Ohio Valley Environmental Coalition v. River Cities Disposal, LLC
MEMORANDUM OPINION & ORDER, granting 6 MOTION to Dismiss by River Cities Disposal, LLC plaintiff Ohio Valley Environmental Coalition's Complaint; matter be and is stricken from the court's active docket.. Signed by Judge David L. Bunning on 3/29/16.(SMT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 15-47-DLB-EBA
OHIO VALLEY ENVIRONMENTAL COALITION
MEMORANDUM OPINION AND ORDER
RIVER CITIES DISPOSAL, LLC
This is a citizen suit under the Clean Air Act (“CAA”) seeking declaratory and
injunctive relief and civil penalties . Plaintiff Ohio Valley Environmental Coalition (“OVEC”)
brought suit on behalf of itself and its members, against Defendant River Cities Disposal,
LLC (“River Cities”) for alleged violations of ambient air quality standards contained in
Kentucky statutes and regulations, as well as the CAA. (Doc. # 1). Although couched in
terms of a Motion to Dismiss, River Cities essentially asks this Court to abstain from
exercising its jurisdiction, in accordance with Burford v. Sun Oil Co., 319 U.S. 315 (1943),
because the issues before this Court are “already being addressed by Kentucky’s Energy
and Environment Cabinet.” (Doc. # 6-1, p. 1). The Court has jurisdiction over this matter
pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 7604(a).
In order to properly detail the facts of this particular case, the Court must first explain
the mechanics of the CAA, which stands as “a model of cooperative federalism.” Ellis v.
Gallatin Steel Co., 39 F.3d 461, 467 (6th Cir. 2004). The CAA “requires each State to
establish a state implementation plan (SIP) to limit emissions in accordance with national
ambient air quality standards set by the federal EPA.” Id. (citing 42 U.S.C. §§ 7409(b)(1),
7410(a)(1)). Additionally, “under Subtitle D of the Resource Conservation and Recovery
Act (“RCRA”), states are required to develop solid waste management plans pursuant to
guidelines established by the EPA.” (Doc. # 6-1, p. 3 (citing 42 U.S.C. §§ 6941-6949)).
To comply with these obligations, Kentucky has developed a plan for municipal solid
waste facilities, as well as an air quality plan. The EPA has approved these plans.1 (Doc.
# 6-1, p. 3). The Division of Air Quality (“DAQ”), a division of the Kentucky Energy and
Environment Cabinet’s (“Cabinet”) Department for Environmental Protection (“DEP”),
oversees Kentucky’s air quality program, which encompasses monitoring, compliance, and
Ky. Rev. Stat. Ann. § 224.10-100 requires the Cabinet to “prescribe
administrative regulations for the prevention, abatement, and control of air pollution.”
Pursuant to the CAA and Ky. Rev. Stat. Ann. § 224.10-100, Kentucky has established an
odor standard, identified in 401 Ky. Admin. Reg. 53:010.
Solid waste facilities are subject to a multitude of statutory and regulatory conditions,
including permitting,3 management,4 and operation requirements.5 Foremost in the present
case is 401 Ky. Admin. Reg. 47:030 § 10(2), which provides that a “solid waste site or
40 C.F.R. § 52.920, et seq.
Ky. Rev. Stat. Ann. § 224.10-020.
Ky. Rev. Stat. Ann. § 224.40-100; Ky. Rev. Stat. Ann. § 224.40-310; 401 Ky. Admin. Reg. 47:160.
Ky. Rev. Stat. Ann. § 224.43-010, et seq.
401 Ky. Admin. Reg. Ch, 47 and 48.
facility shall not violate applicable air pollution requirements” set forth in Ky. Rev. Stat. Ann.
Chapter 224 or 401 Ky. Admin. Reg. Chapters 50 through 63. Thus, solid waste facilities
are subject to 401 Ky. Admin. Reg. 53:010's odor standard.
