33 F. Supp. 3d 791
W.D. Ky.2014Background
- Neighbors allege since ~2008 persistent coal dust/ash from LG&E’s Cane Run plant, containing toxic elements, coating properties and entering air and stormwater. APCD issued multiple Notices of Violation (2010–2013) that were resolved by an Agreed Board Order requiring a Plant‑Wide Odor, Fugitive Dust, and Maintenance Emissions Control Plan.
- Plaintiffs served a Notice of Intent to Sue (NOI) in Sept. 2013 and filed suit more than 90 days later asserting CAA and RCRA claims plus state-law nuisance, trespass, negligence, negligence per se, and gross negligence; defendants are LG&E and parent PPL.
- Key relief sought: declaratory relief, injunctive relief (including zero‑tolerance emissions and reducing the ash landfill), civil penalties, and damages.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1) and (b)(6), arguing lack of standing/redressability, insufficient pre‑suit notice, statutory inapplicability or non‑enforceability, preclusion by administrative orders/permits, and that PPL lacks direct operational liability.
- Court disposition: motion GRANTED in part and DENIED in part — surviving claims are state‑law tort claims and the CAA claim alleging operation without a valid Title V permit; numerous CAA and RCRA claims dismissed for redressability, inadequate NOI, non‑applicability, or preclusion.
Issues
| Issue | Plaintiffs' Argument | Defendants' Argument | Held |
|---|---|---|---|
| CAA claims based on past NOVs resolved by Agreed Board Order | NOVs show violations; citizen suit appropriate | Agreed Board Order remedied those violations so federal court cannot redress (no standing/redressability) | Dismissed — past NOV‑based CAA claims not redressable because agency order provided relief |
| CAA claims for substantially similar ongoing violations (weekly) — relief: declaratory, civil penalties, injunction | Alleged continuing/intermittent violations warrant citizen suit and penalties; Agreed Board Order did not address all ongoing conduct | Lack standing, inadequate NOI, and claims improperly seek injunctions second‑guessing agency remedy | Declaratory claims dismissed; civil‑penalty claims dismissed for failure of NOI; injunctive claims dismissed as non‑redressable where agency plan addressed issue |
| Opacity (20%) claim under Title V | Plant regularly exceeds 20% opacity at stacks/silo/SPP | NOI lacks specific dates/points; plaintiffs lack standing | Opacity claim dismissed for inadequate NOI (no specific emission point or dates) |
| CAA claim for operating without a valid Title V permit (expired in 2007) | Plaintiffs allege operation despite expiration; application timeliness/ completeness disputed | Defendants claim timely renewal application was filed so no violation under 42 U.S.C. § 7661b(d) | Survives — at pleading stage allegations suffice; dismissal denied (fact issue for later) |
| RCRA § 6972(a)(1)(A) claims based on Kentucky special‑waste regs and state performance standards | State regulations govern coal combustion residuals; RCRA Subtitle D applies so citizen suit available | Those state rules are not "effective pursuant to" RCRA (no EPA approval) so not enforceable in RCRA citizen suit | Dismissed to extent based on 401 KAR Ch. 45 and 401 KAR 30:031 — not effective pursuant to RCRA |
| RCRA claims under 40 C.F.R. § 258 / 401 KAR Ch. 48 (landfill cover/air) | Cane Run landfill is a municipal/covered landfill receiving industrial solid waste (coal ash) so regs apply | Landfill is a ‘‘special waste’’ site (not municipal) and regs do not apply; NOI did not cite these provisions | Dismissed — regulations inapplicable and insufficiently noticed |
| RCRA § 6972(a)(1)(B) imminent & substantial endangerment claim | Handling of coal ash creates imminent/substantial endangerment warranting injunctive relief | Claim improperly collaterally attacks permits and agency orders; Greenpeace and similar authority bar such suits | Dismissed — collateral attack on permits/agency determinations; injunctive and penalty relief under Count II dismissed |
| Liability of parent PPL | Parent controls/operates Cane Run with LG&E; allegation of corporate control suffices | Complaint lacks specific allegations that PPL itself violated permits or managed wastes | Survives at pleading stage — court finds allegations sufficient to infer PPL exercised control/supervision |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (standing/redressability limits for citizen suits)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (civil penalties can redress ongoing violations)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (citizen suits require allegation of continuous or intermittent violations)
- Ellis v. Gallatin Steel Co., 390 F.3d 461 (courts should not second‑guess agency remedies embodied in consent decrees)
- Jones v. City of Lakeland, Tenn., 224 F.3d 518 (administrative orders are not equivalent to a "civil action in court" for CAA preclusion provision)
- Greenpeace, Inc. v. Waste Techs. Indus., 9 F.3d 1174 (RCRA § 6972 suits cannot collaterally attack properly issued permits)
- Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (federal common-law nuisance displaced by CAA; preemption analysis relevant)
- Ouellette v. New York, 479 U.S. 481 (CWA context: source‑state law may survive; preemption analysis for state claims)
- Her Majesty the Queen v. City of Detroit, 874 F.2d 332 (Sixth Circuit: CAA savings clause preserves state regulation/enforcement)
- Bell v. Cheswick Generating Station, 734 F.3d 188 (Third Circuit: CAA does not preempt state common‑law claims under source‑state law)
- Merrick v. Diageo Americas Supply, Inc., 5 F. Supp. 3d 865 (recent Kentucky/W.D. Ky. decision holding CAA does not preempt state common‑law tort claims)