Ky. Waterways Alliance v. Ky. Utilities Co.

Decision Date17 May 2021
Docket NumberCivil Action No. 5: 17-292-DCR
Citation539 F.Supp.3d 696
Parties KENTUCKY WATERWAYS ALLIANCE, et al., Plaintiffs, v. KENTUCKY UTILITIES CO., Defendant.
CourtU.S. District Court — Eastern District of Kentucky

Matthew E. Miller, Sierra Club Environmental Law Program, Denver, CO, for Plaintiff Sierra Club.

Benjamin Locke, Earthjustice, New York, NY, Joe F. Childers, Joe F. Childers & Associates, Lexington, KY, Lauren Piette, Pro Hac Vice, Thomas Cmar, Earthjustice, Chicago, IL, for Plaintiffs.

Adrianne C. Strong, Grahmn Morgan, Dinsmore & Shohl LLP, Lexington, KY, Brent A. Rosser, Nash E. Long, III, Hunton Andrews Kurth LLP, Charlotte, NC, Eric J. Murdock, F. William Brownell, Hunton & Williams LLP, Washington, DC, J. Gregory Cornett, Robert J. Ehrler, Travis A. Crump, LG&E and Ku Energy LLC, Louisville, KY, Robert M. Rolfe, Pro Hac Vice, Hunton Andrews Kurth LLP, Richmond, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

Danny C. Reeves, Chief Judge Herrington Lake has spanned parts of Boyle, Mercer, and Garrard Counties since 1925, when the Kentucky Utilities Company ("KU") built the Dix Dam for hydroelectric power generation. Lakes , THE KENTUCKY ENCYCLOPEDIA 532 (John E. Kleber ed., 1992). At the northern end of the lake, next to Dix Dam, sits the E.W. Brown Generating Station, a coal-fired power plant, and the ponds used to dispose of the coal ash it generates. Plaintiffs Kentucky Waterways Alliance ("KWA") and the Sierra Club allege that groundwater discharges from the coal ash ponds at E.W. Brown threaten imminent and substantial environmental harm to Herrington Lake. Defendant KU disputes their account, pointing to ongoing remediation efforts and a lack of reliable evidence of environmental harm.

The following four motions are currently pending for resolution: (1) KWA and the Sierra Club's motion for partial summary judgment, which seeks to establish their standing to sue [Record No. 87]; (2) KU's motion to exclude the expert opinions of Dr. A Dennis Lemly [Record No. 84]; (3) KU's motion to exclude the expert opinions of Dr. David M. Janz [Record No. 85]; and (4) KU's motion for summary judgement [Record No. 86]. For the reasons explained below, both summary judgment motions will be granted. Further, the motion to exclude Janz's testimony will be granted, while the motion to exclude Lemly's testimony will be granted, in part.

I.
A. Factual Background

KU owns and operates the E.W. Brown Generating Station, located near Herrington Lake. [Record No. 16-1] E.W. Brown is a coal-fired power plant and it relies on the 2,400-acre Herrington Lake for water to support its power generation. [Id. ] In addition to providing water to KU, Herrington Lake serves a recreational purpose. People reside along and visit its shores, and several species of fish—including bluegill, largemouth bass, catfish, and crappie, among others—live within its waters. [Record No. 16-16, p. 22] Fishing, boating, and swimming are among the activities enjoyed at Herrington Lake. [Record Nos. 87-10; 87-13]

KWA and the Sierra Club allege that E.W. Brown threatens environmental harm in portions of Herrington Lake. As the plant generates power, it also generates ash—known as coal combustion residuals ("CCRs")—during the coal burning process. [Record No. 16-16, p. 9] Two kinds of CCRs are produced by the plant: fly ash (lightweight ash not implicated in this matter) and bottom ash (larger coal ash particles that collects at the bottom of furnaces). [Id. ] The ash must be removed and disposed of to make room for new coal in a furnace. [Id. at 9-10] The disposal of that ash is at issue in this case.

KU disposes of the ash using a sluice system. The process combines the ash with water and transports the mixture to an ash pond, where it sinks. From the 1950s until 2008, KU directed the ash to the Main Ash Pond. [Record No. 16-16, p. 9–10] It covers 114 acres and contains an estimated six million cubic yards of coal ash. [Record No. 1, ¶ 40] KU also uses the 29.9 acre Auxiliary Ash Pond for this purpose. [Id. ] The Main Ash Pond is now closed, and the Auxiliary Ash Pond is in the process of being closed. [Record Nos. 16-2; 16-19] Coal ash is also stored in a landfill which was constructed in 2016 on top of the Main Ash Pond. [Record No. 16-16, p. 10]

Finally, KU discharges wastewater directly into the lake.1 Curds Inlet—adjacent to E.W. Brown—is the destination for this wastewater. Kentucky Pollution Discharge Elimination System ("KPDES") permits allow wastewater to be discharged directly into Curds Inlet in limited amounts using Outfall 001. [Record No. 16-7] Per Cabinet reports, an average of 5.14 million gallons of wastewater per day flowed from Outfall 001 in October 2019. [Record No. 84-9, at 5] It was eliminated on November 1, 2019. [Record No. 86, p. 11]

