Little et al v. Louisville Gas and Electric Company et al

Filing 49

MEMORANDUM OPINION & ORDER granting in part and denying in part 29 MOTION to Dismiss for Failure to State a Claim and MOTION to Dismiss for Lack of Jurisdiction; Signed by Chief Judge Joseph H. McKinley, Jr on 7/16/14: Remaining in this action are the Plaintiffs state-law claims, as well as their CAA claims related to the alleged operation of Cane Run without a valid permit. cc: Counsel (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:13-CV-01214-JHM
KATHY LITTLE; GREG WALKER and
DEBRA L. WALKER, husband and wife;
RICHARD EVANS; and PHILLIP
WHITAKER and FAYE WHITAKER,
husband and wife; on behalf of themselves and
all others similarly situated

PLAINTIFFS

V.
LOUISVILLE GAS AND ELECTRIC
COMPANY and PPL CORPORATION

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss [DN 29] of Louisville Gas and
Electric Company (“LG&E”) and PPL Corporation (“PPL”). Fully briefed, this matter is ripe for
decision. For the following reasons, the motion is GRANTED in part and DENIED in part.
I. BACKGROUND
This case involves the operation of the Cane Run power plant in southwestern Louisville.
The Plaintiffs allege that beginning in 2008, they and their neighbors began noticing a persistent
film of dust that coated their homes and properties. (See Compl. [DN 1] ¶¶ 2-6.) They allege that
the Cane Run power plant emits dust and coal ash into the air and onto their homes and
properties several times a month. (Id. ¶¶ 52-57.) The Plaintiffs state that the dust and coal ash
have been emitted from: (1) Cane Run’s emission stacks, through which solid particulates are
released during the coal burning process; and (2) Cane Run’s sludge plant, where the ash is
mixed with a cementing agent. (Id. ¶¶ 32, 36-39.) Further, the Plaintiffs state that ash, dust, and
other coal combustion byproducts blow onto their properties because they are placed in an

insufficiently-covered landfill. (Id. ¶¶ 42-43.) The Plaintiffs allege that the ash, dust, and coal
combustion byproducts are not only annoying, but also, they are composed of dangerous
elements, including arsenic, silica, lead, and chromium. (Id. ¶ 1.)
Louisville’s Air Pollution Control District (“APCD”) is the agency charged with enforcing
environmental regulations in Jefferson County. (Id. ¶ 58.) In 2010, the APCD began investigating

complaints about Cane Run. As a result of the investigation, the APCD issued several Notices of
Violation (“NOVs”) to LG&E concerning particulate emissions and the odors produced by Cane
Run. Specifically, in July of 2011, the APCD issued an NOV, finding that LG&E allowed fly ash
particulate emissions to enter the air and be carried beyond its property line. (See id. ¶ 62.) Four
months later, in November of 2011, the APCD issued a second NOV, detailing more violations
involving the emission of dust and ash from Cane Run. (Id. ¶ 63.) Subsequently, between July of
2012 and August of 2013, the APCD issued four additional NOVs. (Id. ¶¶ 64-69.) These NOVs
were resolved by an administrative proceeding before Louisville’s Air Pollution Control Board,
which resulted in an Agreed Board Order. (See Ag. Bd. Order No. 13-07 [DN 29-2].)
The Agreed Board Order required LG&E to implement, and comply with, a “Plant-Wide
Odor, Fugitive Dust, and Maintenance Emissions Control Plan.” (Id. at 4.) In the Agreed Board
Order, the Air Pollution Control Board specifically found that: (1) the required measures would
“fully address” the alleged violations cited in the NOVs; (2) LG&E “demonstrated compliance at
the Cane Run Generating Station” by submitting to the Order’s control plan; and (3) the proposed
resolution in the Agreed Board Order was “reasonable and adequate under the circumstances.”
(Id.) After a public hearing on November 20, 2013, the APCD adopted the Agreed Board Order.
On September 6, 2013, the Plaintiffs provided a Notice of Intent to Sue (“NOI”) to the
Defendants, the APCD’s Director, the EPA Administrators, the Director of Kentucky’s Division

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of Waste Management, the Commissioner of Kentucky’s Department of Environmental Protection,
and the U.S. Attorney General. The Plaintiffs filed this action more than 90 days from when the
notices were delivered. (Notice Letter [DN 1-2].) In the action, the Plaintiffs allege violations of
the Clean Air Act (“CAA”) and Resource Conservation and Recovery Act (“RCRA”). They also
bring state-law claims of nuisance, trespass, negligence, negligence per se, and gross negligence.
LG&E and PPL argue that the claims must be dismissed under Fed. R. Civ. P. 12(b)(1) and (b)(6).
II. STANDARDS OF REVIEW
Fed. R. Civ. P. 12(b)(1) provides that a party may file a motion asserting “lack of subjectmatter jurisdiction.” Subject matter jurisdiction is “a threshold determination.” Am. Telecom Co.
v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007) (citing Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 101 (1998)). “A Rule 12(b)(1) motion can either attack the claim of
jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or
it can attack the factual basis for jurisdiction, in which case the trial court must weigh the
evidence and the plaintiff bears the burden of proving that jurisdiction exists.” DLX, Inc. v. Ky.,
381 F.3d 511, 516 (6th Cir. 2004). “If the court determines at any time that it lacks subject matter
jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). A district court has wide
discretion to allow and review affidavits and other documents to resolve disputed jurisdictional
facts. Doing so does not convert the motion to dismiss to a Rule 56 summary judgment motion
where it does not impact the merits of the plaintiff’s claim. See Gentek Bldg. Prods., Inc. v.
Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007).
Upon a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6),
a court “must construe the complaint in the light most favorable to plaintiff[],” League of United
Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), accepting

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all of the plaintiff’s allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Under this
standard, the plaintiff must provide the grounds for its entitlement to relief, which “requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard when it
“pleads factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint falls short if it pleads
facts that are merely “consistent with a defendant’s liability” or if the facts do not “permit the
court to infer more than the mere possibility of misconduct.” Id. at 678–79. The allegations must
“‘show[] that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
III. DISCUSSION
At its core, the Plaintiffs’ complaint alleges that LG&E and PPL have excessively emitted
dust, ash, and other coal combustion byproducts from the Cane Run plant. Generally, excessive
emission claims are covered under the Clean Air Act (“CAA”). Thus, the Court will first analyze
the Plaintiffs’ CAA claims. Thereafter, the Court will turn its attention to the Plaintiffs’ Resource
Conservation and Recovery Act (“RCRA”) claims and their state-law claims.
A. COUNT III: CLEAN AIR ACT (“CAA”) CLAIMS
In Count III of their complaint, the Plaintiffs allege four types of CAA claims, including
claims for: (1) past violations based on the issued NOVs (Compl. [DN 1] ¶ 189); (2) “substantially

similar violations” that are “continuing on at least a weekly basis” (id. ¶ 193); (3) a violation of
the 20% opacity standard in Cane Run’s Title V operating permit (id. ¶ 195); and (4) operating
the Cane Run plant after LG&E’s Title V operating permit expired. (Id. ¶ 194.) LG&E and PPL
argue that these claims must be dismissed. The Court considers each type of CAA claim in turn.

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Past Violations based on Issued NOVs. In part, the Plaintiffs base their CAA claims on
issued NOVs which were addressed by the APCD in its Agreed Board Order. LG&E and PPL
argue that the Plaintiffs cannot sue for violations based on these issued and addressed NOVs
because: (1) the Agreed Board Order renders the claims non-redressable; (2) the claim preclusion
doctrine bars the Plaintiffs from re-litigating the claims; (3) this Court lacks jurisdiction to
address the ¶ 189(f) and ¶ 189(r) claims, as they are based on an alleged violation of Reg. 1.13 §
2, which is not federally enforceable; and (4) this Court lacks jurisdiction to address the claims in
¶ 189(b)-(c), ¶ 189(g)-(h), and ¶ 189(m)-(o), as the regulations on which they are based do not
constitute “emission standards or limitations” enforceable under the CAA’s citizen-suit provision.

LG&E and PPL first argue that the Agreed Board Order renders the Plaintiffs’ ¶ 189
claims non-redressable. To establish standing, a plaintiff must show that the injury will be
redressed by the relief sought. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528

U.S. 167, 180-81 (2000). LG&E and PPL argue that the Plaintiffs cannot make this showing, as
the alleged CAA violations in ¶ 189 of the complaint have already been resolved. According to
them, the Plaintiffs base the ¶ 189 claims solely on NOVs that the APCD resolved via its Agreed
Board Order. Further, since the Agreed Board Order addresses the issues raised in ¶ 189 of the
complaint, and since the APCD has found LG&E in compliance regarding these issues, the Court
can take no other action. (Defs.’ Mem. in Supp. of Mot. to Dismiss (“Defs.’ Mem.”) [DN 29-1]
13-15.) LG&E and PPL argue that “permitting a claim to go forward based upon the same conduct
which has already been penalized by an agency in an enforcement action would undermine the
goals of ensuring that agencies remain the primary enforcers of [environmental laws].” Benham
v. Ozark Materials River Rock, LLC, 2013 WL 5372316, at *7 (N.D. Okla. Sept. 24, 2013).