The CAA “relies on three sources of enforcement authority” – first, the CAA “entrusts
the EPA with primary responsibility for promulgating national ambient air quality standards;”
then, States implement their own plans (SIPs), which the CAA “permits States to enforce;”
and finally, if “States fail to enforce their plans, the statute authorizes federal EPA action
and private enforcement actions or ‘citizen suits.’” Ellis, 390 F.3d at 174-75. The CAA
includes a citizen suit provision, 42 U.S.C. § 7604(a), which permits private individuals to
bring suit “against any person ... who is alleged to have violated (if there is evidence that
the alleged violation has been repeated) or to be in violation of (A) an emission standard
or limitation” or “(B) an order issued by the Administrator or a State with respect to such a
standard or limitation.” However, before bringing a citizen suit, the plaintiff must satisfy two
(2) prerequisites. First, a plaintiff must provide sixty (60) days’ notice of the violation to the
EPA Administrator, the State in which the violation occurs, and the alleged violator. 42
U.S.C. 7604(b)(1)(A). Second, “citizens cannot commence independent suits if the EPA
or the State has already commenced an enforcement action and is diligently prosecuting
the violation.” Ellis, 390 F.3d at 467 (citing 42 U.S.C. § 7604(b)(1)(B).6
The Sixth Circuit, in interpreting the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365,
which is nearly identical to the citizen suit provision under the Clean Air act, determined that the
federal trial court “committed reversible error by according the TDEC, a state administrative agency
charged by the state legislature with supervising water quality, the status of a court of the United
States or a State” under the terms of the statute. Jones v. City of Lakeland, Tenn., 224 F.3d 518, 521
(6th Cir. 2000). For purposes of this Opinion, the Court assumes the Sixth Circuit would interpret the
citizen suit provision under the Clean Air Act in the same fashion. However, notably absent from
Jones v. City of Lakeland, Tenn., is any discussion of Burford abstention.
Big Run Landfill, owned and operated by River Cities, is a permitted solid waste
facility located in Boyd County, Kentucky. (Doc. # 6-2). Therefore, it is subject to the
RCRA, CAA, and Kentucky’s statutes and regulations promulgated pursuant thereto,
including the odor standard in 401 Ky. Admin. Reg. 53:010. Between May 18, 2011 and
December 17, 2013, DAQ issued Big Run Landfill approximately twenty (20) Notices of
Violations, many of which were because of a “detectable odor.” (Doc. # 6-7). In an effort
to settle “all civil claims and controversies involving the alleged violations,” River Cities and
the Cabinet entered into an Agreed Order on January 28, 2014. (Doc. # 6-4, p. 10). The
Agreed Order required River Cities to take certain remedial measures, including developing
and submitting a Corrective Action Plan (the “Second CAP”) to address the odor violations.
Id. at 11. In addition, the Agreed Order provided that “[s]o long as Big Run is in
compliance with the terms of the Agreed Order and is implementing the Second CAP, in
accordance with remedial measures deadlines,” the Cabinet “shall hold in abeyance civil
penalties resulting from violation of 401 KAR 53:010 Appendix A, except for any violations
unrelated to the remediation of the Slide or the gas collection and control system (“GCCS”)
or any failure to operate or maintain odor control equipment (“Other Odor Violations”).” Id.
at 13. However, the Agreed Order did require River Cities to “pay a stipulated penalty of
Seven Thousand Five Hundred Dollars ($7,500) for any Other Odor Violations” until the
Second CAP was completed; and further established that, after completion of the Second
CAP, “during the term of this Agreed Order, Big Run shall pay a stipulated penalty of Seven
Thousand Five Hundred Dollars ($7,500) for any violation of 401 KAR 53:010 Appendix A.”
Id. at 14. Lastly, the Agreed Order provided that it “shall terminate upon Big Run’s
completion of all requirements described in this Agreed Order.” Id. at 20.
