Coalition v. River Cities Disposal, LLC

OHIO VALLEY ENVIRONMENTAL COALITION PLAINTIFF v. RIVER CITIES DISPOSAL, LLC DEFENDANT

CIVIL ACTION NO. 15-47-DLB-EBA

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT ASHLAND

March 29, 2016

MEMORANDUM OPINION AND ORDER*** *** *** ***

I. INTRODUCTION

This is a citizen suit under the Clean Air Act ("CAA") seeking declaratory and injunctive relief and civil penalties . Plaintiff Ohio Valley Environmental Coalition ("OVEC") brought suit on behalf of itself and its members, against Defendant River Cities Disposal, LLC ("River Cities") for alleged violations of ambient air quality standards contained in Kentucky statutes and regulations, as well as the CAA. (Doc. # 1). Although couched in terms of a Motion to Dismiss, River Cities essentially asks this Court to abstain from exercising its jurisdiction, in accordance with Burford v. Sun Oil Co., 319 U.S. 315 (1943), because the issues before this Court are "already being addressed by Kentucky's Energy and Environment Cabinet." (Doc. # 6-1, p. 1). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 7604(a).

II. FACTUAL BACKGROUND

In order to properly detail the facts of this particular case, the Court must first explain the mechanics of the CAA, which stands as "a model of cooperative federalism." Ellis v. Gallatin Steel Co., 39 F.3d 461, 467 (6th Cir. 2004). The CAA "requires each State to establish a state implementation plan (SIP) to limit emissions in accordance with national ambient air quality standards set by the federal EPA." Id. (citing 42 U.S.C. §§ 7409(b)(1), 7410(a)(1)). Additionally, "under Subtitle D of the Resource Conservation and Recovery Act ("RCRA"), states are required to develop solid waste management plans pursuant to guidelines established by the EPA." (Doc. # 6-1, p. 3 (citing 42 U.S.C. §§ 6941-6949)).

To comply with these obligations, Kentucky has developed a plan for municipal solid waste facilities, as well as an air quality plan. The EPA has approved these plans.¹ (Doc. # 6-1, p. 3). The Division of Air Quality ("DAQ"), a division of the Kentucky Energy and Environment Cabinet's ("Cabinet") Department for Environmental Protection ("DEP"), oversees Kentucky's air quality program, which encompasses monitoring, compliance, and permitting.² Ky. Rev. Stat. Ann. § 224.10-100 requires the Cabinet to "prescribe administrative regulations for the prevention, abatement, and control of air pollution." Pursuant to the CAA and Ky. Rev. Stat. Ann. § 224.10-100, Kentucky has established an odor standard, identified in 401 Ky. Admin. Reg. 53:010.

Solid waste facilities are subject to a multitude of statutory and regulatory conditions, including permitting,³ management,⁴ and operation requirements.⁵ Foremost in the present case is 401 Ky. Admin. Reg. 47:030 § 10(2), which provides that a "solid waste site orfacility shall not violate applicable air pollution requirements" set forth in Ky. Rev. Stat. Ann. Chapter 224 or 401 Ky. Admin. Reg. Chapters 50 through 63. Thus, solid waste facilities are subject to 401 Ky. Admin. Reg. 53:010's odor standard.

The CAA "relies on three sources of enforcement authority" - first, the CAA "entrusts the EPA with primary responsibility for promulgating national ambient air quality standards;" then, States implement their own plans (SIPs), which the CAA "permits States to enforce;" and finally, if "States fail to enforce their plans, the statute authorizes federal EPA action and private enforcement actions or 'citizen suits.'" Ellis, 390 F.3d at 174-75. The CAA includes a citizen suit provision, 42 U.S.C. § 7604(a), which permits private individuals to bring suit "against any person ... who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of (A) an emission standard or limitation" or "(B) an order issued by the Administrator or a State with respect to such a standard or limitation." However, before bringing a citizen suit, the plaintiff must satisfy two (2) prerequisites. First, a plaintiff must provide sixty (60) days' notice of the violation to the EPA Administrator, the State in which the violation occurs, and the alleged violator. 42 U.S.C. 7604(b)(1)(A). Second, "citizens cannot commence independent suits if the EPA or the State has already commenced an enforcement action and is diligently prosecuting the violation." Ellis, 390 F.3d at 467 (citing 42 U.S.C. § 7604(b)(1)(B).⁶