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The Plaintiffs respond by asserting that the Agreed Board Order does not bar their claims.
Although the Plaintiffs do not specifically address the ¶ 189 claims in their response, choosing
instead to address all their CAA claims generally, they argue that the Agreed Board Order cannot
bar their claims because it is an administrative order entered into without a court action.
According to the Plaintiffs, citizen-suit jurisdiction under the CAA is limited by 42 U.S.C. §
7604(b)(1)(B), which prohibits the commencement of a citizen suit “if the Administrator or the
State has commenced and is diligently prosecuting a civil action in a court of the United States
or a State to require compliance with the standard, a limitation, or order . . . .” 42 U.S.C. §
7604(b)(1)(B) (emphasis added). The Sixth Circuit has held that an administrative order is not a
“civil action in a court of the United States or a State” under the meaning of the statute. Jones v.
City of Lakeland, Tenn., 224 F.3d 518, 521 (6th Cir. 2000). Thus, the Plaintiffs argue that the
Agreed Board Order cannot bar their CAA claims. The Plaintiffs state that LG&E and PPL have
ignored this “civil action” requirement, thus rendering their redressability argument without
merit. (Pls.’ Mem. in Opp. to Defs.’ Mot. (“Pls.’ Mem.”) [DN 41] 16-19.) The Plaintiffs note that
federal courts uniformly hold that a “civil action in court” means what it says—and preemption
does not arise when a state agency merely undertakes administrative enforcement efforts. When
courts bar environmental citizen suits, the suits involve court actions—not administrative
proceedings. See Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 525 (5th Cir. 2008).
The Court finds that contrary to the Plaintiffs’ argument, LG&E and PPL’s position is
meritorious. As LG&E and PPL note in their reply, and as they argued during the oral argument
on May 5, 2014, the Plaintiffs have essentially confused Article III subject-matter jurisdiction
(and the “case or controversy” requirement) with federal question jurisdiction (and the limits of
citizen-suit jurisdiction). (Reply in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Reply”) [DN 42] 1-

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3.) LG&E and PPL do not argue that the Agreed Board Order constitutes a “civil action” as
defined by 42 U.S.C. § 7604(b)(1)(B). Rather, they contend that the Agreed Board Order already
provides the only relief available for the Plaintiffs’ ¶ 189 claims, thereby making those claims
not redressable by an Article III court. (Id.) In essence, by focusing on 42 U.S.C. § 7604(b)(1)(B)
instead of LG&E and PPL’s redressability argument, the Plaintiffs address an argument that
LG&E and PPL did not make. The issue here is not whether the Court has federal question
jurisdiction; it is whether the Agreed Board Order bars the Plaintiffs from bringing their ¶ 189
claims due to redressability. For the following reasons, the Court finds that it does.
In Steel Co. v. Citizens for a Better Environment, the Supreme Court held that a plaintiff
cannot meet the redressability prong of standing where the alleged violations have been resolved
or abated before suit is filed. 523 U.S. 83, 107-09 (1998). In other words, the Court held that
private plaintiffs may not sue to assess penalties for wholly past violations. Id. In this case, the
Plaintiffs’ ¶ 189 claims were addressed and resolved by the Agreed Board Order before the
Plaintiffs filed suit. As noted above, the APCD found LG&E’s control plan to be “reasonable
and adequate.” The APCD also found that LG&E “demonstrated compliance” at Cane Run by
submitting to the control plan. (Ag. Bd. Order No. 13-07 [DN 29-2].) Therefore, the responsible
administrative agency found that LG&E was in compliance as to the violations cited in the
issued NOVs. The violations cited in the issued NOVs became wholly past violations.
The Court finds that in light of this fact, it can do nothing to redress the Plaintiffs’ ¶ 189
claims. See, e.g., Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 637 F. Supp. 2d
983, 988 (N.D. Ala. 2009) (holding that where a regulatory agency grants “meaningful relief of
the sort being sought by the citizen,” citizen-suit claims are not redressable); see also W. Coast
Home Builders, Inc. v. Aventis Cropscience USA Inc., 2009 WL 2612380 (N.D. Cal. Aug. 21,

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2009) (holding that no basis for relief exists where the conditions at issue are already being
addressed by the administrative agency through a consent order); Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987) (noting that citizen suits are proper only “if
the Federal, State, and local agencies fail to exercise their enforcement responsibility”). The
Plaintiffs’ ¶ 189 claims must be DISMISSED. LG&E and PPL’s motion is GRANTED in this
respect. In light of this holding, the Court need not address LG&E and PPL’s other arguments on
the ¶ 189 claims, including their claim preclusion argument, as well as their argument on the
Court’s jurisdiction over the ¶ 189(f), ¶ 189(r), ¶ 189(b)-(c), ¶ 189(g)-(h), and ¶ 189(m)-(o) claims.
Substantially Similar Violations Continuing on Weekly Basis. In addition to their ¶
189 claims for past violations based on issued NOVs, the Plaintiffs bring CAA claims based on
“substantially similar violations” which are “continuing on at least a weekly basis.” (Compl. [DN
1] ¶¶ 193, 197.) LG&E and PPL argue that the Plaintiffs cannot sue for these alleged violations
since: (1) the Plaintiffs lack standing; (2) the Plaintiffs failed to provide adequate notice of these
claims; and (3) the Plaintiffs’ vague allegations do not meet the requirements of notice pleading.
Standing. LG&E and PPL first argue that the Plaintiffs lack standing to sue for their
“substantially similar” claims, as to both the “injury in fact” prong and the “redressability” prong
of the standing inquiry. As for “injury in fact,” LG&E and PPL argue that the Plaintiffs have
failed to allege facts indicating that the “Plant-Wide Odor, Fugitive Dust, and Maintenance
Emissions Control Plan” did not adequately address their “substantially similar” claims. LG&E
and PPL argue that the Agreed Board Order specified injunctive relief in the form of the control
plan. (Defs.’ Mem. [DN 29-1] 21-22.) They cite Ellis v. Gallatin Steel Co., 390 F.3d 461 (6th
Cir. 2004), to argue that in light of this control plan, the Plaintiffs have failed to sufficiently
plead “injury in fact.” In that case, the Sixth Circuit held that the district court committed

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reversible error in concluding that the plaintiffs had shown a risk of irreparable harm. The Court
reasoned that the plaintiffs had failed to establish how the existing consent decrees would not
adequately deal with any post-consent decree violations. Id. at 476. As for “redressability,”
LG&E and PPL argue that the control plan adopted in the Agreed Board Order addresses
compliance with the underlying regulations cited in the NOVs; therefore, there is nothing that the
Court can award to redress the “substantially similar” claims.
At the oral argument on May 5, 2014, LG&E and PPL noted that here, the Plaintiffs seek
declaratory relief. (Compl. [DN 1] 58, ¶ B.) They also seek “a permanent or final injunction
enjoining the Cane Run Defendants from allowing coal dust, fly ash, bottom ash, or other coal
combustion byproducts from escaping the Cane Run Site.” (Id. at 58, ¶ F.) In addition, the
Plaintiffs request “a permanent or final injunction requiring the Cane Run Defendants to take
affirmative measures . . . including but not limited to reducing the size of the Coal Ash Landfill
to its pre-1999 size.” (Id. at 58, ¶ G.) Finally, they request civil penalties and attorneys’ fees, as
well as compensatory and punitive damages. (Id. at 58-59, ¶¶ H-L.) LG&E and PPL argue that in
requesting this relief, the Plaintiffs essentially ask the Court to decide issues which were already
decided by the APCD—and reach a different result than it did. LG&E and PPL argue that this is
impermissible. See Ellis, 390 F.3d at 477 (noting that the citizen-suit plaintiffs sought to obtain
injunctive relief on “more stringent terms than those worked out by the EPA” and holding that
such “second-guessing of the EPA’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 has ‘failed’ to do so, not where
the EPA has acted but has not acted aggressively enough in the citizens’ view”).

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The Plaintiffs respond that the Agreed Board Order cannot deprive them of standing, as
their claims go beyond the specific incidents itemized in the NOVs. The Plaintiffs argue that the
complaint is based on LG&E and PPL’s repeated and ongoing conduct—and that this conduct is
actionable under controlling authority. In support of their position, the Plaintiffs cite Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987). There, the Supreme Court
found that a provision of the Clean Water Act authorizing citizens to commence civil actions for
injunctive relief, and/or the imposition of civil penalties, conferred citizen-suit jurisdiction over
complaints that make a “good-faith allegation of continuous or intermittent violation.” Id. at 6466. The Court remanded the case for consideration of whether the plaintiff’s complaint contained
such a “good-faith allegation.” However, it noted the plaintiff’s allegation that the defendant was
“continuing to violate its . . . permit when plaintiffs filed suit . . . .” Id. at 64.
According to the Plaintiffs, this is not simply a case involving wholly past violations, and
courts have routinely recognized that the CAA permits recovery for wholly past violations that
have been repeated, as well as for ongoing violations. See, e.g., Atl. States Legal Found., Inc. v.
United Musical Instruments, U.S.A., Inc., 61 F.3d 473, 477 (6th Cir. 1995) (noting that “after
Gwaltney, Congress amended the Clean Air Act . . . explicitly to allow citizen suits for purely
historical violations”); Glazer v. Am. Ecology Envtl. Servs. Corp., 894 F. Supp. 1029, 1037-38
(E.D. Tex. 1995) (finding that plaintiffs may maintain CAA suits based on allegations that past
violations were repeated). The Plaintiffs state that to the extent LG&E and PPL argue that their
claims have been redressed by the Agreed Board Order, or to the extent LG&E and PPL dispute
that violations are continuing, these arguments must be addressed on summary judgment or at
trial—not on a motion to dismiss. See Gwaltney, 484 U.S. at 66 (noting that as a general rule, a
citizen suit “will not be dismissed for lack of standing if there are sufficient ‘allegations of