Since the entry of the Agreed Order on January 18, 2014, DAQ has issued River
Cities an additional forty (40) Notices of Violations, thirty-four (34) of which were for a
“detectable odor” in violation of 401 Ky. Admin. Reg. 53:010. In response, DAQ has
assessed stipulated penalties totaling approximately Two Hundred and Thirty Thousand
Dollars ($230,000). (Doc. # 6-4, p. 5-6).7 In accordance with the Agreed Order, River Cities
submitted the Second CAP to the Cabinet on April 28, 2014, which was “revised based on
the Cabinet’s comments and directives.” (Doc. # 6-8, p. 3). On June 4, 2015, River Cities
notified the Cabinet that the Second CAP’s requirements had been implemented and
completed, indicated it would “continue to comply with the Second CAP,” and advised the
Cabinet of additional corrective actions taken. Id.
Shortly thereafter, on June 9, 2015, River Cities filed its Permit Renewal Application
with the Cabinet. (Doc. # 6-2). Pursuant to Ky. Rev. Stat. Ann. § 224.40-310(13) and 401
Ky. Admin. Reg. 47:160 § 5(4), a previously-issued permit “shall carry with it the right of
successive renewal upon expiration,” but the Cabinet, “in issuing a renewal, shall consider
whether all conditions of the original permit and modifications of permit conditions by
agreed order” have been met. After River Cities’s application for permit renewal, the
Cabinet provided for a public notice and comment period and held a public hearing in Boyd
County8 on August 25, 2015, pursuant to Ky. Rev. Stat. Ann. § 224.40-310(14). (Doc. # 6-
River Cities is contesting the Cabinet’s August 12, 2015 assessment of stipulated penalties in the
amount of $22,500.00 and has petitioned for a hearing pursuant to Ky. Rev. Stat. Ann. § 224.10420(2) and 401 Ky. Admin. Reg. 100.10. (Doc. # 21-3).
Senator Robin L. Webb, of Kentucky’s 18th Senate District, specifically requested that the Cabinet
hold the public hearing in Boyd County to “give the citizens affected by this landfill an opportunity to
present comment and receive first hand information concerning the permit renewal,” and the Cabinet
complied with this request. (Doc. # 6-6).
3). During that hearing, the Cabinet heard from many concerned Boyd County citizens,
some in favor of and some opposed to renewing River Cities’s permit. (Doc. # 14-10). The
Cabinet also received written comment from Citizens of Boyd County Environmental
Coalition, alerting the Cabinet that they had secured the signatures of 2,100 citizens who
opposed the permitting of Big Run Landfill, and specifically requesting that the Cabinet
“consider all the notices of violation for the many years, all the many residents impacted
by the hydrogen sulfide odors, all the many students who are sickened during their school
days, all the residents who have lost their property values, and how this nuisance has
affected the quality of life of hundreds of Kentuckians.” (Doc. # 6-5).
On July 13, 2015, OVEC filed this CAA citizen suit for declaratory and injunctive
relief and civil penalties against River Cities for alleged “violations of an emissions standard
and limitation contained in Kentucky’s SIP.” (Doc. #1, p. 1). OVEC claims that “River Cities
has caused or allowed emissions from the Big Run Landfill and/or the attendant rail transfer
facility to exceed SIP limitations on odor.” Id. Specifically, OVEC seeks the following relief:
(1) a declaration that “River Cities has violated and continues to violate the CAA,” (2) an
injunction prohibiting “River Cities from operating its facilities in such a manner as will result
in further violations of the SIP and the CAA,” (3) an assessment of “appropriate civil
penalties for each daily violation of the emissions standards and the CAA,” (4) an order
requiring “River Cities to immediately comply with the standards and limitations of the
Kentucky SIP,” (5) and an order requiring “River Cities to conduct monitoring and sampling
to determine any health effects of its violations, to remedy and repair any environmental
contamination and/or human health issues caused by its violations.” (Doc. # 1, p. 8).
