Sixth Circuit Clears Utilities in Ash Pond Leak Cases

CINCINNATI (CN) – The Sixth Circuit ruled Monday that utilities in Tennessee and Kentucky did not violate the Clean Water Act when contaminants in coal ash ponds at their facilities leached into the local groundwater.

In a pair of opinions, a three-judge appellate panel  ruled that ash ponds are not “point sources” of pollution under the CWA, and that the language of the Act “excludes the migration of pollutants through groundwater.”

The cases involve power plants in Kentucky and Tennessee, and were argued before the panel on August 2.

Both coal-fired power plants dispose of their coal ash waste through the use of “a ‘sluice’ system [that] combines the ash with lots of water and pipes that wastewater into man-made ponds nearby.

“Once discharged into those ponds, the ash sinks into the banks and the bottoms of the ponds, where it is intended to remain permanently,” the judges said.

U.S. Circuit Judge Richard Suhrheinrich authored both opinions, and wrote that the “hydrological connection theory” put forth by the environmental group plaintiffs is not supported by the CWA.

Suhrheinrich cited the Act’s definition of “point source,” which must be “a discernible, confined and discrete conveyance,” and went on to explain why the ash ponds do not meet that definition.

“While groundwater may indeed be a ‘conveyance,’” Suhrheinrich wrote, “in that it carries pollutants … it is not ‘discernible,’ ‘confined’ or ‘discrete.’”

“By its very nature, groundwater is a ‘diffuse medium’ that seeps in all directions, guided only by the general pull of gravity,” he continued. “Thus, it is neither confined nor discrete. And while dye traces can roughly and occasionally track the flow of groundwater, they do not render groundwater ‘discernible.’”

The plaintiffs in the Kentucky suit argued that the “karst” system near the E.W. Brown Generation Station in Kentucky, which was created by the erosion of limestone rock, and includes an underground “series of caverns, sinkholes, tunnels, and paths” is a point source, but Judge Suhrheinrich disagreed.

“All that differs,” he wrote, “between groundwater in the more traditional sense and groundwater in this case is the terrain through which it passes. As noted, some terrain allows for speedier groundwater flow (like karst); some is less conducive (like clay). The only difference is expediency.”

In the Tennessee case concerning the Gallatin Fossil Plant on Old Hickory Lake, Judge Suhrheinrich admitted the contamination of the lake by the ash pond is a “major environmental problem,” but that the CWA “is not the proper legal tool of correction.”

Instead, Suhrheinrich ruled that the environmental groups’ only avenue for relief is the Resource Conservation and Recovery Act, or RCRA.

Consequently, the panel ruled in favor of the environmental groups in the Kentucky case regarding the RCRA violation alleged in their original complaint.

Judge Suhrheinrich determined the district court improperly dismissed the RCRA claim for lack of jurisdiction.

“Here,” Suhrheinrich wrote, “plaintiffs have met the strictures of RCRA’s citizen-suit provision. They have alleged (and supported) an imminent and substantial threat to the environment[,] they have provided the EPA and Kentucky ninety days to respond to those allegations, and neither the EPA nor Kentucky has filed one of the three types of actions that would preclude the citizen groups from proceeding with their federal lawsuit.”

Because the plaintiffs in the Tennessee case did not bring an RCRA claim, the panel reversed that lower court decision in its entirety.

U.S. Circuit Judge Eric Clay dissented from the majority in both decisions, and rued the court’s decision to allow a polluter to avoid liability “by moving its drainage pipes a few feet from the riverbank.”

Judge Clay urged the Sixth Circuit to align with its sister circuits on the topic of groundwater contamination, and cited the Fourth and Ninth Circuit cases of Upstate Forever v. Kinder Morgan Energy Partners LP and Hawai’i Wildlife Fund v. Cty. Of Maui, respectively.

“The majority’s approach,” Clay wrote, “defeats the CWA’s purpose by opening a gaping regulatory loophole: polluters can avoid CWA liability by discharging their pollutants into groundwater, even if that groundwater flows immediately into a nearby navigable water. This exception has no textual or logical foundation.”

Clay scolded the majority for its decision to apply the CWA only in cases where a polluter dumps “directly into … navigable waters,” and also reminded his fellow judges that the CWA and RCRA can be applied side-by-side, and not exclusive of one another.

“The majority is way off the rails,” he wrote, going on to say that, “The EPA says that imposing CWA liability for the discharge of Coal Combustion Residuals to navigable waterways does not eliminate the possibility of RCRA liability for the storage and treatment of [those residuals.]

“The majority suggest the exact opposite. Unfortunately for the majority, but fortunately for those who enjoy clean water, the majority lacks the authority to override longstanding EPA regulations on a whim.”

U.S. Circuit Judge Julia Smith Gibbons rounded out the panel, and concurred with Judge Suhrheinrich’s majority opinions.

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