Big Run Landfill, owned and operated by River Cities, is a permitted solid waste facility located in Boyd County, Kentucky. (Doc. # 6-2). Therefore, it is subject to the RCRA, CAA, and Kentucky's statutes and regulations promulgated pursuant thereto, including the odor standard in 401 Ky. Admin. Reg. 53:010. Between May 18, 2011 and December 17, 2013, DAQ issued Big Run Landfill approximately twenty (20) Notices of Violations, many of which were because of a "detectable odor." (Doc. # 6-7). In an effort to settle "all civil claims and controversies involving the alleged violations," River Cities and the Cabinet entered into an Agreed Order on January 28, 2014. (Doc. # 6-4, p. 10). The Agreed Order required River Cities to take certain remedial measures, including developing and submitting a Corrective Action Plan (the "Second CAP") to address the odor violations. Id. at 11. In addition, the Agreed Order provided that "[s]o long as Big Run is in compliance with the terms of the Agreed Order and is implementing the Second CAP, in accordance with remedial measures deadlines," the Cabinet "shall hold in abeyance civil penalties resulting from violation of 401 KAR 53:010 Appendix A, except for any violations unrelated to the remediation of the Slide or the gas collection and control system ("GCCS") or any failure to operate or maintain odor control equipment ("Other Odor Violations")." Id. at 13. However, the Agreed Order did require River Cities to "pay a stipulated penalty of Seven Thousand Five Hundred Dollars ($7,500) for any Other Odor Violations" until the Second CAP was completed; and further established that, after completion of the Second CAP, "during the term of this Agreed Order, Big Run shall pay a stipulated penalty of Seven Thousand Five Hundred Dollars ($7,500) for any violation of 401 KAR 53:010 Appendix A." Id. at 14. Lastly, the Agreed Order provided that it "shall terminate upon Big Run's completion of all requirements described in this Agreed Order." Id. at 20.

Since the entry of the Agreed Order on January 18, 2014, DAQ has issued River Cities an additional forty (40) Notices of Violations, thirty-four (34) of which were for a "detectable odor" in violation of 401 Ky. Admin. Reg. 53:010. In response, DAQ has assessed stipulated penalties totaling approximately Two Hundred and Thirty Thousand Dollars ($230,000). (Doc. # 6-4, p. 5-6).⁷ In accordance with the Agreed Order, River Cities submitted the Second CAP to the Cabinet on April 28, 2014, which was "revised based on the Cabinet's comments and directives." (Doc. # 6-8, p. 3). On June 4, 2015, River Cities notified the Cabinet that the Second CAP's requirements had been implemented and completed, indicated it would "continue to comply with the Second CAP," and advised the Cabinet of additional corrective actions taken. Id.

Shortly thereafter, on June 9, 2015, River Cities filed its Permit Renewal Application with the Cabinet. (Doc. # 6-2). Pursuant to Ky. Rev. Stat. Ann. § 224.40-310(13) and 401 Ky. Admin. Reg. 47:160 § 5(4), a previously-issued permit "shall carry with it the right of successive renewal upon expiration," but the Cabinet, "in issuing a renewal, shall consider whether all conditions of the original permit and modifications of permit conditions by agreed order" have been met. After River Cities's application for permit renewal, the Cabinet provided for a public notice and comment period and held a public hearing in Boyd County⁸ on August 25, 2015, pursuant to Ky. Rev. Stat. Ann. § 224.40-310(14). (Doc. # 6-3). During that hearing, the Cabinet heard from many concerned Boyd County citizens, some in favor of and some opposed to renewing River Cities's permit. (Doc. # 14-10). The Cabinet also received written comment from Citizens of Boyd County Environmental Coalition, alerting the Cabinet that they had secured the signatures of 2,100 citizens who opposed the permitting of Big Run Landfill, and specifically requesting that the Cabinet "consider all the notices of violation for the many years, all the many residents impacted by the hydrogen sulfide odors, all the many students who are sickened during their school days, all the residents who have lost their property values, and how this nuisance has affected the quality of life of hundreds of Kentuckians." (Doc. # 6-5).

On July 13, 2015, OVEC filed this CAA citizen suit for declaratory and injunctive relief and civil penalties against River Cities for alleged "violations of an emissions standard and limitation contained in Kentucky's SIP." (Doc. #1, p. 1). OVEC claims that "River Cities has caused or allowed emissions from the Big Run Landfill and/or the attendant rail transfer facility to exceed SIP limitations on odor." Id. Specifically, OVEC seeks the following relief: (1) a declaration that "River Cities has violated and continues to violate the CAA," (2) an injunction prohibiting "River Cities from operating its facilities in such a manner as will result in further violations of the SIP and the CAA," (3) an assessment of "appropriate civil penalties for each daily violation of the emissions standards and the CAA," (4) an order requiring "River Cities to immediately comply with the standards and limitations of the Kentucky SIP," (5) and an order requiring "River Cities to conduct monitoring and sampling to determine any health effects of its violations, to remedy and repair any environmental contamination and/or human health issues caused by its violations." (Doc. # 1, p. 8). OVEC also...