OVEC also requests “attorney and expert witness fees and all other reasonable expenses
incurred in pursuit of this action.” (Doc. # 1, p. 8).
Since June 9, 2015 (the filing date of River Cities’s Permit Renewal Application) and
July 13, 2015 (the filing of this action), OVEC claims there were seven (7) additional
Notices of Violations issued to River Cities. (Doc. # 1, p. 11-12). The record in this case
also demonstrates that DAQ issued six Notices of Violations of the odor standard to River
Cities in September 2015 and demanded a stipulated penalty of Forty-Five Thousand
Dollars ($45,000) for violations of the odor standard. (Doc. # 21-1). As of October 14,
2015, the Cabinet’s enforcement efforts continued, wherein a Hearing Officer entered an
Order consolidating ten (10) administrative cases, directing River Cities and the Cabinet
to engage in settlement discussions, and scheduling a status conference for January 7,
2016. (Doc. # 21-2).
Standard of Review
This Court has a “strict duty to exercise the jurisdiction that is conferred upon [it] by
Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S 706, 714 (1996). That “duty is not,
however, absolute.” Id. at 716. Although abstention “is the exception, not the rule,” the
Supreme Court has held that “federal courts may decline to exercise their jurisdiction in
otherwise ‘exceptional circumstances,’ where denying a federal forum would clearly serve
an important countervailing interest.” Id. at 716 (citing Colo. River Water Conservation Dist.
v. United States, 424 U.S. 800, 813 (1976)). “Despite the ‘virtually unflagging obligation
of the federal courts to exercise the jurisdiction given them,’ considerations of judicial
economy and federal-state comity may justify abstention in situations involving the
contemporaneous exercise of jurisdiction by state and federal courts” or by state
administrative agencies. Romine v. Compuserve Corp., 160 F.3d 337, 339 (6th Cir. 1998)
(quoting Colo. River, 424 U.S. at 817). At times, “a sound respect for the independence
of state action requires the federal equity court to stay its hand.” Burford, 319 U.S. at 334.
Under Burford, where ”timely and adequate state-court review is available, a federal
court sitting in equity must decline to interfere with the proceedings or orders of state
administrative agencies: (1) when there are difficult questions of state law bearing on policy
problems of substantial public import whose importance transcends the result in the case
then at bar; or (2) where the exercise of federal review of the question in a case and in
similar cases would be disruptive of state efforts to establish a coherent policy with respect
to a matter of substantial public concern.“ New Orleans Pub. Serv., Inc. v. Council of City
of New Orleans (NOPSI), 491 U.S. 350, 361 (1989). “While Burford is concerned with
protecting complex state administrative processes from undue federal interference, it does
not require abstention whenever there exists such a process, or even in all cases where
there is a “potential for conflict” with state regulatory law or policy.” NOPSI, 491 U.S. at 362.
Instead, Burford applies when there is “a claim that a state agency has misapplied its lawful
authority or has failed to take into consideration or properly weigh relevant state-law
factors.” NOPSI, 491 U.S. at 362.
River Cities claims that this Court should dismiss OVEC’s Complaint pursuant to the
Burford abstention doctrine in order to avoid undue federal interference with the Cabinet’s
coherent and complex state administrative processes for regulating solid waste facilities
and enforcing air quality regulations. (Doc. # 6). Specifically, River Cities directs the
Court’s attention to River Cities’s application for permit renewal and several alleged
violations of the odor regulation contained in 401 Ky. Admin. Reg. 53:010, which the
Cabinet is currently considering. Thus, River Cities claims that the Cabinet will necessarily
have to determine the same issues raised in OVEC’s Complaint – whether River Cities has
complied with the odor regulation – in both the consolidated action regarding alleged odor
violations and the permit renewal application process. (Doc. # 6, p. 2). 401 Ky. Admin.
Reg. 47:160 § 5(4) requires the Cabinet to “consider whether all conditions of the original
permit and modifications of permit conditions by agreed order” have been satisfactorily met.
