Pair of Environmental Cases Heard in Sixth Circuit

CINCINNATI (CN) – Two clean water cases involving coal-fired power plants in Kentucky and Tennessee, and their impact on the surrounding environment, were argued before the Sixth Circuit on Thursday.

The Kentucky Waterways Alliance and the Sierra Club sought to overturn a lower court decision that dismissed their citizen enforcement action, while several Tennessee environmental groups argued to uphold a decision in their favor.

Kentucky Utilities Company, or KU, claimed its pollution of groundwater connected to a navigable waterway was not subject to regulation under the Clean Water Act, or CWA, and U.S. District Judge Danny Reeves agreed.

Judge Reeves dismissed the suit brought by the environmental groups and held that the “regulation of groundwater should be left to the states.”

Reeves held that the “ash pond” used by the power company at the E.W. Brown power plant in Harrodsburg for the discharge of pollutants does not qualify as a “point source” under the CWA, which makes it unlawful to discharge pollutants from a point source into navigable waters without a permit.

Attorney Thomas Cmar argued Thursday on behalf of the environmental groups in the Kentucky case,  telling a Sixth Circuit panel that Kentucky Utilities has done nothing to “directly regress the ongoing harms” allegedly sustained at Lake Herrington, including deformities in local fish.

U.S. Circuit Judge Richard Suhrheinrich interrupted, and cut to the chase with an influential question that would affect both cases – whether the ash ponds are point sources under the CWA.

“Yes,” Cmar answered. “Congress intended [the CWA] to include any conveyance … The key factor is the existence of a traceable connection [between the ash ponds and the lake.]”

Cmar argued that the infiltration of contaminants into the lake via underground channels near the ash ponds establishes traceability and grants his clients standing to pursue claims under the CWA.

Attorney Paul Clement argued on behalf of Kentucky Utilities, and flatly contradicted Cmar’s claims.

Clement called the ponds the “opposite of a discrete conveyance,” and called the case “a classic example of non-point source pollution” that should be left for the state to regulate.

U.S. Circuit Judge Eric Clay called the pollution a man-made situation, and “not an accident of nature,” and asked the attorney why the CWA should not apply.

Clement told the judge that not all man-made objects that create water pollution are covered under the CWA.

He cited a hypothetical situation where a newly installed blacktop parking lot creates runoff into a local waterway, but would not be considered a point source or be subject to Environmental Protection Agency jurisdiction.

Cmar countered this point in his rebuttal, and told the panel that “we’re not talking about a parking lot… Just because [the contaminant] flows through an underwater channel, doesn’t take it out of the CWA.”

The Tennessee lawsuit, filed by the Tennessee Clean Water Network and Tennessee Scenic Rivers Associations, challenged the discharge of pollutants by the Tennessee Valley Authority, or TVA, into the Cumberland River from the coal-fired power plant in Gallatin.

The case also dealt with ash ponds used by the plant, but in this case, the TVA was ordered to excavate the coal ash from an abandoned pond to remedy the pollution.

TVA attorney David Ayliffe called the lower court’s decision an “extreme remedy” and “disproportionate,” telling the panel that his client is working to fix the problems at the plant.

Ayliffe also told the panel he agreed with the argument of Clement before him, and that “groundwater is non-point source pollution.”

The attorney said sampling evidence in the case was inconclusive, the environmental groups showed no proof of traceability, and the district court “theorized and inferred” when it reached its conclusion.

Ayliffe said that the closure of the ash pond is “not slapping a cap on the place and walking away,” and said the lower court “did not give credence” to the closure process, which includes 30 years of monitoring pollution levels at the site.

Attorney Frank Holleman argued on behalf of the Tennessee environmental groups, and said that “excavation is the only remedy” available for the Gallatin site.

Holleman defended the lower court’s decision, and said that the excavation order was reasonable because TVA violated a state-issued permit for the operation of a wastewater treatment facility.

U.S. Circuit Judge Julia Smith Gibbons also sat on the panel.

No timetable has been set for either of the court’s decisions.

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