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Little v. Louisville Gas And Electric Co.

United States District Court, W.D. Kentucky, Louisville Division

February 13, 2017

KATHY LITTLE; GREG WALKER and DEBRA L. WALKER, husband and wife; RICHARD EVANS; and PHILLIP WHITAKER and FAYE WHITAKER, husband and wife; on behalf of themselves and all others similarly situated PLAINTIFFS
v.
LOUISVILLE GAS AND ELECTRIC COMPANY and PPL CORPORATION DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          JOSEPH H. MCKINLEY CHIEF JUDGE.

         This matter is before the Court on the motion for partial summary judgment by Defendants Louisville Gas and Electric Company (“LG&E”) and PPL Corporation (“PPL”). [DN 93]. Fully briefed, this matter is ripe for decision. For the following reasons, the motion is GRANTED.

         I. Background

         This case involves the operation of the Cane Run Generating Station in southwestern Louisville by LG&E. The Plaintiffs allege that beginning in 2008, they and their neighbors began noticing a persistent film of dust that coated their homes and properties. (See Compl. [DN 1] ¶¶ 2-6.) They allege that the Cane Run power plant emits dust and coal ash into the air and onto their homes and properties several times a month. (Id. ¶¶ 52-57.) The Plaintiffs state that the dust and coal ash have been emitted from: (1) Cane Run's emission stacks, through which solid particulates are released during the coal burning process; and (2) Cane Run's sludge plant, where the ash is mixed with a cementing agent. (Id. ¶¶ 32, 36-39.) Further, the Plaintiffs state that ash, dust, and other coal combustion byproducts blow onto their properties because they are placed in an insufficiently-covered landfill. (Id. ¶¶ 42-43.) The Plaintiffs allege that the ash, dust, and coal combustion byproducts are not only annoying, but they are also composed of dangerous elements, including arsenic, silica, lead, and chromium. (Id. ¶ 1.)

         Louisville's Air Pollution Control District (“APCD”) is the agency charged with enforcing environmental regulations in Jefferson County. (Id. ¶ 58.) Pursuant to this authority, the APCD issued LG&E an operating permit for the Cane Run Generating Station, as is required under Title V of the federal Clean Air Act (“CAA”) Amendments of 1990. (See 2002 Permit [DN 1-4] at 21-93.) This permit became effective on October 30, 2002, and was set to expire on October 30, 2007. (Id. at 21.) On April 30, 2007, LG&E submitted an application for renewal of that permit, and the renewed permit was issued on November 18, 2014. (See 2014 Permit [DN 94-1] at 5.) The Cane Run Generating Station was operational throughout this time period.

         On September 6, 2013, the Plaintiffs provided a Notice of Intent to Sue to the Defendants and the appropriate government agencies. The Plaintiffs filed this action more than 90 days from when the notices were delivered. (Notice Letter [DN 1-2].) In the action, the Plaintiffs alleged violations of the CAA and Resource Conservation and Recovery Act (“RCRA”). They also brought state-law claims of nuisance, trespass, negligence, negligence per se, and gross negligence. In a previous order, this Court dismissed all claims under the RCRA and all claims under the CAA except one: a claim for violating the CAA by operating the Cane Run Generating Station without a Title V operating permit. [DN 49]. The Defendants now move for summary judgment only as to the CAA Title V permit claim.

         II. Standards of Review

         Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

         Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely show that there is some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the non-moving party to present specific facts showing that a genuine factual issue exists by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute[.]” Fed.R.Civ.P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.

         III. Discussion

         A. Controlling Law

         Title V of the CAA Amendments of 1990 “requires those who operate major stationary sources of air pollution to obtain operating permits . . .” Ohio Pub. Interest Research Grp., Inc. v. Whitman, 386 F.3d 792, 794 (6th Cir. 2004) (citations omitted). Under Title V and the federal regulations promulgated under it, see 40 C.F.R. §§ 70.1 et seq., “[e]ach state is required to develop, and submit for EPA approval, an operating permit program that meets the requirements of Title V . . .” Whitman, 386 F.3d at 794 (citing 42 U.S.C. § 7661a(d)(1)). To meet this requirement, Kentucky has created an air pollution control district in every county, with each district responsible for issuing all permits required under Title V. KRS §§ 77.010, 77.195. The Louisville Metro/Jefferson County APCD, which is governed by its Air Pollution Control Board, has enacted Regulation 2.16, “Title V Operating Permits, ” which establishes the procedures for obtaining or renewing a Title V permit. (See Regulation 2.16 [DN 94-1] at 255-82.) While there are federal statutes and regulations that also govern the issuance or renewal of Title V permits, these statues and regulations are largely identical in content to the requirements of Regulation 2.16 as it pertains to the issues in this case. Compare 42 U.S.C. § 7661b(d) with Regulation 2.16 § 5.2.1.1 (failure to have permit is no violation if source has submitted a timely application for renewal that has yet to receive action by the entity entrusted with issuing permits). Any substantive distinctions between the federal and local laws and regulations that affect the Court's decision will be noted.

         B. Analysis

         There is very little factual dispute as to the permitting process for the Cane Run Generating Station: the parties agree on when LG&E's 2002 permit expired, when the application for renewal was submitted, and when the new permit was issued. However, the legal significance of those facts and certain intervening events are contested, meaning that the Court ...


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