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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).