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fact’—not proof—in the complaint” and also noting that such allegations may still be challenged
if defendants move for summary judgment on the standing issue, where they may demonstrate to
a court “that the allegations were sham and raised no genuine issue of fact”).
In addition, the Plaintiffs argue that contrary to LG&E and PPL’s position, the terms of
the Agreed Board Order do not bar this suit. The Plaintiffs distinguish the Ellis case by showing
that the language in the Ellis consent decrees is contrary to the Agreed Board Order’s language.
Specifically, the Plaintiffs note that the Ellis decrees were explicitly drafted to cover all the
claims alleged in the citizen-suit complaint. 390 F.3d at 468. Further, the decrees were forward
looking and applied to “continuing [CAA] violations.” Id. at 476. Also, in the Ellis decrees, the
government covenanted not to sue on the claims addressed therein. Id. at 473. According to the
Plaintiffs, these facts are distinct from the present case—and thus, it is not reversible error for the
Court to find that the plaintiffs have alleged a risk of irreparable harm. The Plaintiffs note that
the Agreed Board Order does not purport to address all the Plaintiffs’ claims. Also, it has no
reservation of rights, and it does not contain a covenant not to sue. The Plaintiffs argue that it is

thus improper for the Court to reach a conclusion similar to the one reached by the Ellis court.
“[A] plaintiff must demonstrate standing separately for each form of relief sought.” Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) (citing Los
Angeles v. Lyons, 461 U.S. 95, 109 (1983) (notwithstanding the fact that a plaintiff had standing
to pursue damages, he lacked standing to sue for injunctive relief)). Here, as to the Plaintiffs’
“substantially similar” claims, the Plaintiffs seek declaratory relief, civil penalties, and injunctive
relief. (Compl. [DN 1] 58-59, ¶¶ B, F-G, K.) The Court will consider each type of relief in turn.
a. Declaratory Relief. The Court may easily dispose of the Plaintiffs’ request for declaratory
relief on standing grounds, as declaratory relief is not an appropriate basis to support citizen-suit

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standing, except in special circumstances not present here. Federal courts have explicitly held
that declaratory relief does not support a CAA citizen-suit plaintiff’s claim of standing. See, e.g.,
WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1191 (10th Cir. 2012) (citation
omitted). The Plaintiffs do not dispute this authority or respond to this argument. LG&E and
PPL’s motion to dismiss is thus GRANTED to the extent they seek dismissal of the “substantially
similar” claims which request declaratory relief. These claims are DISMISSED.

b. Civil Penalties. The analysis concerning the Plaintiffs’ request for civil penalties is not
as straight-forward. LG&E and PPL argue, in a footnote, that civil penalties cannot support
citizen-suit standing. Their argument seems to be that civil penalties offer no redress to private
plaintiffs because such penalties are paid to the Government. In support, LG&E and PPL cite
Steel Co., in which the Supreme Court considered the Emergency Planning and Community
Right-To-Know Act and held that in requesting civil penalties, “[a citizen-suit plaintiff] seeks not
remediation of its own injury . . . but vindication of the rule of law—the ‘undifferentiated public
interest’ in faithful execution of [the law].” 523 U.S. at 106. Again, the Plaintiffs did not dispute
the Defendants’ cited authority; they also did not specifically respond to this argument.
In Laidlaw, however, the Supreme Court considered such an argument in a Clean Water
Act case and held that “it is wrong to maintain that citizen plaintiffs facing ongoing violations
never have standing to seek civil penalties.” 528 U.S. at 185. The Court noted that “for a plaintiff
who is injured or faces the threat of future injury due to illegal conduct ongoing at the time of
suit, a sanction that effectively abates that conduct and prevents its recurrence provides a form of
redress. Civil penalties can fit that description.” Id. at 185-86. Thus, the Court finds that in this
case, the Plaintiffs have standing to the extent they seek civil penalties; such relief would afford
redress to the Plaintiffs for the alleged “substantially similar” violations. As was noted in Laidlaw,

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“[t]o the extent that [civil penalties] encourage defendants to discontinue current violations and
deter them from committing future ones, they afford redress to citizen plaintiffs who are injured
or threatened with injury as a consequence of ongoing unlawful conduct.” Id. at 186.
In a similar vein, the Court also finds that the Plaintiffs have made sufficient factual
allegations of injury to confer standing for their “substantially similar” violations. In Laidlaw,
the Supreme Court discussed Steel Co. and recognized that it “established that citizen suitors
lack standing to seek civil penalties for violations that have abated by the time of suit.” 528 U.S.
167, 188 (2000). The Court went on, however, to note that in Steel Co., “there was no allegation
in the complaint of any continuing or imminent violation, and that no basis for such an allegation
appeared to exist.” Id. Here, there is such an allegation. The Plaintiffs have alleged that despite
the Agreed Board Order, “substantially similar violations to those that are the subject of the
APCD NOV’s are continuing on at least a weekly basis at the Cane Run Site because the Cane
Run Defendants have failed to implement measures to control the emission of coal dust, fly ash,
bottom ash, and other particulates . . . .” (Compl. [DN 1] ¶ 193.) The Court agrees with the
Plaintiffs that this is a sufficient allegation of a redressable “injury in fact” as to their claims for
“substantially similar violations” of the CAA.
c. Injunctive Relief. The Court’s finding that the Plaintiffs have adequately alleged injury
in fact as to their “substantially similar” claims, however, does not mandate a finding that this
injury is redressable as to the Plaintiffs’ request for injunctive relief. The Agreed Board Order
states that LG&E has “demonstrated compliance” by submitting to the control plan. Also, it states

that the plan provides “reasonable precautions . . . to prevent particulate matter from becoming
airborne beyond the worksite in the future” and that “nothing shall prevent the District from
initiating enforcement action to remedy any alleged violations of District regulations despite

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[LG&E’s] compliance with the Plan.” (Ag. Bd. Order [DN 29-2] 4.) The Court finds that in light
of these provisions, it cannot redress the Plaintiffs’ claims by entering the requested injunctions.
As LG&E and PPL note, the Plaintiffs ask the Court to impose a zero-tolerance policy on
emissions by implementing “a permanent or final injunction enjoining the Cane Run Defendants
from allowing coal dust, fly ash, bottom ash, or other coal combustion byproducts from escaping
the Cane Run Site.” (Compl. [DN 1] 58, ¶ F.) They also seek “a permanent or final injunction
requiring the Cane Run Defendants to take affirmative measures . . . including but not limited to
reducing the size of the Coal Ash Landfill to its pre-1999 size.” (Id. 58, ¶ G.) The Court agrees
with LG&E and PPL that in making these requests, the Plaintiffs ask the Court to decide issues
which were already decided by the APCD—and reach a different result than it did. This is
impermissible. As the Sixth Circuit noted in Ellis, by seeking injunctive relief on “more stringent
terms than those worked out by the EPA,” the Plaintiffs have improperly asked the Court to
second-guess the regulatory agency’s assessment of an appropriate remedy. The Court cannot
engage in such second-guessing, as doing so would “fail[] 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 has ‘failed’ to do so, not where the EPA has acted
but has not acted aggressively enough in the citizens’ view.” 390 F.3d at 477. LG&E and PPL’s
motion to dismiss is GRANTED to the extent they seek dismissal of the Plaintiffs’ “substantially
similar” claims which seek injunctions. These claims are DISMISSED.
Adequate Notice. Because the Court has held that the Plaintiffs have alleged a redressable
injury in fact as to their claims for “substantially similar violations” of the CAA and their request
for civil penalties, the Court must address LG&E and PPL’s argument that the Plaintiffs failed to
provide adequate notice of these claims. The CAA requires plaintiffs to give defendants (and

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others) a Notice of Intent to Sue (“NOI”). The regulations require the NOI to include “sufficient
information to permit the recipient to identify the specific standard, limitation, or order which
has allegedly been violated, the activity alleged to be in violation, the location of the alleged
violation, [and] the date or dates of such violation . . . .” 40 C.F.R. § 54.3(b). LG&E and PPL
argue that the regulations thus require all NOIs to identify violations with specificity. They also
argue that the Plaintiffs’ NOI failed to identify their “continuing” violations with such specificity.
LG&E and PPL argue that the Plaintiffs’ NOI left them guessing as to when, how, and where the
alleged “substantially similar” violations occurred. (Defs.’ Mem. [DN 29-1] 22-25.)
District courts within the Sixth Circuit have held that notice letters that simply identify a
lengthy period rather than stating the dates of alleged violations are insufficient. See, e.g., Nat’l
Parks Conservation Ass’n, Inc. v. Tenn. Valley Auth., 175 F. Supp. 2d 1071, 1077 (E.D. Tenn.
2001) (holding insufficient a notice that a defendant “regularly violated” the opacity limit, where
the notice failed to specify the dates of the alleged violations or identify at which sites the
violations occurred, but rather only stated that the defendant “regularly violated” the standard
“for at least five years”). LG&E and PPL argue that the Plaintiffs’ NOI is thus insufficient, as it
does not detail with specificity any dates for the “substantially similar” violations. Further, they
argue that the Plaintiffs’ NOI fails to even identify any emission standard or limitation regarding
the alleged “continuing” violations, leaving them to guess as to which violations continued.
The Plaintiffs counter that their NOI was sufficiently specific to satisfy the requirements.
They highlight that the NOI incorporated six NOVs, an APCD study regarding Cane Run, and
LG&E’s Title V permit. The NOVs detail several incidents when LG&E allegedly emitted coal
ash beyond their property. The Plaintiffs state this was sufficient to satisfy the requirements. The
Plaintiffs also argue that the notice only needed to provide enough information for the recipients—