Therefore, River Cities asserts that this Court should abstain from exercising jurisdiction
pursuant to Burford.
In response, OVEC argues that River Cities’s Motion must be denied because the
“plain language” of the CAA clearly establishes that Burford abstention “does not apply to
federal citizen suits that seek to enforce an unambiguous emission standard, such as the
odor limitation” at issue in the present case. (Doc. # 13, p. 1-2). Alternatively, OVEC claims
that “even if abstention could potentially apply,” this Court should not abstain because there
is no potential for this suit to conflict with Kentucky’s permitting determination. Id.
First, the Court will examine OVEC’s primary argument - that Burford abstention
does not apply to or limit the availability of citizen suits under the CAA because Congress
expressly provided for only two (2) prerequisites before bringing a citizen suit: (1) sixty (60)
days’ notice and (2) the absence of any civil enforcement action in state or federal court by
the EPA or the State. (Doc. # 13, p. 6). OVEC claims that “by imposing only these two
conditions ... Congress rejected Defendants’ theory that there are any other limitations on
the filing of citizen suits.” Id. at 1,7. OVEC further asserts that “[a]bstaining from a CAA
citizen suit under Burford would effectively rewrite the CAA to add a new judicially-created
Upon review of Sixth Circuit case law, OVEC’s argument is misplaced. In Ellis v.
Gallatin Steel Co., 390 F.3d 461 (6th Cir. 2004), the Sixth Circuit considered Burford
abstention in the context of CAA citizen suits. Specifically, the plaintiffs in Ellis argued that
the district court erred by dismissing its CAA citizen suit. However, after examining that
argument, the Sixth Circuit determined that Burford abstention “appl[ied] with equal force”
to CAA citizen suits and affirmed the district court’s dismissal of plaintiff’s claim. Ellis, 390
F.3d at 480 (citing Coal. for Health Concern v. LWD, Inc., 60 F.3d 1188, 1194-95 (6th Cir.
1995). Other federal district courts have also applied abstention doctrines to citizen suits
under the CAA. See e.g. Kopacz v. Hopkinsville Surface and Storm Water Util., 714 F.
Supp.2d 682 (W.D. Ky. 2010) (finding Colorado River abstention was warranted with regard
to property owners’ claim that city, utility, and contractor violated CAA and state law during
construction project); Coal. for Clean Air v. VWR Int’l, LLC, 922 F. Supp.2d 1089 (E.D. Cal.
2013) (Colorado River abstention applied to environmental and labor organizations’ CAA
action in federal district court alleging company violated air district rule in California’s SIP);
Jamison v. Longview Power, LLC, 493 F. Supp. 2d 786 (N.D. W. Va. 2007) (Burford
abstention was appropriate in property owners’ CAA citizen suit against power company,
alleging lack of valid permit for plant construction).
Because Sixth Circuit precedent has established that abstention doctrines, including
Burford abstention, do apply to CAA citizen suits, the Court must reject OVEC’s argument
that “the fact that Kentucky may be conducting administrative proceedings related to
Defendant’s landfill permit or to enforcement of the odor standard in the SIP are simply
irrelevant.” (Doc. # 13, p. 8). In fact, the issues and proceedings before the Cabinet are
highly relevant to whether this Court should abstain under Burford. Accordingly, this Court
must now consider whether “a sound respect for the independence of state action requires
the federal equity court to stay its hand” and abstain from exercising jurisdiction over the
instant action. Burford, 319 U.S. at 334.
Essentially, the Burford abstention doctrine can be distilled into four (4) elements:
(1) the availability of timely and adequate state-court review, (2) a request for equitable
relief, (3) the existence of a complex state regulatory regime, and (4) either “difficult
questions of state law bearing on policy problems of substantial public import” or the
potential for disruption of “state efforts to establish a coherent policy with respect to a
matter of substantial public concern.” NOPSI, 491 U.S. at 361.
