United States District Court, E.D. Kentucky, Central Division, Lexington
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 ...