15

here, LG&E and PPL, the alleged polluters—to identify the standard or limit being violated. See
Pub. Interest Research Grp. of N.J., Inc. v. Hercules, Inc., 50 F.3d 1239 (3d Cir. 1995) (reversing
a district court’s dismissal based on lack of specificity in a notice under the Clean Water Act and
holding that the notice must only contain enough information to let the recipient [i.e. polluter]
understand what is being alleged and what it would take to correct the problem).
At the outset of this analysis, the Court notes that the Sixth Circuit has not adopted
Hercules. In fact, district courts within the Sixth Circuit have largely rejected Hercules to the
extent plaintiffs have argued that they should be permitted to prove related violations after
providing a single notice of violation to a defendant. See, e.g., Am. Canoe Ass’n, Inc. v. City of
Louisa Water & Sewer Comm’n, 2009 WL 8520576, at *12 (E.D. Ky. Feb. 27, 2009) (rejecting
Hercules, “which held that once a violation is noticed, any subsequently discovered violations
that are directly related to the noticed violation may be included in the citizen suit”); Stephens v.
Koch Foods, LLC, 667 F. Supp. 2d 768, 787 (E.D. Tenn. 2009) (rejecting the argument that the
plaintiffs were “entitled to prove additional violations of the same type on summary judgment or
at trial without having to include them in additional 60-day notice letters as the violations recur
or are discovered” and noting that Hercules is “not the law of the Sixth”). This Court likewise
rejects the Hercules decision. Instead, the Court will follow the rule in the Sixth Circuit, which
requires plaintiffs to strictly comply with all notice requirements. See Sierra Club Ohio Ch. v.
City of Columbus, 282 F. Supp. 2d 756, 775-76 (S.D. Ohio 2003) (noting the Sixth Circuit’s
view); Atl. States Legal Found. v. United Musical Instruments, 61 F.3d 473, 478 (6th Cir. 1995).
In this case, the Plaintiffs correctly note that they incorporated six NOVs into their NOI.
These NOVs detailed regulations allegedly violated and the dates on which such violations
allegedly occurred. The NOVs also identified the sources on Cane Run that allegedly emitted the

16

ash, and stated that such emissions were regular and continuing occurrences. However, all of the
detailed incidents occurred prior to November 20, 2013, the date of the Agreed Board Order. The
Court finds that because of this fact, the Plaintiffs have not strictly complied with the notice
requirements as to their “substantially similar” claims. A new notice was required. Due to the
Plaintiffs’ failure to detail with specificity their “substantially similar” violations, LG&E and
PPL have been rendered unable to identify emission standards or limitations that they allegedly
violated. Their motion is thus GRANTED. The Plaintiffs’ “substantially similar” claims seeking
civil penalties are DISMISSED. In light of this holding, the Court need not address LG&E and
PPL’s remaining argument that the Plaintiffs failed to satisfy the notice pleading requirements.
Opacity Claim. In addition to their claims for “substantially similar” CAA violations, the
Plaintiffs allege that LG&E and PPL “regularly exceed the 20% opacity limit” in Cane Run’s
Title V permit. (Compl. [DN 1] ¶ 195.) “Opacity” is “the degree to which emissions reduce the
transmission of light and obscure the view of an object in the background.” Reg. 1.02 § 1.49.
LG&E and PPL argue that the Plaintiffs cannot sue for an opacity violation because: (1) the NOI
does not give adequate notice of an opacity claim; and (2) the Plaintiffs have failed to show that
they have standing to sue for any alleged opacity violation. (See Defs.’ Mem. [DN 29-1] 26-27.)
Adequate Notice. LG&E and PPL argue that the Court lacks jurisdiction over the opacity
claims because the Plaintiffs’ NOI does not identify a specific emission point at which an opacity
violation allegedly occurred on any specific date. LG&E and PPL argue that the NOI thus gave
no basis for them to determine whether, where, or when an opacity exceedance occurred. LG&E
and PPL argue that when emissions exceed 20% opacity, that does not necessarily mean that a
violation has occurred. As a result, notice of the specific emission point, as well as the date, time,
and duration of any alleged exceedance, is required. LG&E and PPL state that without such

17

information, they cannot be expected to determine whether a violation occurred and whether it
can be corrected. See Nat’l Parks Conservation Ass’n, 175 F. Supp. 2d at 1077 (holding that
where a notice letter “does not specify the dates of the alleged [opacity] violations or identify at
which sites the violations occurred” and only states that a defendant has “regularly violated” the
opacity standards “for at least the last five years,” the opacity claims must be dismissed).
The Plaintiffs argue that their NOI was detailed, timely, and sent to all required parties.
However, the Court finds that the NOI was not detailed as to the alleged opacity violations. The
NOI states: “[i]n further violation of the CAA, the Cane Run Defendants’ activities regularly
exceed the 20% opacity limit set by the Cane Run site’s Operating Permit, with respect to the
Stacks, the SPP, and the Ash Silo.” (Notice of Intent Letter [DN 1-2] 16.) This allegation of
“regular” opacity violations is not enough. Although the Plaintiffs’ NOI indicates their belief that
LG&E and PPL have violated the opacity limit, it does not specify the dates of alleged violations
or identify any emission point at which an opacity violation allegedly occurred. LG&E and
PPL’s motion to dismiss is accordingly GRANTED, and the Plaintiffs’ opacity claims are
DISMISSED. In light of this holding, the Court need not consider LG&E and PPL’s remaining
argument that the Plaintiffs have failed to allege “injury in fact” to support their opacity claims.
Expiration of Permit. As a final matter, the Plaintiffs allege that the Defendants have
violated the CAA by continuing to operate Cane Run even though LG&E’s Title V operating
permit expired in 2007. (Compl. [DN 1] ¶ 194.) LG&E and PPL argue that this claim fails since
LG&E submitted a timely application for renewal, as confirmed by the public record. (Excerpts
of Title V Permit Renewal App. [DN 29-4]; Receipt for Title V Renewal App. [DN 29-5].) The
CAA states that “if an applicant has submitted a timely and complete application for a permit
required by this subchapter (including renewals), but final action has not been taken on such

18

application, the source’s failure to have a permit shall not be a violation of this chapter, unless
the delay in final action was due to the failure of the applicant timely to submit information
required or requested to process the application.” 42 U.S.C. § 7661b(d). LG&E and PPL argue
that the Court should thus dismiss the Plaintiffs’ claims as deficient. They argue that the Plaintiffs

failed to allege that LG&E and PPL filed no renewal application; likewise, they did not allege
that LG&E and PPL failed to timely submit the information required to process that application.
The Plaintiffs argue that they have sufficiently alleged that the Defendants have continued
to operate Cane Run without a valid Title V permit. (Compl. [DN 1] ¶ 194.) The Plaintiffs state
that by only attaching excerpts of LG&E’s renewal application and a document purporting to be
a receipt, LG&E and PPL have left several questions open, including: (1) whether the renewal
application was complete, (2) whether additional information was requested by the permitting
authority, and (3) whether LG&E timely submitted the application. (Pls.’ Mem. [DN 41] 38.)
The Plaintiffs question what has happened over the past six years that has caused the application
to not be renewed as of yet. Further, the Plaintiffs state that the Court cannot take judicial notice
over the documents proffered by the Defendants, as they are subject to reasonable dispute. See
Passa v. City of Columbus, 123 Fed. App’x 694, 697 (6th Cir. 2005) (noting that a court, “on a
motion to dismiss, must only take judicial notice of facts which are not subject to reasonable
dispute”). The Plaintiffs highlight that the submitted documents do not purport to be the
complete record regarding the application. (See Pls.’ Mem. [DN 41] 38-39.)
The Court finds that the Plaintiffs’ argument is more persuasive. The Plaintiffs allege that
LG&E’s Title V permit expired in 2007 and that the Defendants nonetheless continue to operate
Cane Run. (Compl. [DN 1] ¶ 194.) The Court finds that when it accepts this statement as true,
and draws all reasonable inferences in favor of the Plaintiffs, the Plaintiffs have sufficiently

19

alleged a CAA claim based on LG&E’s alleged operation of Cane Run without a valid permit.
The documents submitted by LG&E and PPL do not purport to be the complete record regarding
the application, and on a motion to dismiss, the Court may not take judicial notice of facts which
are subject to reasonable dispute. Further, even if the Court could properly take judicial notice of
the existence of LG&E’s application, that does not automatically compel the conclusion that
such application was “timely” or “complete.” While LG&E and PPL may properly argue in a
summary judgment motion that no genuine issues of fact exist as to whether they have submitted
a timely and complete application for a permit—and that any delay in final action was not due to
their failure to submit any required or requested information, this issue cannot be properly
decided on a motion to dismiss. LG&E and PPL’s motion is DENIED as to the Plaintiffs’ CAA
claim involving the alleged operation of Cane Run without a valid permit.
B. COUNTS I AND II: RCRA CLAIMS
In Counts I and II of the complaint, the Plaintiffs bring RCRA claims against LG&E and
PPL. These claims are based on the same activities and events which form the basis for the
Plaintiffs’ CAA claims. (Compl. [DN 1] ¶¶ 155-83.) In Count I, the Plaintiffs allege that the
Defendants’ handling of coal combustion residuals at Cane Run violates: (1) Kentucky’s special
waste landfill requirements at 401 KAR Ch. 45 (and the environmental performance standards
incorporated at 401 KAR 30:031); (2) federal municipal solid waste landfill cover and air criteria
standards at 40 C.F.R. § 258.21 and 40 C.F.R. § 258.24; and (3) Kentucky’s cover standard
which is applicable to “contained” landfills at 401 KAR 48:090 § 3. (Id. ¶¶ 163-64.) In Count II,
the Plaintiffs allege that the Defendants’ handling of coal combustion residuals “may present an
imminent and substantial endangerment to health or the environment,” in violation of 42 U.S.C.
6972(a)(1)(B). (Id. ¶ 182.) LG&E and PPL argue that these claims must be dismissed.

