Kentucky Waterways Alliance v. Kentucky Utilities Co.

          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, 19 U.S. 315');">319 U.S. 315 (1943). The defendant also contends that the plaintiff's CWA claim fails as a matter of law. [Record No. 16');">16');">16');">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');">16');">16');">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');">16');">16');">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');">16');">16');">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');">16');">16');">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');">16');">16');">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');">16');">16');">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');">16');">16');">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');">16');">16');">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');">16');">16');">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');">16');">16');">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');">16');">16');">16. [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 and surface water quality, and failed to halt, abate, or otherwise adequately address the ongoing contamination. [Id. at 4]

         After receiving the RCRA notice, the Cabinet reviewed the available data regarding the ground and surface water quality near E.W. Brown and conducted additional surface water testing. [Record No. 16');">16');">16');">16, Exhibit 15, ¶¶ 7-8] It determined that water samples collected from HQ and Briar Patch Springs identified selenium levels above Kentucky's selenium water criterion, and fish samples collected from Herrington Lake adjacent to HQ Inlet contained selenium in excess of Kentucky's whole body fish tissue selenium criteria. [Record No. 16');">16');">16');">16, Exhibit 14] Based on these results, the Cabinet issued a notice of violation (“NOV”) to KU alleging that E.W. Brown “directly or indirectly discharged, or caused or permitted to be discharged, a pollutant or substance that has caused or contributed to pollution of a water of the Commonwealth” in violation of Kentucky Revised Statutes (“KRS”) 224.70-110, and aesthetically or otherwise degraded surface waters in violation of Kentucky Administrative Regulations (“KAR”) Title 401, Chapter 10:031, Section 2. [Id.]

         KU and the Cabinet entered into an Agreed Order on January 30, 2017, to resolve the NOV and to “address any threat or potential threat to human health and the environment associated with management and storage of CCR at [the] E.W. Brown Station.” [Record No. 16');">16');">16');">16, Exhibit 15, ¶ 12] The Agreed Order required KU to continue to implement the GWAP, the GWRAP, and the Main Ash Pond Closure Plan previously approved by the Cabinet, and imposed a $25, 000 civil penalty for the alleged violations. [Id. ¶¶ 13, 22] Additionally, KU was required to submit two Corrective Action Plans (“CAPs”) “detailing the steps KU has taken and will take to address the matters raised in this Agreed Order and the notice of violation dated January 11, 2017.” [Id. ¶¶ 13-15] The first CAP was to investigate the risks associated with the contamination, its potential sources, and to consider additional remedial actions. [Id. ¶ 14] The second CAP was to address the discharge of ash transport water at the Auxiliary Ash Pond. [Id.] The CAPs require the Cabinet's approval, and are subject to a thirty day public comment period. [Id. ¶¶ 16');">16');">16');">16, 19]

         KU submitted its CAP addressing the groundwater contamination on April 14, 2017, which called for groundwater studies consisting of field sampling and site characterization, a human health risk assessment, and an ecological risk assessment. [Record No. 16');">16');">16');">16, Exhibit 16');">16');">16');">16; id. at p.12 n.7] The proposed studies may last through 2019, at which time KU would evaluate and implement remedial actions as warranted. [Record No. 16');">16');">16');">16, Exhibit 16');">16');">16');">16, p. 40-42]

         The plaintiffs filed this action on July 27');">27, 2017, alleging violations of the CWA and the RCRA. [Record No. 1] The plaintiffs' CWA claim alleges that KU is discharging and has discharged pollutants from the Main Ash Pond and the Auxiliary Ash Pond to HQ Stream, a navigable water, without a permit, causing irreparable harm to the plaintiffs' members and their communities. [Id. ¶¶ 70-78] These pollutants allegedly include arsenic, lead, selenium, and cadmium, which pose well-documented environmental and health risks. [Id. ¶ 43] The plaintiffs' RCRA claim contends that KU has contributed and is contributing to the handling, storage, treatment, transportation, or disposal of solid waste at E.W. Brown that may present an imminent and substantial endangerment to human health and the environment. [Id. ¶¶ 79-85] The plaintiffs claim that the remedial steps taken by KU are inadequate, and that their members will suffer irreparable harm unless KU eliminates the endangerment. [Id.]

         KU argues that the Complaint should be dismissed because: (i) the Cabinet is already redressing the harms alleged in the Complaint, depriving the plaintiffs of standing to bring an RCRA claim; (ii) Burford abstention applies because these matters are the subject of the Cabinet's ongoing regulatory proceedings; and (iii) the plaintiffs' CWA claim fails as a matter of law because the movement of contaminants from ...