Little v. Louisville Gas & Elec. Co.

Decision Date16 July 2014
Docket NumberCivil Action No. 3:13–CV–01214–JHM.
CourtU.S. District Court — Western District of Kentucky
PartiesKathy LITTLE ; Greg Walker and Debra L. Walker, husband and wife; Richard Evans; and Phillip Whitaker and Faye Whitaker, husband and wife; on behalf of themselves and all others similarly situated, Plaintiffs v. LOUISVILLE GAS AND ELECTRIC COMPANY and PPL Corporation, Defendants.

Ari Y. Brown, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Seattle, WA, Charles L. Williams, Williams & Skilling, P.C., Richmond, VA, Jeffrey M. Sanders, Covington, KY, Michael D. Donovan, Noah Axler, Donovan Axler, LLC, Philadelphia, PA, for Plaintiffs.

Brent A. Rosser, Nash E. Long, III, Sarah A. Santos, Hunton & Williams LLP, Charlotte, NC, F. William Brownell, Hunton

& Williams LLP, Washington, DC, Jason Renzelmann, Sheryl G. Snyder, Frost Brown Todd LLC, Louisville, KY, Richard C. Larkin, Bingham Greenebaum Doll LLP, Lexington, KY, Robert M. Rolfe, Hunton & Williams LLP, Richmond, VA, for Defendants.

Memorandum Opinion and Order

JOSEPH H. McKINLEY, Chief Judge.

This matter is before the Court on the Motion to Dismiss [DN 29] of Louisville Gas and Electric Company (LG & E) and PPL Corporation (PPL). Fully briefed, this matter is ripe for decision. For the following reasons, the motion is GRANTED in part and DENIED in part.

I. Background

This case involves the operation of the Cane Run power plant in southwestern Louisville. The Plaintiffs allege that beginning in 2008, they and their neighbors began noticing a persistent film of dust that coated their homes and properties. (See Compl. [DN 1] ¶¶ 2–6.) They allege that the Cane Run power plant emits dust and coal ash into the air and onto their homes and properties several times a month. (Id. ¶¶ 52–57.) The Plaintiffs state that the dust and coal ash have been emitted from: (1) Cane Run's emission stacks, through which solid particulates are released during the coal burning process; and (2) Cane Run's sludge plant, where the ash is mixed with a cementing agent. (Id. ¶¶ 32, 36–39.) Further, the Plaintiffs state that ash, dust, and other coal combustion by-products blow onto their properties because they are placed in an insufficiently-covered landfill. (Id. ¶¶ 42–43.) The Plaintiffs allege that the ash, dust, and coal combustion by-products are not only annoying, but also, they are composed of dangerous elements, including arsenic, silica, lead, and chromium. (Id. ¶ 1.)

Louisville's Air Pollution Control District (“APCD”) is the agency charged with enforcing environmental regulations in Jefferson County. (Id. ¶ 58.) In 2010, the APCD began investigating complaints about Cane Run. As a result of the investigation, the APCD issued several Notices of Violation (“NOVs”) to LG & E concerning particulate emissions and the odors produced by Cane Run. Specifically, in July of 2011, the APCD issued an NOV, finding that LG & E allowed fly ash particulate emissions to enter the air and be carried beyond its property line. (See id. ¶ 62.) Four months later, in November of 2011, the APCD issued a second NOV, detailing more violations involving the emission of dust and ash from Cane Run. (Id. ¶ 63.) Subsequently, between July of 2012 and August of 2013, the APCD issued four additional NOVs. (Id. ¶¶ 64–69.) These NOVs were resolved by an administrative proceeding before Louisville's Air Pollution Control Board, which resulted in an Agreed Board Order. (See Ag. Bd. Order No. 13–07 [DN 29–2].)

The Agreed Board Order required LG & E to implement, and comply with, a “Plant–Wide Odor, Fugitive Dust, and Maintenance Emissions Control Plan.” (Id. at 4.) In the Agreed Board Order, the Air Pollution Control Board specifically found that: (1) the required measures would “fully address” the alleged violations cited in the NOVs; (2) LG & E “demonstrated compliance at the Cane Run Generating Station” by submitting to the Order's control plan; and (3) the proposed resolution in the Agreed Board Order was “reasonable and adequate under the circumstances.” (Id.) After a public hearing on November 20, 2013, the APCD adopted the Agreed Board Order.