20

Pre-Suit Notice. LG&E and PPL first argue that the Plaintiffs have not given sufficient
notice of the alleged RCRA violations. As with the CAA, RCRA contains notice requirements,
which require plaintiffs to include “sufficient information to permit the recipient to identify” the
specific standard or regulation allegedly violated, the activity alleged to constitute a violation,
and the date or dates of the violation. 40 C.F.R. § 254.3(a). LG&E and PPL argue that “[a]s with
their generic CAA claims in ¶¶ 193, 197 and 195, Plaintiffs have failed to provide notice of the
specific nature, circumstances, date or duration of the alleged RCRA violations.” (Defs.’ Mem.
[DN 29-1] 30.)
In their NOI, the Plaintiffs state that the “specific dates of violations of RCRA . . . are, on
information and belief, daily or near daily since at least 2008 . . . .” (NOI Letter [DN 1-2] 9 n.2.)
LG&E and PPL argue that this is insufficient to give them adequate notice of the alleged RCRA
violations. LG&E and PPL argue that the Plaintiffs have similarly failed to give adequate notice
of their storm water claims, as the NOI fails to provide the date of a violation, the location of an
outfall, or a description of the nature of a violation—stating only that “emissions are regularly in
the form of dust traveling in the air, as well as in the form of storm water runoff from the Cane
Run site,” which emissions take place “on at least a weekly basis since at least 2008.” (Id. at 9.)
In response to this argument, the Plaintiffs again rely on Hercules. They also argue that their NOI
contained enough detail, as it incorporated the NOVs, which list examples of dates and times on
which LG&E allegedly violated regulations. (Pls.’ Mem. [DN 41] 30-31.)
The Court finds that the NOI contained sufficient detail with respect to the RCRA claims
which are based on alleged emissions documented, by date and time, in the NOVs. However, as
for the RCRA claims involving “ongoing” violations, LG&E and PPL’s position is more
persuasive. For the reasons outlined above with respect to the Plaintiffs’ CAA “substantially

21

similar” claims, the Court finds that the Plaintiffs have failed to provide sufficient notice of the
specific nature, circumstances, date, or duration of any alleged “ongoing” RCRA violations. A
broad statement that such violations occur “daily or near daily since at least 2008” is insufficient.
The Court also finds that the Plaintiffs’ NOI similarly failed to give adequate notice of their
storm water claims. Therefore, as to the Plaintiffs’ RCRA claims for “ongoing” violations and
the Plaintiffs’ storm water claims, LG&E and PPL’s motion is GRANTED. Such claims are
DISMISSED. The Court notes that as for the Plaintiffs’ other RCRA claims, they are
nonetheless subject to dismissal, as a matter of law, for the reasons outlined below.
Count I Claims under 42 U.S.C. § 6972(a)(1)(A). LG&E and PPL argue that even if the
Plaintiffs have sufficiently provided notice, the Count I claims fail because: (1) the claims
alleging violations of 401 KAR Ch. 45 and 401 KAR 30:031 §§ 9 and 11 are not “effective
pursuant to” RCRA and are not enforceable in a citizen suit; (2) even if such claims were
“effective pursuant to” RCRA, the claims regarding fugitive air emissions are not redressable;
and (3) the claims alleging violations of 40 C.F.R. § 258 and 401 KAR Ch. 48 are inapplicable to
Cane Run and were not properly noticed. (See Defs.’ Mem. [DN 29-1] 31-36.)
Claims Alleging Violations of 401 KAR Ch. 45 and 401 KAR 30:031 are Not “Effective
Pursuant to” RCRA. Count I is based on 42 U.S.C. § 6972(a)(1)(A), which provides that “any
person may commence a civil action on his own behalf . . . against any person . . . who is alleged
to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or
order which has become effective pursuant to [RCRA].” 42 U.S.C. § 6972(a)(1)(A) (emphasis
added). The bulk of Count I alleges violations of requirements under Kentucky’s special waste
program and the environmental performance standards referenced therein. (See Compl. [DN 1]
¶¶ 164(a)-(h) (alleging violations of 401 KAR Ch. 45 and 401 KAR 30:031).) LG&E and PPL

22

argue that while these standards and requirements are applicable to Cane Run, they are not
enforceable in a RCRA citizen suit since they are not “effective pursuant to RCRA.” Rather, 401
KAR Ch. 45 and the cited performance standards are a state-law program that is enforceable only
under state law. (See Defs.’ Mem. [DN 29-1] 31.)
In support of their position, LG&E and PPL cite Ashoff v. City of Ukiah, 130 F.3d 409,
411 (9th Cir. 1997), in which the Ninth Circuit found certain state municipal solid waste program
regulations effective pursuant to RCRA after the “EPA approved” them, to the extent that those
regulations were not more stringent than the federal criteria. Id. at 412. LG&E and PPL suggest
that this case shows that at a minimum, to be effective pursuant to RCRA, a state regulation,
program, or other requirement must be approved or authorized by the EPA. They also note that

other district court cases have drawn similar conclusions. See, e.g., Frontier Recovery, LLC v.
Lane Cnty., 727 F. Supp. 2d 968, 972 (D. Or. 2010) (“a state program must be authorized by the
EPA to ‘become effective pursuant to’ RCRA”); Cameron v. Peach Cnty., Ga., 2004 WL
5520003, at *18-19 (M.D. Ga. June 28, 2004) (noting that citizen suits are not confined to the
provisions contained in RCRA if the state standards are approved by the EPA).
Coal combustion residual waste is currently regulated under Subtitle D of RCRA. 75 Fed.
Reg. 35,144 (June 21, 2010). Subtitle D establishes a framework for federal, state, and local
government cooperation in controlling and managing this non-hazardous solid waste. Id. at
35,136. Under this framework, the “actual planning and direct implementation of solid waste
programs under RCRA subtitle D . . . remains a state and local function . . . .” Id. Indeed, the
“EPA has no role in the planning and direct implementation of solid waste programs under
RCRA subtitle D.” Id.; see also id. at 35,159 (“Subtitle D provides no federal oversight of state
programs as it relates to coal combustion residuals.”). LG&E and PPL argue that because the

23

EPA has not reviewed or adopted Kentucky’s special waste permit program or the environmental
performance standards set out under 401 KAR 30:031, it is clear that 401 KAR Ch. 45 and 401
KAR 30:031 are not “effective pursuant to” RCRA and are not federally enforceable through a
RCRA citizen suit. The Defendants state that there is simply no special waste permit program
currently applicable to coal combustion residual wastes at the federal level.
The Plaintiffs’ response is somewhat difficult to discern. First, the Plaintiffs contend that
they can sue under RCRA, as well as under any of Kentucky’s environmental regulations listed
in the complaint. (Pls.’ Resp. [DN 41] 32-34.) In support of this position, the Plaintiffs state that
the fact that the EPA has not promulgated regulations specifically regulating coal combustion
byproducts only means that such wastes are governed by the existing Subtitle D regulations of
RCRA. (Id. at 32-33.) Second, the Plaintiffs argue that unlike hazardous waste programs under
Subtitle C of RCRA, approved state solid waste programs under Subtitle D do not operate “in
lieu of” RCRA. See 61 Fed. Reg. 2,584; 2,587 (Jan. 26, 1996) (“Subtitle D does not provide for
State/Tribal requirements to operate ‘in lieu of’ the Subtitle D Federal revised criteria.”)
According to the Plaintiffs, LG&E and PPL wrongly contend that Kentucky’s municipal solid
waste landfill regulatory program must be EPA-approved to operate in lieu of federal regulations.
Third, the Plaintiffs argue that because state solid waste programs do not operate in lieu
of RCRA’s statutory and regulatory provisions, RCRA citizen suits may be brought to enforce
RCRA’s provisions in states with approved solid waste management programs. See Ashoff, 130
F.3d at 411-12 (“The Subtitle D Federal revised criteria are applicable to all Subtitle D regulated
entities, regardless of whether EPA has approved the State/Tribal permit program. Violation of
these criteria may subject the violator to a citizen suit in Federal court.”). Thus, the Plaintiffs
state that regardless of whether they can sue under Kentucky’s regulations, they are permitted to

