (‘PM’)
concentrations sufficient to cause or contribute to a violation of the . . . . National
Ambient Air Quality Standards (‘NAAQS’) for PM”). At the pleading stage, Plaintiff’s
allegations that Defendant violated an express condition under its Title V permits and the
Missouri SIP are sufficient to state a claim under the CAA.
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Standing
An association like Plaintiff “has standing to bring suit on behalf of its members
when its members would otherwise have standing to sue in their own right, the interests
at stake are germane to the organization’s purpose, and neither the claim asserted nor the
relief requested requires the participation of individual members in the lawsuit.” Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (citation
omitted). An individual member would have standing if he “(1) . . . suffered an “injury in
fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant;
and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.” Id. at 180-81 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-561 (1992).)
Defendant’s challenge to Plaintiff’s standing is twofold: first, that any increase in
Plaintiff’s members’ exposure to PM is not traceable to a violation of general opacity
limits, and second, that Plaintiff’s allegations of harm are not sufficiently specific
because, for example, Plaintiff does not identify the particular members who were
injured.
Regarding the first challenge, the Court notes that Plaintiff’s allegations of harm
are not limited to increased exposure to PM emissions. Plaintiff also asserts harm to its
members’ recreational and aesthetic interests from the opacity of the smoke plumes itself,
and this harm constitutes an independent injury in fact. See TVA, 430 F.3d at 1344-45
(holding that allegations that members “regularly saw plumes of smoke,” which
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interfered with their recreational and aesthetic interests, were sufficient to demonstrate
these members’ individual standing). Although Defendant asserts that “[n]o right exists
to a ‘plume free’ view of an operating power plant” (Doc. No. 23 at 13), Defendant does
not dispute that there are legal limits to the opacity of such plumes. And when a violation
of such limits results in a plaintiff’s decreased enjoyment of recreational activities, the
plaintiff may bring suit to redress that injury. See id.; Sierra Club v. Johnson, 436 F.3d
1269, 1279 (11th Cir. 2006) (“[E]nvironmental plaintiffs adequately allege injury in fact
when they aver they use the affected area and are persons for whom the aesthetic and
recreational values of the area will be lessened by the challenged activity.”) (quoting
Friends of the Earth, 528 U.S. at 183.)
Moreover, as discussed above, Plaintiff alleges that opacity is a surrogate for, and
an independent measure of, PM emissions. As such, the Court finds that Plaintiff’s
allegations of increased exposure to PM emissions are traceable to Defendant’s alleged
violations of opacity limits. See, e.g., DTE Energy Co., No. 13-cv-11103, 2013 WL
6910431, at *3-4 (rejecting defendant’s challenge that exposure-related injuries are not
“fairly traceable to the alleged violation of opacity limits” and finding that plaintiff’s
allegations that “opacity is used as a surrogate for [PM] emissions” and that the “health,
welfare and aesthetic and recreational interests” of plaintiff’s members were harmed by
increased exposure to air pollution were sufficient to support standing at the pleading
stage); Energy Future Holdings, Corp., No. 5:10cv156, 2013 WL 5354414, at *8
(rejecting defendant’s argument that harm related to emissions of pollutants is not
causally connected to opacity violations and finding plaintiff’s allegations that “opacity is
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an indicator of the excessive levels of particulate matter (‘PM’) pollution,” and that
plaintiff’s members suffered harm from exposure to such pollution, sufficient to plead
standing).
The Court also rejects Defendant’s challenge to the specificity of Plaintiff’s
standing allegations. The degree of evidence required to prove standing at successive
stages of litigation is the same as “any other matter on which a plaintiff bears the burden
of proof.” Const. Party v. Nelson, 639 F.3d 417, 420 (8th Cir. 2011) (citing Lujan, 504
U.S. at 561). “Therefore general factual allegations of injury resulting from the
defendant’s conduct will suffice to establish Article III standing at the pleading stage, for
on a motion to dismiss we presume that general allegations embrace those specific facts
that are necessary to support a contested claim.” Id. at 420-21; see also Luminant, 921
F. Supp. 2d at 681 (“Plaintiff is not required to ‘name names’” when alleging its
members suffered injury in fact for purposes of pleading standing). Plaintiff’s factual
allegations that its members who live, work, or recreate near Defendant’s plants suffered
injury traceable to Defendant’s conduct are sufficient to survive the pleading stage. The
Court finds thus that Plaintiff has adequately alleged that its individual members would
have standing.
With respect to the remaining elements of the association’s standing, the Court
finds, and Defendant does not contest, that Plaintiff’s organizational purpose to protect
the environment is closely related to the interests at stake, and there is no reason why the
claims or relief requested by Plaintiff require the participation of individual members.

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Therefore, Plaintiff has sufficiently pleaded standing to bring suit on behalf of its
members.
Motion to Strike
Because the Court finds that Plaintiff’s allegations of PM emissions and related
injuries are relevant to Plaintiff’s claims for violation of the opacity limits, and not
“redundant, immaterial, impertinent, or scandalous,” the Court also denies Defendant’s
motion to strike. See Fed. R. Civ. P. 12(f).
CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendant’s motion to dismiss and to strike is
DENIED. (Doc. No. 22.)
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 6th day of November, 2014.

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