The Nickel Report

In April 2015, the United States Environmental Protection Agency issued a final rule governing the control and management of coal combustion residuals (CCR) in surface impoundments used to treat those residuals. In general, CCR consists of materials that result from the combustion of coal at coal-fired electric utility plants. As part of its rule, EPA required operators to submit initial closure plans for impoundments and post them on a publicly available website in November 2016. Under the rule, these initial closure plans must contain information related to the method of closure, and are subject to change as operators gather additional information.

In June 2017, the Roanoke River Basin Association (RRBA) filed the first ever citizen suit under the CCR Rule. The suit, filed in the United States District Court for the Middle District of North Carolina, alleged that Duke Energy’s initial closure plan for its Mayo Steam Station did not comply with the CCR Rule. In particular, RRBA alleged that Duke Energy’s initial closure plan failed to “meet the minimum requirements for closure plans and violates the CCR Rule by leaving … coal ash in water and impounded behind the dam.” RRBA alleged that its members “have been harmed by Duke Energy’s” alleged “unlawful activities,” and that they “reduc[e] the use and enjoyment” of areas around the plant where RRBA’s members “fish” and “recreate.” RRBA sought injunctive relief, civil penalties and attorneys’ fees.

In August 2017, Duke Energy moved to dismiss RRBA’s complaint. In addition to maintaining that its initial closure plan fully complied the CCR Rule, Duke Energy argued that RRBA’s citizen suit should be dismissed because: (1) RRBA lacks standing; (2) RRBA’s claims are not ripe; and (3) the Court should abstain from considering the claims in light of Duke Energy’s compliance with an ongoing state and federal administrative process to address CCR.

On March 29, 2018, the Court dismissed RRBA’s citizen suit, finding that RRBA lacked standing and that its claims were not ripe. On the issue of standing, the Court found that RRBA’s complaint failed to demonstrate any “causal nexus between the harms alleged and the conduct of Duke Energy.” The alleged injury—diminished use of waters around the plant—was “not directly linked to Duke Energy’s preparation of an initial closure plan that allegedly failed to comply with the CCR Rule’s requirements regarding its contents.” In addition, the Court rejected RRBA’s claim that it had alleged a “procedural injury” because RRBA’s complaint failed to identify any “concrete harm to [RRBA] or its members resulting from [an] alleged procedural violation of the CCR Rule.” Finally, the Court rejected RRBA’s claim of an “information injury” because the complaint was “completely devoid of any allegation that [RRBA] and its members sought, and have been denied, information required under the CCR Rule, and that such denial has caused injury.”

The Court also found that RRBA’s claims were not ripe because: (1) whether the closure plan “ultimately meets the performance standards” under the CCR Rule “would involve extensive, time-consuming judicial consideration of the specifics of an elaborate, technical plan”; (2) the initial closure plan is “not final and is wholly dependent on future uncertainties”; and (3) neither RRBA “nor anyone else” will feel the “effects from the implementation of Duke Energy’s closure plan unless and until” it is approved by the state permitting authority in North Carolina.

Because it found that RRBA lacked standing and that its claims were not ripe, the Court did not address Duke Energy’s arguments for abstention.

RRBA has until April 30, 2018 to appeal the district court’s decision.