Ky. Waterways Alliance v. Ky. Utilities Co.

303 F.Supp.3d 530

KENTUCKY WATERWAYS ALLIANCE, et al., Plaintiffs,

v.KENTUCKY UTILITIES CO., Defendant.

Civil Action No. 5: 17–292–DCR

United States District Court, E.D. Kentucky, at Lexington.

Signed December 28, 2017

Benjamin Locke, Pro Hac Vice, EarthJustice, Philadelphia, PA, Joe F. Childers, Joe F. Childers & Associates, Lexington, KY, Matthew E. Miller, Pro Hac Vice, Washington, DC, Thomas Cmar, Pro Hac Vice, EarthJustice, Oak Park, IL, for Plaintiffs.

Brent A. Rosser, Pro Hac Vice, Nash E. Long, III, Pro Hac Vice, Hunton & Williams, Charlotte, NC, Brett Robert Nolan, Finance & Administration Cabinet, Frankfort, KY, Eric J. Murdock, Pro Hac Vice, F. William Brownell, Pro Hac Vice, Hunton & Williams LLP, Washington, DC, J. Gregory Cornett, Robert J. Ehrler, Travis A. Crump, LG & E and KU Energy LLC, Louisville, KY, John C. Bender, Dinsmore & Shohl LLP, Lexington, KY, Robert M. Rolfe, Pro Hac Vice, Hunton & Williams, Richmond, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

Danny C. Reeves, United States District Judge

This is a citizen enforcement action brought by Plaintiffs Kentucky Waterways Alliance and Sierra Club against Defendant Kentucky Utilities Co. ("KU"). [Record No. 1] The plaintiffs allege that KU's handling, storage, treatment, transportation, and disposal of coal combustion residuals at the E.W. Brown Generating Station presents an imminent and substantial endangerment to human health and the environment in violation of the Resource Conservation and Recovery Act ("RCRA"), and has led to the unpermitted discharge of pollutants into navigable waters in violation of the Clean Water Act ("CWA"). [Id. ] KU has moved to dismiss the Complaint on the grounds that the plaintiffs do not have standing to bring an RCRA claim, that the RCRA claim is barred by the abstention doctrine of Burford v. Sun Oil , 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). The defendant also contends that the plaintiff's CWA claim fails as a matter of law. [Record No. 16] For the reasons that follow, the motion to dismiss will be granted.

I.

The E.W. Brown Generating Station ("E.W. Brown") is a three unit coal-fired power plant owned and operated by KU. [Record No. 1, ¶¶ 36–37] It is located on the west side of the Dix River, beside the hydroelectric dam that created Herrington Lake in Harrodsburg, Kentucky. It has been in operation since the 1950s. [Id. ¶¶ 37–38] E.W. Brown generates coal combustion residuals ("CCR"), consisting principally of fly ash (fine, powdery coal ash particles that are carried up the smokestack by exhaust gases) and bottom ash (larger coal ash particles that fall to the bottom of the furnace) as a result of the coal burning process. [Id. ¶ 38] To dispose of the CCR waste, KU has historically transported it by water through a sluice system to coal ash ponds known as "settling ponds" or "treatment ponds." [Id. ¶ 40] The heavier particles settle at the bottom of the ponds, while the more buoyant particles are channeled out through permitted discharges into Herrington Lake. [Id. ]

An unlined area known as the Main Ash Pond served as the primary settling pond for many years. [Id. ¶ 40] It was built in the 1950s by damming a valley leading to Herrington Lake, and was twice expanded to accommodate the growing mass of CCR. [Id. ] It now has a surface area of one hundred and fourteen acres and contains approximately six million cubic yards of CCR. [Id. ] KU switched the sluicing operation from the Main Ash Pond to an Auxiliary Ash Pond in 2008, which was constructed as a lined temporary settling pond until the Main Ash Pond could be expanded again. [Id. ] The Auxiliary Ash Pond is expected to be full by 2019. [Record No. 16, Exhibit 1, 1–1]

Due to surrounding land use, KU determined that further expansion of the CCR waste disposal area would be undesirable. [Record No. 16, p. 3] Instead, KU sought to continue to use the land occupied by the Main Ash Pond for CCR disposal by capping the pond and installing a special waste landfill located physically on top of it. [Record No. 1, ¶ 41] Newly generated CCR waste would be dried and conditioned in a CCR treatment area and then deposited in the landfill. [Id. ; Record No. 16, Exhibit 1, 1–1]

KU submitted a landfill permit application to the Kentucky Division of Waste Management ("KDWM") in 2011, and was required to submit a groundwater assessment plan ("GWAP") as part of the application process. [Record No. 16, p. 3, Exhibit 1] The GWAP was designed to provide a hydrogeologic characterization of the site, evaluate groundwater quality conditions, and assess water quality in the surface water bodies receiving groundwater discharges from the site. [Id. at Exhibit 1, 1–1]