24

bring suit under RCRA. Finally, the Plaintiffs note that the Defendants have conceded that
Kentucky’s solid waste landfill regulatory program was approved by the EPA. (See Defs.’ Mem.
[DN 29-1] 35 n.23 (citing 58 Fed. Reg. 35,454 (July 1, 1993) and noting that Kentucky’s
municipal solid waste landfill regulatory program has been EPA-approved).) Thus, the Plaintiffs

argue that they can sue under RCRA or any of Kentucky’s environmental regulations.
After making these general arguments, the Plaintiffs turn to specific arguments regarding
401 KAR 30:031 and 401 KAR Ch. 45. As for 401 KAR 30:031, the Plaintiffs argue that §§ 9
and 11 are, in fact, “effective pursuant to” RCRA. The Plaintiffs note that 401 KAR 30:005 sets
forth definitions for Kentucky’s waste management program and lists 401 KAR Ch. 30 as among
chapters having a federal RCRA counterpart. See 401 KAR 30:005. The Plaintiffs argue that this
listing shows that 401 KAR Ch. 30 was adopted pursuant to RCRA. (See Pls.’ Mem. [DN 41]
34-35.) Also, the Plaintiffs note that 401 KAR 30:005 delineates where Kentucky regulations
differ from their federal counterparts—and none of Kentucky’s revisions to RCRA include
changes to 401 KAR 30:031 §§ 9 or 11. Therefore, the Plaintiffs argue that they can bring a
RCRA claim for violations of those regulations. (See id.)
As for 401 KAR Ch. 45, the Plaintiffs begin by noting that the chapter addresses “special
wastes,” which include coal combustion waste. See KRS § 224.50-760. The term “special waste”
is drawn from EPA proceedings which led to the exemption of “fly ash waste, bottom ash waste,
slag waste, and flue gas emission control waste from regulation under Subtitle C” of RCRA. See
Appalachian Voices v. McCarthy, -- F. Supp. 2d --, 2013 WL 5797633, at *3 (D.D.C. Oct. 29,
2013). Thus, the Plaintiffs argue that Kentucky has drawn its designation of fly ash, bottom ash,
and other coal combustion byproducts directly from the EPA’s interpretation of RCRA.
According to the Plaintiffs, because Kentucky’s solid waste regulations do not operate in lieu of

25

RCRA, whether Kentucky calls these wastes “special” or not, they remain “solid wastes”
regulated under RCRA Subtitle D. 40 C.F.R. § 261.4(b)(4); 61 Fed. Reg. 2584, 2587 (Jan. 26,
1996). Thus, Kentucky’s regulations governing special wastes, codified at 401 KAR Ch. 45, are
“solid waste” regulations. The Plaintiffs argue that any doubt that Kentucky’s “special waste”
regulations are effective pursuant to RCRA is dispelled by KRS § 244.50-760, which provides
for the classification of “fly ash, bottom ash, scrubber sludge,” and other materials as “special
wastes” to be regulated consistent with RCRA. KRS § 224.50-760(1)(b).
The Court agrees with LG&E and PPL that 401 KAR Ch. 45 and 401 KAR 30:031 are
not “effective pursuant to” RCRA. As LG&E and PPL point out in their reply, the Plaintiffs
incorrectly argue that because coal combustion residuals are “solid wastes” under RCRA Subtitle
D, Kentucky’s special waste regulations in 401 KAR Ch. 45 and the environmental performance
standards in 401 KAR 30:031 §§ 9 and 11 are “effective pursuant to” RCRA and enforceable
under that statute. The fact that coal combustion residuals are “solid wastes” under Subtitle D of
RCRA does not mean that state standards for coal combustion residual landfills are approved by
the EPA. As the Defendants highlight, there is simply no federal counterpart to Kentucky’s
special waste permit program. See 75 Fed. Reg. 35,159 (June 21, 2010) (“Subtitle D [of RCRA]
provides no federal oversight of state programs as it relates to coal combustion residuals.”).
While the waste permit program’s standards are applicable to Cane Run, they simply are not
“effective pursuant to” RCRA and cannot form the basis of the Plaintiffs’ Count I claims.
Further, the Court finds that the Plaintiffs wrongly rely on Kentucky’s EPA-approved
Subtitle D program, which relates to municipal solid wastes and not coal combustion residual
landfills. Moreover, the Plaintiffs point to no EPA authorization or approval of 401 KAR Ch. 45
or 401 KAR 30:031, the state Subtitle D standard. In fact, as LG&E and PPL note, the Plaintiffs

26

do not even respond to the cited cases requiring EPA approval of a state program for that program

to be deemed “effective pursuant to” RCRA. Merely because a Kentucky regulation refers to
RCRA does not make it “effective pursuant to” RCRA. LG&E and PPL’s motion is GRANTED
in this respect. To the extent the Plaintiffs’ claims in Count I are based on 401 KAR Ch. 45 and
401 KAR 30:031, they are DISMISSED. In light of this holding, the Court need not consider
LG&E and PPL’s related argument that even if such claims were “effective pursuant to” RCRA,
the Count I claims concerning fugitive air emissions are not redressable.
Applicability of 40 C.F.R. § 258 and 401 KAR Ch. 48. The only other claims in Count I
allege violations of 40 C.F.R. § 258 and 401 KAR Ch. 48. (Compl. [DN 1] ¶¶ 163-64.) LG&E
and PPL argue that these claims fail because the cited regulations do not apply to Cane Run.
Further, they argue that the claims fail because they have not been properly noticed.
Paragraph 163 of the complaint alleges that the Defendants’ activities violate “RCRA’s
requirement that a solid waste landfill . . . be properly covered in accordance with 40 CFR
258.21 and that a solid waste landfill comply with the air criteria set forth at 40 CFR 258.24.”
(Compl. [DN 1] ¶ 163.) Importantly, 40 C.F.R. § 258 establishes criteria and standards applicable
to “municipal solid waste landfills.” A “municipal solid waste landfill” is defined as a landfill
“that receives household solid waste,” i.e. “any solid waste (including garbage, trash, and
sanitary waste in septic tanks) derived from households.” 40 C.F.R. § 258.2. LG&E and PPL
argue that the landfill here does not meet this definition, as it does not receive household waste.
Paragraph 164(i) of the complaint further alleges that the Defendants are in violation of
401 KAR 48:090 § 3 “for failing to properly place covering materials on all solid wastes contained
in the Coal Ash Landfill, Ash Treatment Basin and ash ponds.” (Compl. [DN ¶ 164.) LG&E and
PPL state that 401 KAR 48:090 is inapplicable here because it sets forth requirements applicable

27

to “contained landfills.” A “contained landfill” is defined as a “solid waste site or facility that
accepts solid waste for disposal.” 401 KAR 48:005. The term “solid waste” expressly excludes
“special wastes,” as defined in KRS § 224.50-760. KRS § 224.1-010(31)(A). LG&E and PPL
argue that here, because only “special wastes” are disposed of in the landfill, the requirements
for “contained landfills” do not apply. (Defs.’ Mem. [DN 29-1] 34-36.)
Further, LG&E and PPL argue that these claims fail for the independent reason that they
have not been adequately noticed. They state that the Plaintiffs’ NOI does not mention, discuss,
or cite 40 C.F.R. § 258 or 401 KAR 48:090 in support of their claims. See United States v.
Louisiana-Pacific Corp., 682 F. Supp. 2d 1141, 1155 (D. Colo. 1988) (noting that a plaintiff
cannot “expand [a suit] beyond the specific violations alleged in th[e] letter”).
The Plaintiffs respond that the coal ash landfill at Cane Run meets RCRA’s definition of
a “municipal waste solid landfill” and is thus subject to 40 C.F.R. § 258. The Plaintiffs cite the
second sentence in RCRA’s definition of “municipal solid waste landfill,” which states that such
a landfill “also may receive other types of RCRA Subtitle D wastes, such as commercial solid
waste, nonhazardous sludge, conditionally exempt small quantity generator waste, and industrial
solid waste.” 40 C.F.R. § 258.2. “Industrial solid waste” includes coal combustion byproducts.
Id. (noting that “industrial solid waste” is “solid waste generated by manufacturing or industrial
processes that is not a hazardous waste regulated under subtitle C of RCRA” and noting that such
waste may include waste from electric power generation). The Plaintiffs thus argue that the
regulation is applicable. The Plaintiffs argue that coal combustion byproducts are “solid wastes”
under RCRA and, in this case, were produced by electric power generation. Therefore, Cane Run
is properly subject to the RCRA regulations on which the Plaintiffs sue in Count I. (See Pls.’
Mem. [DN 41] 36-37.)

