trending Market Intelligence /marketintelligence/en/news-insights/trending/oreapnilf1po10ypdz-xda2 content
Log in to other products

Login to Market Intelligence Platform

 /


Looking for more?

Contact Us

Request a Demo

You're one step closer to unlocking our suite of comprehensive and robust tools.

Fill out the form so we can connect you to the right person.

If your company has a current subscription with S&P Global Market Intelligence, you can register as a new user for access to the platform(s) covered by your license at Market Intelligence platform or S&P Capital IQ.

  • First Name*
  • Last Name*
  • Business Email *
  • Phone *
  • Company Name *
  • City *
  • We generated a verification code for you

  • Enter verification Code here*

* Required

Thank you for your interest in S&P Global Market Intelligence! We noticed you've identified yourself as a student. Through existing partnerships with academic institutions around the globe, it's likely you already have access to our resources. Please contact your professors, library, or administrative staff to receive your student login.

At this time we are unable to offer free trials or product demonstrations directly to students. If you discover that our solutions are not available to you, we encourage you to advocate at your university for a best-in-class learning experience that will help you long after you've completed your degree. We apologize for any inconvenience this may cause.

In This List

6th Circuit rejects Kentucky Utilities' attempt to nix coal ash claims

Q2: U.S. Solar and Wind Power by the Numbers

Essential Energy Insights - September 17, 2020

Essential Energy Insights September 2020

Rate case activity slips, COVID-19 proceedings remain at the forefront in August


6th Circuit rejects Kentucky Utilities' attempt to nix coal ash claims

A federal appeals court will not reconsider its ruling that a district court has jurisdiction to hear claims that Kentucky Utilities Co. is violating solid waste regulations by allowing toxic coal ash pollution to seep into waterways.

The U.S. Court of Appeals for the 6th Circuit on Nov. 26 denied Kentucky Utilities Co.'s petition for a rehearing en banc, or before all active judges, effectively sending a lawsuit concerning coal ash pollution at the company's E.W. Brown coal-fired power plant back to the U.S. District Court for Eastern Kentucky.

Coal ash is a byproduct of burning the fossil fuel for electricity, and it is generally stored in dry landfills or wet settling ponds known as ash basins. The district court had rejected claims by a coalition of environmental groups that the Clean Water Act applied to pollution seeping from the E.W. Brown facility through hydrologically connected groundwater into nearby Herrington Lake.

The 6th Circuit agreed with that judgment on appeal, finding in a 2-1 decision that the Clean Water Act did not apply because groundwater does not meet the law's definition of a "point source." However, the three-judge panel unanimously reversed the district court's finding that it lacked jurisdiction to hear a citizen suit brought by plaintiffs under the federal Resource Conservation and Recovery Act, or RCRA.

"The district court had jurisdiction to hear plaintiffs' RCRA claim and erred in holding otherwise," Judge Richard Suhrheinrich wrote in Kentucky Waterways Alliance v. Kentucky Utilities (No. 18-5115). In doing so, he noted that the U.S. Environmental Protection Agency's 2015 Coal Combustion Residuals rule established technical requirements for landfills and ash basins under a subsection of the statute.

Led by the Kentucky Waterways Alliance, the environmental groups alleged in their original RCRA complaint that remedial steps taken by Kentucky Utilities including draining and capping an inactive, unlined ash basin at the E.W. Brown site "have been and remain inadequate" to address the coal ash contamination problem.

Kentucky Utilities' "remedial measures do not even purport to address, let alone effectively remediate, the ongoing flow of groundwater through [coal ash] at the site and into surface waters," the groups said.

The environmental plaintiffs are therefore seeking a court order that would require Kentucky Utilities to "take all actions necessary to eliminate the endangerment to health and the environment in the vicinity of the E.W. Brown Station."

In its petition for an en banc rehearing, Kentucky Utilities said it is already working to address the problem. It also contended that the three-judge panel's ruling ignored earlier precedent established by the 6th Circuit that calls for abstention when federal court proceedings would interfere with ongoing remedial efforts undertaken in cooperation with state regulators. The petition was circulated to the full court, but no judge requested a vote on the request for rehearing en banc.

The district court case is Kentucky Waterways Alliance v. Kentucky Utilities (No. 5:17-cv-00292-DCR).