Here, the first three elements are easily satisfied. Timely and adequate state-court
review of the Cabinet’s action or inaction is available, despite OVEC’s claims to the
contrary.9 If OVEC or its members are aggrieved by an action of the Cabinet, they can
challenge such action in the Franklin County Circuit Court. Ky. Rev. Stat. Ann. § 224.10420(2); Ky. Rev. Stat. Ann. § 224.10-470.; 401 Ky. Admin. Reg. 47: 140 § 11.
Furthermore, to the extent that OVEC’s members have sustained injuries, they can bring
a state-law nuisance action against River Cities.10 The second element is also met; OVEC
Doc. # 13, p. 10 (“First, and most simply, the Burford doctrine cannot apply because there is no state
forum available to review Plaintiffs’ claims.”).
Under Kentucky law, a “nuisance claim has two elements: (1) the reasonableness of the defendant’s
use of his property, and (2) the gravity of harm to the complainant.” Louisville Ref. Co. v. Mudd, 339
S.W.2d 181, 186 (Ky. 1960). There are two types of nuisances: public and private. A private
nuisance “affects an individual or a limited number of individuals,” while a public nuisance “affects the
public at large.” W.G. Duncan Coal Co. v. Jones, 254 S.W.2d 720, 723 (Ky. 1953).
seeks a declaration and injunction -the quintessential forms of equitable relief.11 Third, a
complex state regulatory regime exists. Kentucky “‘has enacted and is operating its own
authorized program’ under the Clean Air Act and ‘is attempting to establish a coherent
policy’” regarding solid waste facilities and air quality regulations, and has “provided a
scheme for administrative and judicial review” of DAQ’s permitting and enforcement
decisions. Ellis, 390 F.3d at 480; see also 401 Ky. Admin. Reg. 53:010; Ky. Rev. Stat. Ann.
§ 224.10-420(2); Ky. Rev. Stat. Ann. § 224.10-470.
The fourth element – whether there is a potential for disruption of the State’s
coherent policy with respect to a matter of substantial public concern, or there are difficult
questions of state law bearing on policy problems – requires more attention. OVEC claims
that this fourth factor precludes abstention.
In regards to the existence of “difficult
questions of state law,” OVEC argues that none exist because they are seeking to enforce
an “unambiguous, EPA-approved SIP provision that imposes a federally-enforceable odor
standard” and “Kentucky is not reconsidering or revising that standard in any pending
administrative proceeding.” (Doc. # 13, p. 12). OVEC also asserts that “because this is a
straightforward citizen suit to enforce an unambiguous emission standard, allowing the suit
to go forward would not disrupt Kentucky’s effort to establish a coherent policy regarding
the management of solid waste.” Id. Furthermore, OVEC claims that “this Court compelling
Defendant to cease violating the odor standard” would “not interfere with the establishment
of a coherent state policy,” but instead would “further the state’s established policy [to]
The fact that OVEC seeks monetary damages in the form of civil penalties does not alter the Court’s
analysis because the recovery of civil penalties under the CAA “first requires a ‘declaration’ or
determination” that the Clean Air Act and/or Kentucky’s SIP has been violated. See e.g. Fair
Assessment In Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 116 (1981).
prevent noxious odors form sources like Defendant’s landfill.” Id. at 13.
To examine the potential for disruption of Kentucky’s complex state regulatory
regime for solid waste facilities and air quality, the Court must determine what issues are
actually before the Cabinet. In evaluating River Cities’s application for permit renewal, the
Cabinet is required to “consider whether all conditions of the original permit and
modifications of permit conditions by agreed order” have been met. Ky. Rev. Stat. Ann. §
224.40-310(13); 401 Ky. Admin. Reg. 47:160 § 5(4).