28

The Court disagrees with the Plaintiffs’ argument. In their response brief, the Plaintiffs
overlook the first sentence of the definition for “municipal solid waste landfill,” which states that
such a landfill must receive “household waste.” 40 C.F.R. § 258.2. The plain language of the
“municipal solid waste landfill” definition indicates that if a landfill receives household waste, it
is a municipal solid waste landfill—and the fact that it might also receive other types of solid
waste is irrelevant. If a landfill does not receive household waste, however, it is not a municipal
solid waste landfill. LG&E and PPL’s argument is the correct interpretation of the definition.
Further, the Court finds that LG&E and PPL’s argument is correct to the extent they argue that
401 KAR 48:090 is inapplicable here because it sets forth requirements applicable to “contained
landfills.” A “contained landfill” is defined as a “solid waste site or facility that accepts solid
waste for disposal,” 401 KAR 48:005, and the term “solid waste” expressly excludes “special
wastes,” as defined in KRS § 224.50-760. KRS § 224.1-010(31)(A). LG&E and PPL also correctly

note that the Plaintiffs’ NOI was insufficient regarding the alleged violations of these standards,
as the Plaintiffs did not cite 401 KAR 48:090 or 40 C.F.R. § 258.24 in their NOI. LG&E and
PPL’s motion to dismiss is accordingly GRANTED. The claims are DISMISSED to the extent
they are based on 40 C.F.R. § 258 and 401 KAR Ch. 48.
Count II Claims under 42 U.S.C. § 6972(a)(1)(B). LG&E and PPL next turn their
attention to the Plaintiffs’ claims in Count II. As noted above, in Count II, the Plaintiffs allege
that LG&E and PPL’s handling of coal combustion residuals “may present an imminent and
substantial endangerment to health or the environment.” (Compl. [DN 1] ¶ 182.) LG&E and PPL
argue that the Count II claims fail as a matter of law because: (1) the claims reflect an improper
collateral attack on the facility’s Title V Air Emission Permit, Storm Water Discharge Permit,
Special Waste Landfill Permit, and the Agreed Board Order, and are otherwise moot and not

29

redressable; and (2) the claims cover materials which are more properly regulated under the
CAA—not under RCRA, which deals with the handling, storage, treatment, transportation, or
disposal of solid or hazardous waste. (See Defs.’ Mem. [DN 29-1] 36-40.)
Improper Collateral Attack—and Otherwise Moot and Non-redressable. As noted above,
the Plaintiffs’ prayer for relief seeks to enjoin the Defendants “from allowing coal dust, fly ash,
bottom ash, or other coal combustion by-products from escaping the Cane Run Site.” It also
seeks to require the Defendants “to take affirmative measures that will ensure that coal dust, fly
ash, bottom ash, or other coal combustion by-products will not escape the Cane Run Site . . . .”
LG&E and PPL argue that this requested injunctive relief is, in essence, a collateral attack on the
Title V Air Emission Permit for Cane Run (which authorizes fly ash and other emissions under
the terms and conditions of Cane Run’s permit), the Special Waste Landfill Permit, the KPDES
Permit (which authorizes suspended solids, including fly ash and storm water discharges), and
the control plan implemented pursuant to the Agreed Board Order. They state that an “imminent
and substantial endangerment” citizen suit is not available, regardless of context, to enjoin
emissions of solid waste that are authorized by a permit for such a facility. (See id. at 36-38.)
In support of their position, LG&E and PPL cite Greenpeace, Inc. v. Waste Technologies
Indus., 9 F.3d 1174 (6th Cir. 1993). In that case, the Sixth Circuit held that a waste operator’s
compliance with the terms of its RCRA permit precluded a district court’s jurisdiction under 42
U.S.C. § 6972(a)(1)(B) to challenge properly permitted activity. The Court reasoned:
[W]hen Greenpeace alleged in its complaint that the test burn and post-test burn
would present an imminent and substantial endangerment, it was asking the
district court to review and enjoin the EPA administrator’s permit decision . . . . If
Greenpeace was prepared to demonstrate that the U.S. EPA disregarded an
imminent hazard at the time it issued the permit for the test burn and post-test
burn period, 42 U.S.C. § 6976(b) required Greenpeace to bring its appeal directly
to this court within ninety days. Because that was not done, Greenpeace forfeited

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any opportunity for judicial review of the claims that could have been raised by
appealing the RCRA permit amendments in 1992.
Id. at 1182. LG&E and PPL argue that a similar rationale applies here, as the Plaintiffs had an
opportunity to challenge the terms and conditions of the Special Waste Landfill Permit, the Title
V Air Emission Permit, the KPDES Permit, and most recently, the Agreed Board Order.
Under KRS § 77.310(2), anyone aggrieved by a district’s order or permitting decision
may challenge the permit or order by “fil[ing] with the district a petition for a hearing.” KRS §
77.310(2). LG&E and PPL argue that the Plaintiffs should have gone this route, if they desired to
challenge the APCD’s decision regarding LG&E’s compliance at Cane Run. LG&E and PPL
argue that under the Greenpeace decision, RCRA’s citizen-suit provisions do not permit a
collateral attack on permit requirements or the Agreed Board Order via a demand injunctive
relief. See Chemical Weapons Working Grp., Inc. v. U.S. Dep’t of the Army, 111 F.3d 1485,
1492 (10th Cir. 1997) (“Because Plaintiffs’ imminent hazard claim essentially attacks Utah’s
decision to issue the Army a [RCRA] permit, we conclude that the district court properly refused
to recognize jurisdiction under § 6972(b).”); Palumbo v. Waste Techs. Indus., 989 F.2d 156, 159
(4th Cir. 1993) (“At bottom, plaintiffs’ complaint is nothing more than a collateral attack on the
prior permitting decisions of [the EPA]. The RCRA judicial review provision plainly forbids
such an attack . . .”).
The Plaintiffs respond that the facts of Greenpeace are inapposite to the facts of this case.
In Greenpeace, after an eighteen-month permitting process, the state regulator issued a permit to
a waste treatment facility, allowing the facility to conduct limited burn operations. The plaintiffs
brought a court action to enjoin the same operations the regulators permitted. 9 F.3d at 1177. The
court found this to be an improper collateral attack on the issued permit. The Plaintiffs state that

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this case is different, as the Plaintiffs do not ask the Court to overrule a permit. Instead, they ask
the Court to enforce the limits and conditions in LG&E’s permits. (Pls.’ Mem. [DN 41] 34.)
Even though the Plaintiffs do not ask the Court to overrule an issued permit, as in
Greenpeace, the Court agrees with LG&E and PPL that the rationale underlying Greenpeace is
applicable to this case and requires this Court to refuse to recognize jurisdiction under 42 U.S.C.
§ 6972(a)(1)(B). In Greenpeace, the Sixth Circuit recognized that the plaintiff’s complaint
amounted “to nothing more than an improper collateral attack on the prior permitting decisions
of the U.S. EPA . . . .” 9 F.3d at 1178. Here, the Plaintiffs’ complaint similarly amounts to
nothing more than an improper collateral attack on LG&E’s permits, which authorize emissions,
and on the APCD’s decision concerning the limits and conditions in those permits. KRS §
77.310(2) provides an avenue by which the Plaintiffs could have properly challenged LG&E’s
permits, or the APCD’s order and its determinations. The Court finds that the Plaintiffs should
have taken that approach prior to filing a “substantial endangerment” suit under 42 U.S.C. §
6972(a)(1)(B). Further, the Court finds that because the Plaintiffs’ claims for injunctive relief
under RCRA must be dismissed, their claims for civil penalties must also be dismissed. A citizen
suit under RCRA cannot be maintained for civil penalties absent injunctive relief. See Gwaltney,
484 U.S. at 58 (noting that under the Clean Water Act’s citizen-suit provision, which is
substantively similar to 42 U.S.C. § 6972, civil penalties may not be awarded separately from
injunctive relief); Sánchez v. Esso Std. Oil de Puerto Rico, Inc., 2010 WL 3087485, at *2
(D.P.R. Aug. 5, 2010) (applying Gwaltney to a RCRA citizen suit). LG&E and PPL’s motion to
dismiss is GRANTED in this respect; the Plaintiffs’ claims in Count II must be DISMISSED. In
light of this holding, the Court need not address LG&E and PPL’s remaining argument, which is
whether the Plaintiffs’ claims in Count II improperly cover materials regulated under the CAA.

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C. COUNT IV-IX: STATE-LAW CLAIMS
LG&E and PPL next argue that the Plaintiffs’ state-law claims must be dismissed because
through the guise of these claims, the Plaintiffs ask the Court to regulate Cane Run’s emissions.
According to LG&E and PPL, all of the Plaintiffs’ state-law claims are preempted by the CAA.
(See Defs.’ Mem. [DN 29-1] 40.) “Field preemption” occurs where the scheme of federal
regulation is “so pervasive as to make reasonable the inference that Congress left no room for the
States to supplement it.” N.C., ex rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291, 303 (4th Cir.
2010) (quoting Pac. Gas & Elec. Co. v. St. Energy Res. Conservation & Dev. Comm’n, 461 U.S.
190, 204 (1983)). “Conflict preemption” includes claims where state law “interferes with the
methods by which the federal statute was designed to reach [its] goal.” Id. (quoting Int’l Paper
Co. v. Ouellette, 479 U.S. 481, 494 (1987)). LG&E and PPL argue that both of these doctrines
apply to bar the Plaintiffs’ claims. In Am. Electric Power Co. v. Connecticut, the Supreme Court
held that federal common-law claims are displaced by the CAA. 131 S. Ct. 2527, 2540 (2011)
(“AEP”). However, neither the Supreme Court nor the Sixth Circuit have specifically addressed
whether the CAA preempts a plaintiff’s state common-law tort claims.
LG&E and PPL argue that with the CAA, Congress enacted a comprehensive, pervasive
regime for joint federal and state regulation of air emissions. United States v. DTE Energy Corp.,
711 F.3d 643, 649 (6th Cir. 2013) (“Over several decades of regulation and litigation, EPA has
created a system intended to protect air quality, conserve environmental agencies’ scarce
resources, and minimize costs for regulated industries.”); N.C., ex rel. Cooper, 615 F.3d at 298
(“To say this regulatory and permitting regime is comprehensive would be an understatement.”).
They argue that this framework leaves “no room for a parallel track” where private plaintiffs can
side-step the expert federal and state agencies through lawsuits seeking to establish common-law

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restrictions on emissions inconsistent with those established under the CAA. (Defs.’ Mem. [DN
29-1] 40-47.) In this respect, LG&E and PPL begin by addressing Ouellette and AEP.
In Ouellette, Vermont landowners sued a New York paper mill for common-law nuisance
under Vermont law. The parties disputed whether the Vermont landowners’ state common-law
claims against the New York paper mill were preempted under provisions of the Clean Water