Both Kentucky and the U.S. Environmental Protection Agency set regulatory standards for discharges from the ash ponds, particularly regarding any selenium impacts. [See Record Nos. 86-3 (2016 EPA Criterion); 86-4 (2013 Kentucky Water Quality Standards).] And when a May 2016 test of fish tissue "identified concentrations of selenium above Kentucky's recently approved selenium water quality standard for protection of aquatic life from chronic impacts," the Kentucky Energy and Environment Cabinet ("the Cabinet") took regulatory action. [Record No. 16-15, ¶ 8] After issuing a notice of violation of regulatory standards to KU, the Cabinet entered into an Agreed Order with KU in January 2017. [Id. at ¶¶ 11–12]

Specifically, KU agreed to: (1) continue implementing a previously agreed-upon groundwater assessment plan and Main Ash Pond closure plan; (2) continue operating approved remedial measures; (3) produce a corrective action plan regarding assessing health and ecological risks, assessing the sources of selenium impacts, and considering remedial actions; and (4) produce a corrective action plan for closure of the Auxiliary Pond. [Id. at ¶¶ 13–15] KU also paid a civil penalty of $25,000 for the alleged violations. [Id. at ¶ 22] KU and its consultant Ramboll have since taken several additional steps.

Corrective Action Plan I (August 2017). KU's first corrective action plan proposed an assessment of selenium sources, a human health risk assessment, an ecological risk assessment, and evaluation and implementation of additional remedial actions. [Record No. 16-16] The proposals were intended to lead to future remediation efforts. [Record No. 16-20] The Cabinet approved KU's first plan in March 2018. [Record No. 86-6]

Corrective Action Plan II (June 2017). The second plan was submitted in June 2017. [Record No. 16-19] It proposed closing the Auxiliary Pond, eliminating Outfall 001, working to meet EPA effluent limitation guidelines, and implementing controls for water quality standard compliance. [Id. ] Phase I Findings & Phase II Plan (April 2018). Around 200 fish samples were collected from October to December 2017 during Phase I. [Record No. 86-7, p. 4] Ramboll concluded that fish tissue concentrations were below Kentucky's whole-body criterion and EPA's ovary criterion. [Id. at 5] It further proposed efforts "to fill data gaps identified" in Phase I sampling during Phase II and to address deformities identified in Dr. A. Dennis Lemly's study (discussed in further detail below). [Id. at 6] Those sampling efforts would focus on Curds Inlet and areas nearby E.W. Brown. [Id. ] The Cabinet conditionally approved the Phase II plan in June 2018.2 [Record No. 86-8]

Phase II Results & Report (June 2019). Phase II's results were presented to the Cabinet in January 2019. [Record No. 86-10] Ramboll evaluated 11 composite samples from 30 adult fish for whole-body selenium concentrations, 12 composite samples from 700 young-of-the-year bluegill for whole-body selenium concentrations, and assessed around 3,600 young-of-the-year fish for deformities. [Record No. 86-9] All adult samples again showed whole-body selenium concentrations below regulatory criteria. [Id. at 8] Additionally, Ramboll observed a deformity rate of 0.97%. [Id. at 13] Ramboll's report on the Phase II results is pending approval by the Cabinet.

KWA and the Sierra Club allege that these efforts are insufficient. They contend that discharge locations beneath the waterline of Herrington Lake continue to pollute its waters. [Record No. 89-1] Additionally, they assert that KU has failed to investigate the area to determine whether undiscovered discharges occur beneath the waterline. [Record No. 89, p. 4] Expert evidence from Dr. Ralph Ewers concluded that these underwater discharges are likely occurring and are capable of detection, if additional studies are conducted. [See Record Nos. 89-1; 89-4; 89-5; 89-6; 87-4.] In their view, the regulatory actions have failed to address these discharges and clean up existing pollutants.

B. Procedural Background

After providing the required notice to regulatory agencies, Plaintiffs KWA and the Sierra Club filed their Complaint on July 12, 2017, seeking declaratory and injunctive relief. [Record No. 1] They allege that "toxic constituents of CCR have contaminated groundwater, surface water, and underlying sediments in the vicinity of the plant, including in Herrington Lake and nearby streams." [Id. at ¶ 3] And they further argue that KU's waste disposal "may present an imminent and substantial endangerment to human health and the environment," giving rise to liability under the Resource Conservation and Recovery Act ("RCRA").3 [Id. at ¶¶ 79-85] The plaintiffs seek a declaration that KU is in violation of RCRA and an injunction "ordering that KU take all actions necessary to eliminate the endangerment to health and the environment" near E.W. Brown. [Id. at pp. 21–22]

This Court dismissed KWA and the Sierra Club's claims on jurisdictional grounds in December 2017. [Record No. 31] However, that determination was reversed in part by the United States Court of Appeals for the Sixth Circuit in 2018. Ky....

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