Therefore, the Cabinet will
necessarily be considering River Cities’s compliance with the odor standard, which is
required by 401 Ky. Admin. Reg. 47:030 § 10(2), when determining whether to renew River
Cities’s permit. This issue was also the subject of the January 28, 2014 Agreed Order, and
the entire purpose of the Second CAP. In addition, River Cities has been assessed a
multitude of alleged odor violations, which are the subject of a consolidated administrative
proceeding before the Cabinet. (Doc. # 21-2).
In this case, there is a substantial potential for disruption of the Cabinet’s permitting
and enforcement determinations – the exact situation where Burford counsels abstention.
Although OVEC contends that “Kentucky regulators continue to record violations” but have
failed to initiate “any civil or criminal enforcement actions filed in state or federal court,”
there appears to be a flurry of activity at the Cabinet. (Doc. # 13, p. 4). The record
demonstrates that the Cabinet is considering River Cities’s permit renewal application (Doc.
# 6-2), conducting public hearings, and considering public comments with respect to
alleged odor violations. (Docs. # 6-5; 14-1; 14-10). Furthermore, DAQ has been actively
enforcing odor violations by assessing and demanding stipulated penalties totaling over
Two Hundred Thousand Dollars ($200,000), and administrative hearings and proceedings
regarding alleged odor violations are ongoing. (Docs. # 6-9; 6-10; 21-1; 21-2).
In Coalition for Health Concern, the Sixth Circuit considered a citizen suit under
RCRA, where plaintiffs’ allegations were “based on assertions that the Secretary [of the
Kentucky Cabinet for Natural Resources and Environmental Protection] ... failed to apply
or misapplied his lawful authority under Kentucky law and under RCRA concerning the
issuance” of a permit. The Sixth Circuit determined it was “clear ... that Kentucky has an
overriding interest in the protection of its environment from the effects of unregulated
hazardous waste as indicated by its enactment of a broad statutory scheme and review
process governing the issuance and approval of permits for hazardous waste facilities.”
Coal. for Health Concern, 60 F.3d at 1194. In addition, the Sixth Circuit noted that
Plaintiffs' claims "could not arise in isolation from state law issues" and were not "premised
solely on alleged violation of federal law.” Id. Instead, plaintiffs’ claims sought “declaratory
and injunctive relief for alleged violations of state and federal RCRA requirements.” Id.
Therefore, the Sixth Circuit held that plaintiffs’ claims could not be considered “without
interfering with Kentucky’s policies” for hazardous waste disposal, and reversed the district
court because it should have dismissed plaintiffs’ claims under Burford. Id. at 1195.
The Sixth Circuit relied upon and expanded Coalition for Health Concern nine years
later in Ellis. Instead of the RCRA, Ellis dealt with a citizen suit under the CAA, challenging
Kentucky DAQ’s permitting decision. The Sixth Circuit found that the “reasons given by
Coalition for Health Concern for applying Burford abstention appl[ied] with equal force” in
Ellis. See 390 F.3d at 480. Because Kentucky had enacted and was operating “its own
authorized program under the Clean Air Act” and “was attempting to establish a coherent
policy under its law,” the Sixth Circuit again determined that “federal review ... would be
disruptive of Kentucky’s efforts to establish a coherent policy’ with respect to PSD
permitting of emitting facilities.” Id. (internal citations omitted). Specifically, the Circuit held
that federal review would be particularly disruptive because the plaintiffs’ “claims boil[ed]
down to allegations that the Kentucky agency ‘failed to apply or misapplied its lawful
authority under Kentucky law and under’” the CAA in making permit decisions, which
“would require the district court to revisit earlier decisions made by” the DAQ. Id. at 480481.