The Sierra Club submitted public comments in opposition KU's landfill application. It argued that the GWAP revealed that the settling ponds were contaminating the groundwater at E.W. Brown and represented a danger to human health and the environment. [Record No. 16, Exhibit 5] The Sierra Club also believed that further study was necessary, in part, because the settling ponds are located over a fractured and permeable karst region which makes the water flow less predictable and the area more vulnerable to contamination. [Id. at 5–6] And despite the limited data, the Sierra Club claimed that initial testing indicated that the groundwater was likely contaminated with boron, sulfate, total dissolved solids ("TDS"), selenium, arsenic, cadmium, lead, and other coal ash metals. [Id. at 7–8]

The Sierra Club also alleged that contaminated groundwater was discharging via a network of springs into Herrington Lake, a major recreational and fishing area. [Id. at 3] As a result, the Sierra Club asked the KDWM to: (i) deny the landfill permit application until the existing contamination was more delineated and a corrective action plan was developed and implemented; and (ii) require KU to construct the landfill elsewhere on-site or off-site. [Id. at 1–2] KDWM reviewed the application, the GWAP, and the public comments, and issued a permit to construct the landfill in July 2014. [Record No. 16, Exhibit 3] However, in response to the Sierra Club's comments, it required KU to submit a groundwater remedial action plan ("GWRAP") before it would issue a permit to operate the landfill. [Record No. 16, p. 4]

The GWRAP noted that groundwater flow through the watershed containing the CCR ponds emerges in the Briar Patch and HQ Springs, which discharge into Herrington Lake at HQ Inlet via HQ Stream. [Record No. 16, Exhibit 1, 2–3, 2–5] Arsenic was detected in Briar Patch and HQ Springs, and concentrations of calcium, chloride, magnesium and sulfate were generally higher in that area. [Id. at 2–7] However, according to the GWRAP, KU's ongoing modifications, including closing and dewatering the Main Ash Pond, capping it with low permeability materials, and converting to dry CCR disposal in the special waste landfill, would help to ameliorate this condition because they would "significantly reduce the amount of contact between water and CCR, and therefore reduce the mobilization of CCR constituents in water with the potential to be discharged to the environment." [Id. at 2–9, 2–10]

Still, the GWRAP noted that "[s]ome flow of natural groundwater through the existing CCR in the Main Pond is expected to continue over time, as the natural flow of water that existed before the Pond was filled with CCR continues into the buried valley." [Id. at 2–10] As a result, KU stated that it would work with the Division of Water "to develop a comprehensive approach to risk management that addresses the totality of surface water impacts from both groundwater and surface water discharges." [Id. at 3–1] In the meantime, it proposed a series of interim remedial actions designed to reduce the total mass of CCR constituents entering Herrington Lake via the groundwater flow system. [Id. ]

The Sierra Club objected to the GWRAP, arguing that "the interim remedial measures ... while all appropriate and necessary, do very little to address the flow of contaminants from the ash ponds into Lake Herrington and in all other directions from the ash ponds." [Record No. 16, Exhibit 10, Attachment 1, p. 11] In its view, KU should have been required to conduct a more complete characterization of the groundwater contamination at the site, and then collect and treat the contaminated water. [Id. ] However, after reviewing the public comments, the KDWM approved the GWRAP in October 2015. [Record No. 16, Exhibit 11]Shortly thereafter, the plaintiffs sent a notice of intent to file a citizen suit under the Clean Water Act ("CWA") to KU, the United States Environmental Protection Agency ("EPA"), and the Kentucky Department of Environmental Protection ("KDEP"), a division of the Kentucky Energy and Environment Cabinet (the "Cabinet"). [Record No. 1, Exhibit A] The notice alleged that KU has discharged and continues to discharge pollutants into the waters of the United States without a permit in violation of the CWA. [Id. at 1] According to the notice, these discharges originate from both the now-buried Main Ash Pond and the Auxiliary Ash Pond, and migrate through groundwater which emerges in HQ and Briar Patch Springs and discharges into HQ Stream, a jurisdictional surface water that flows into Herrington Lake at HQ Inlet. [Id. at 2–3]

The plaintiffs also sent a notice of intent to file a citizen suit under the Resource Conservation and Recovery Act ("RCRA") on October 26, 2016. [Record No. 1, Exhibit C] The RCRA notice alleged that KU's handling, storage, treatment, transportation, and/or disposal of CCR waste at E.W. Brown has resulted in contamination in the ground and surface waters, presenting an imminent and substantial endangerment to human health and the environment. [Id. at 2] It also alleged that KU's remedial actions were inadequate to abate the risk of endangerment because they failed to characterize the full extent of contamination, failed to adequately monitor ground...