On September 6, 2013, the Plaintiffs provided a Notice of Intent to Sue (“NOI”) to the Defendants, the APCD's Director, the EPA Administrators, the Director of Kentucky's Division of Waste Management, the Commissioner of Kentucky's Department of Environmental Protection, and the U.S. Attorney General. The Plaintiffs filed this action more than 90 days from when the notices were delivered. (Notice Letter [DN 1–2].) In the action, the Plaintiffs allege violations of the Clean Air Act (“CAA”) and Resource Conservation and Recovery Act (“RCRA”). They also bring state-law claims of nuisance, trespass, negligence, negligence per se, and gross negligence. LG & E and PPL argue that the claims must be dismissed under Fed.R.Civ.P. 12(b)(1) and (b)(6).

II. Standards of Review

Fed.R.Civ.P. 12(b)(1) provides that a party may file a motion asserting “lack of subject-matter jurisdiction.” Subject matter jurisdiction is “a threshold determination.” Am. Telecom Co. v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir.2007) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ). “A Rule 12(b)(1) motion can either attack the claim of jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists.” DLX, Inc. v. Ky., 381 F.3d 511, 516 (6th Cir.2004). “If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). A district court has wide discretion to allow and review affidavits and other documents to resolve disputed jurisdictional facts. Doing so does not convert the motion to dismiss to a Rule 56 summary judgment motion where it does not impact the merits of the plaintiff's claim. See Gentek Bldg. Prods., Inc. v. Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir.2007).

Upon a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), a court “must construe the complaint in the light most favorable to plaintiff[ ],” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir.2007) (citation omitted), accepting all of the plaintiff's allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Under this standard, the plaintiff must provide the grounds for its entitlement to relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A plaintiff satisfies this standard when it “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A complaint falls short if it pleads facts that are merely “consistent with a defendant's liability” or if the facts do not “permit the court to infer more than the mere possibility of misconduct.” Id. at 678–79, 129 S.Ct. 1937. The allegations must ‘show[ ] that the pleader is entitled to relief.’ Id. at 679, 129 S.Ct. 1937 (quoting Fed.R.Civ.P. 8(a)(2) ).

III. Discussion

At its core, the Plaintiffs' complaint alleges that LG & E and PPL have excessively emitted dust, ash, and other coal combustion by-products from the Cane Run plant. Generally, excessive emission claims are covered under the Clean Air Act (“CAA”). Thus, the Court will first analyze the Plaintiffs' CAA claims. Thereafter, the Court will turn its attention to the Plaintiffs' Resource Conservation and Recovery Act (“RCRA”) claims and their state-law claims.

A. Count III: Clean Air Act (“CAA”) Claims

In Count III of their complaint, the Plaintiffs allege four types of CAA claims, including claims for: (1) past violations based on the issued NOVs (Compl. [DN 1] ¶ 189); (2) “substantially similar violations” that are “continuing on at least a weekly basis” (id. ¶ 193); (3) a violation of the 20% opacity standard in Cane Run's Title V operating permit (id. ¶ 195); and (4) operating the Cane Run plant after LG & E's Title V operating permit expired. (Id. ¶ 194.) LG & E and PPL argue that these claims must be dismissed. The Court considers each type of CAA claim in turn.

Past Violations based on Issued NOVs. In part, the Plaintiffs base their CAA claims on issued NOVs which were addressed by the APCD in its Agreed Board Order. LG & E and PPL argue that the Plaintiffs cannot sue for violations based on these issued and addressed NOVs because: (1) the Agreed Board Order renders the claims non-redressable; (2) the claim preclusion doctrine bars the Plaintiffs from re-litigating the claims; (3) this Court lacks jurisdiction to address the ¶ 189(f) and ¶ 189(r) claims, as they are based on an alleged violation of Reg. 1.13 § 2, which is not federally enforceable; and (4) this Court lacks jurisdiction to address the claims in ¶ 189(b)-(c), ¶ 189(g)-(h), and ¶ 189(m)-(o ), as the regulations on which they are based do not constitute “emission standards or limitations” enforceable under the CAA's citizen-suit provision.

LG & E and PPL first argue that the Agreed Board Order renders the Plaintiffs' ¶ 189 claims non-redressable. To establish standing, a plaintiff must show that the injury will be redressed by the relief sought. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). LG & E and PPL argue that the Plaintiffs cannot make this showing, as the alleged CAA violations in ¶ 189 of the complaint have already been resolved. According to them, the Plaintiffs base the ¶ 189 claims solely on NOVs that...

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  • Little v. Louisville Gas & Elec. Co., Civil Action No. 3:13–CV–01214–JHM.
    • United States
    • U.S. District Court — Western District of Kentucky
    • July 17, 2014
    ...33 F.Supp.3d 791Kathy LITTLE; Greg Walker and Debra L. Walker, husband and wife; Richard Evans; and Phillip Whitaker and Faye Whitaker, husband and wife; on behalf of themselves and all others similarly situated, Plaintiffsv.LOUISVILLE GAS AND ELECTRIC COMPANY and PPL Corporation, Defendant......

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