Ky. Waterways Alliance v. Kentucky Util. Co.
905 F.3d 925
6th Cir.2018Background
- Kentucky Utilities (KU) stores coal combustion residuals (CCR/coal ash) in two unlined surface impoundments at E.W. Brown adjacent to Herrington Lake; plaintiffs (Sierra Club, Kentucky Waterways Alliance) allege ash leaches into groundwater and then into the lake, elevating selenium and harming fish.
- KU sought and obtained state permits to convert/operate an ash landfill; Kentucky Department of Environmental Protection (KDEP) required groundwater monitoring and later issued an Agreed Order and Corrective Action Plan (CAP) addressing contamination.
- Plaintiffs served notice and sued under the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA), alleging discharges to navigable waters via groundwater and an imminent/substantial endangerment under RCRA.
- The district court dismissed both claims: it held the CWA did not cover pollution reaching surface waters through groundwater, and it found Plaintiffs lacked standing/jurisdiction on the RCRA claim because the state was addressing the contamination.
- Sixth Circuit affirms dismissal of the CWA claim (holding the CWA does not reach pollutant transfers to surface waters via groundwater) but reverses dismissal of the RCRA claim (holding Plaintiffs satisfied RCRA citizen-suit requirements and federal courts retain jurisdiction).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CWA reaches pollutants that reach navigable waters via groundwater (hydrological-connection / conduit theories) | CWA covers additions to navigable waters from a point source even if pollutants travel through groundwater en route; karst conduits or groundwater can functionally connect point-source releases to navigable waters. | CWA point-source definition requires a "discernible, confined, and discrete conveyance"; groundwater (and karst) is diffuse and not a point source; CWA regulates discharges "to navigable waters from any point source," which requires the conveyance to be a point source—so groundwater-mediated transfers fall outside CWA. | Affirmed dismissal: CWA does not extend liability to surface-water pollution that reaches navigable waters via groundwater; neither groundwater nor karst here qualifies as a point source, and the hydrological-connection theory is rejected. |
| Whether Plaintiffs may proceed with a RCRA citizen suit given state action (standing/jurisdiction and abstention) | Plaintiffs met RCRA's procedural notice and substantive imminent-and-substantial-endangerment requirements; state action (Agreed Order/CAP) does not bar federal suit because EPA/state have not taken one of the statutorily specified actions that trigger the diligent-prosecution bar. | KU argued the district court lacked jurisdiction because Kentucky was actively addressing the contamination and Burford abstention or the diligent-prosecution bar should preclude the federal suit. | Reversed dismissal: Plaintiffs met RCRA's citizen-suit prerequisites; district court erred to dismiss for lack of jurisdiction; Burford abstention inappropriate where Congress specified when state action bars federal suits. |
Key Cases Cited
- Consumers Power Co. v. United States, 862 F.2d 580 (6th Cir. 1988) (articulates five-element CWA framework for discharge claims)
- Rapanos v. United States, 547 U.S. 715 (2006) (plurality discussion of CWA scope and distinction between additions "to" navigable waters and direct conveyances)
- Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018) (accepted hydrological-connection theory: CWA can reach pollutants reaching navigable waters via groundwater with a direct connection)
- Hawai'i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018) (adopted hydrological-connection approach for CWA liability where groundwater transported pollutants to ocean)
- Sierra Club v. Va. Elec. & Power Co., 903 F.3d 403 (4th Cir. 2018) (held coal ash ponds leaking to groundwater that reaches navigable waters did not constitute a point-source discharge under the CWA)