Similarly, OVEC’s claims could not “arise in isolation from state law issues” and “boil
down to allegations that the Kentucky agency ‘failed to apply or misapplied [its] lawful
authority under Kentucky law and under’ the Clean Air Act” by failing to do more with
respect to River Cities’s alleged odor violations. Ellis, 390 F.3d at 481 (citing Coal. for
Health Concern, 60 F.3d at 1195). As the Sixth Circuit declared in Ellis, “second-guessing”
of the EPA’s or the Cabinet’s “assessment of an appropriate remedy ... fails to respect the
statute’s careful distribution of enforcement authority among the federal EPA, the States
and private citizens, all of which permit citizens to act where” the EPA or the State “has
‘failed’ to do so, not where” the EPA or the State “has acted but has not acted aggressively
enough in the citizens’ view.” Ellis, 390 F.3d at 477 (citing Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Found., Inc., 484 U.S. 49, 61 (1987)). The fact that Ellis and Coalition
for Health Concern dealt specifically with “second-guessing” and “revisiting” the Cabinet’s
permitting decision does not make those cases any less instructive in the instant action.
The principles counseling abstention remain the same, whether applied to a permitting
decision or the enforcement and permit renewal decisions at issue in this case.
If this Court were to consider OVEC’s claims and rule in its favor, this Court would
declare that River Cities has violated and continues to violate the CAA, enjoin River Cities
from operating its facilities in a manner as will result in further violations of the SIP and the
CAA, assess civil penalties for violations, order River Cities to immediately comply with the
standards and limitations of the SIP, order River Cities to conduct monitoring and sampling
to determine any health effects of its violations, and further order River Cities to remedy
and repair any environmental contamination and/or human health issues caused by its
violations. The issues involved in OVEC’s claims are exactly the same issues before the
Cabinet. Therefore, “federal review at this juncture would be disruptive of Kentucky’s
efforts to establish a coherent policy” with respect to solid waste facilities and air quality
standards. Coal. for Health Concern, 60 F.3d at 1194; see also Ellis, 390 F.3d at 480.12
Finally, the Court rejects OVEC’s argument that this citizen suit only seeks to
“further” Kentucky’s policies. In Ellis, the Sixth Circuit disposed of a similar assertion,
where plaintiffs argued “their claim ‘supports’ rather than ‘attacks’ the state decisions.” Ellis,
390 F.3d at 481. The Sixth Circuit determined that contention was of “little moment”
because the plaintiffs’ claim “asked the district court to disagree” with DAQ’s decision. As
Not only would federal review at this juncture be disruptive of Kentucky’s efforts to establish a
coherent policy with respect to solid waste facilities and air quality standards, but the resolution of
OVEC’s claims are likely to involve difficult questions of state law. River Cities has indicated it intends
to challenge the Cabinet’s method for measuring and determining whether there has been an odor
violation. Specifically, River Cities claims that “with the exception of odor and hydrogen sulfide, the
Cabinet has prescribed by regulation the method of measurement for every ambient air quality
standard in 401 KAR 50:015.” (Doc. # 14, p. 5). Thus, River Cities alleges, the Cabinet’s failure to
prescribe by regulation a method to measure odor gives rise to the “question of whether a properly
prescribed method to measur odor exists, and whether the Cabinet is prohibited by law from
implementing a methodology to measure odor via internal policy instead of by regulation” in
accordance with Kentucky’s administrative law scheme established in Ky. Rev. Stat. Ann. Chapter
13A. Id. (citing Docs. # 14-7; 14-8). Thus, Burford’s other concern – difficult questions of state law
– is likely present here as well.
the Sixth Circuit suggested in Ellis, if OVEC “truly ‘supported’ the state agency’s ...
decisions, they would have had little if any reason for bringing this claim.” Id. Accordingly,
this Court finds that Burford abstention is appropriate in this case and OVEC’s Complaint
must be dismissed without prejudice.
Accordingly, for the reasons stated herein,
IT IS ORDERED that Defendant River Cities Disposal, LLC’s Motion to Dismiss
(Doc. # 6) Plaintiff Ohio Valley Environmental Coalition’s Complaint is granted.
IT IS FURTHER ORDERED that this matter be, and is, hereby stricken from the
Court’s active docket.
This 29th day of March, 2016.
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