Act. The Supreme Court held that the Clean Water Act preempted suits arising under the law of
Vermont (the affected state), as the “inevitable result” of allowing such suits “would be a serious
interference with the achievement of the ‘full purposes and objectives of Congress.’” 479 U.S. at
493. The Court noted, however, that the plaintiffs could proceed under the law of New York (the
source state). Id. at 494-98. In this respect, the Court reasoned:
[t]he CWA precludes only those suits that may require standards of effluent
control that are incompatible with those established by the procedures set forth in
the Act. The saving clause specifically preserves other state actions, and therefore
nothing in the Act bars aggrieved individuals from bringing a nuisance claim
pursuant to the law of the source State.
Id. at 497. While the Court recognized that a source state’s “nuisance law may impose separate
standards and thus create some tension with the permit system,” it ultimately determined that the
application of that law would “not disturb the balance among federal, source-state, and affectedstate interests.” Id. at 499.
In AEP, the Supreme Court analyzed the CAA’s preemptive scope with regard to federal
common-law claims, holding that nuisance claims under federal law “cannot be reconciled with
the decision-making scheme Congress enacted” in the CAA. 131 S. Ct. at 2540. In so holding,
the Court reasoned that Congress’ “prescribed order of decision-making”—in which “the first
decider under the Act is the expert administrative agency” and courts participate through “review
[of] agency action”—provides a compelling reason to “resist setting emissions standards by

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judicial decree” via federal common-law. Id. at 2539. The Court intentionally refrained, however,

from deciding whether state-law nuisance claims were preempted, as the parties had not briefed
the issue. Id. at 2540. The Court only stated that “the availability vel non of a state lawsuit
depends, inter alia, on the preemptive effect of the federal Act,” and that “[l]egislative
displacement of federal common law does not require the same sort of evidence of a clear and
manifest congressional purpose demanded for preemption of state law.” Id.
LG&E and PPL argue that these cases compel the conclusion that the Plaintiffs’ state-law
claims are preempted. They argue that the functional concerns that led the Supreme Court in both
Ouellette and AEP to find that the applicable statute preempted the asserted common-law claims
apply with full force here. (See Defs.’ Mem. [DN 29-1] 46.) LG&E and PPL highlight that other
courts have relied on these cases to hold that the CAA preempts state common-law claims. In
specific, they cite the Fourth Circuit’s decision in N.C., ex rel. Cooper v. Tenn. Valley Authority.
There, the Court found state common-law claims to be preempted by the CAA, 615 F.3d at 298,
reasoning that Ouellette was “emphatic that a state law is preempted if it interferes with the methods

by which the federal statute was designed to reach its goal, admonished against the toleration of
common-law suits that have the potential to undermine the regulatory structure, and singled out
nuisance standards in particular as vague and indeterminate.” Id. at 303 (internal alterations and
quotations omitted). LG&E and PPL urge this Court to follow the Fourth Circuit and recognize
the “considerable potential mischief” in permitting state common-law actions. Id.; see Nature
Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012) (CAA displaced a federal
common-law claim for public nuisance); Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849,
865 (S.D. Miss. 2012) (CAA preempted state-law nuisance, trespass, and negligence claims);

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United States v. EME Homer City Generation L.P., 823 F. Supp. 2d 274, 296-97 (W.D. Penn.
Oct. 12, 2011) (CAA preempted state common-law public nuisance claims).1
The Plaintiffs argue that the CAA does not preempt their state-law claims. They begin by
citing Her Majesty the Queen in Rte. of Prov. of Ontario v. City of Detroit, 874 F.2d 332, 343
(6th Cir. 1989) (“Her Majesty”). In that case, several environmental groups brought claims
against the City of Detroit related to the proposed construction of a municipal trash incinerator.
The case was removed from a Michigan state court, and the district court denied the plaintiffs’
motion to remand on the basis that their state-law statutory claims were preempted by the CAA.
Id. at 333-34. On appeal, the Sixth Circuit addressed the issue of preemption with regard to the
state-law claims. It held that the “plain language of the CAA’s savings clause compels the
conclusion” that the CAA did not preclude the plaintiffs’ statutory claims. Id. at 343. The Sixth
Circuit found that language from the CAA “clearly indicates that Congress did not wish to
abolish state control.” Id. The Court also considered the Ouellette case, stating: “[T]hat Congress
did not seek to preempt actions such as involved in this appeal is clearly indicated by the Court’s
holding in [Ouellette].” Id. at 344. However, this decision only goes so far with regard to the
facts of this case; the Sixth Circuit has not considered state common-law claims. The Plaintiffs
argue that the decision is still important because it foreshadows how the Sixth Circuit will
approach the issue. (See Pls.’ Mem. [DN 41] 8-11, 14-16.)
1

LG&E and PPL also argue that contrary to the CWA’s saving clause, which the Supreme Court found to preserve
other state actions, Ouellette, 479 U.S. at 497, the CAA’s saving clauses do not have that effect.
42 U.S.C. § 7604(e) states: “Nothing in this section shall restrict any right which any person . . . may have .
. . to seek enforcement of any emission standard or limitation or to seek any other relief . . . .” 42 U.S.C. § 7604(e).
LG&E and PPL argue that this clause only provides that the creation of a citizen-suit cause of action does not itself
preempt other causes of action that might exist; it says nothing about the preemptive effect of other sections of the
CAA. (Defs.’ Reply [DN 42] 11.)
42 U.S.C. § 7416 states: “nothing in this [Act] shall preclude or deny the right of any State or political
subdivision thereof to adopt or enforce (1) any standard or limitation . . . or (2) any requirement respecting control or
abatement of air pollution.” 42 U.S.C. § 7416. LG&E and PPL argue that this clause only allows states and political
subdivisions to establish affirmative standards; it does not authorize judges or juries to use common law to impose
retroactively their own, different emission limits. (Defs.’ Reply [DN 42] 11.)
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The Plaintiffs urge the Court to accept the Third Circuit’s position on the issue. In Bell v.
Cheswick, the defendant moved to dismiss the plaintiff’s state-law tort claims on the grounds of
preemption, arguing that allowing such claims would “undermine the [CAA]’s comprehensive
scheme, and make it impossible for regulators to strike their desired balance in implementing
emissions standards.” 734 F.3d 188, 193 (3d Cir. 2013). Based on Ouellette and Her Majesty, the
Third Circuit held that the CAA “does not preempt state common law claims based on the law of
the state where the source of the pollution is located.” Id. at 197. The Plaintiffs note that other
courts, including the Western District of Kentucky, have similarly held that the CAA does not
preempt state common-law claims. See, e.g., Tech. Rubber Co. v. Buckeye Egg Farm, L.P., 2000
WL 782131 (S.D. Ohio June 16, 2000); Gutierrez v. Mobil Oil Corp., 798 F. Supp. 1280, 1285
(W.D. Tex. 1992); Merrick v. Diageo Americas Supply, Inc., No. 3:12-CV-334-CRS, -- F. Supp.
2d --, 2014 WL 1056568 (W.D. Ky. Mar. 18, 2014).2
The Court agrees with Judge Simpson’s recent decision in Merrick that “the analysis as
set forth by the Third Circuit, coupled with the Sixth Circuit’s analysis in Her Majesty, captures
the prevailing law for CAA preemption. In the years since the Supreme Court’s ruling in [AEP]
that the CAA displaces federal common-law claims, courts have increasingly interpreted the
CAA’s savings clause to permit individuals to bring state common-law tort claims against
polluting entities. This interpretation has been cited with approval by a Kentucky trial court, and
it corresponds with longstanding Sixth Circuit precedent.” 2014 WL 1056568, at *9. Therefore,
the Court finds that the Plaintiffs’ state common-law tort claims are not preempted by the CAA.
LG&E and PPL’s motion to dismiss is DENIED in this respect.

2

The Court recognizes that LG&E and PPL have filed a Notice of Supplemental Authority [DN 47] concerning the
Merrick decision. In it, they note that Judge Simpson has granted the defendant’s motion to certify for appeal the
portion of its ruling holding that the plaintiffs’ state common-law claims were not preempted by the Clean Air Act.
The Court also recognizes that the Plaintiffs have filed a response to this notice [DN 48].
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D. PLAINTIFFS’ CLAIMS AGAINST PPL
As a final matter, the Defendants urge the Court to dismiss the Plaintiffs’ CAA and
RCRA claims against PPL. They argue that the Plaintiffs’ CAA claims must be dismissed since
the complaint contains no allegation that PPL itself violated any emission standard or limitation.
They argue that the Plaintiffs’ RCRA claims must be dismissed since the complaint contains no
allegations that could support the conclusion that PPL itself violated any permit or regulation at
Cane Run—or otherwise was involved in the management or disposal of wastes at the facility.
The Defendants state that the complaint’s allegations make clear that LG&E—not PPL—owns
and operates Cane Run. (Compl. [DN 1] ¶¶ 25-27.) Further, the APCD issued Cane Run’s Title
V operating permit to LG&E—not PPL. (Id.) The NOVs relied on by the Plaintiffs to support
their claims also name only LG&E. The Defendants argue that in light of these facts, the
Plaintiffs have failed to state a claim against PPL. (See Defs.’ Mem. [DN 29-1] 48-49.)
Also, the Defendants argue that the Plaintiffs’ NOI allegations are insufficient under the
CAA and RCRA notice provisions as to PPL, as the NOI fails to provide information as to any
conduct by PPL that caused or contributed to the alleged violations. The NOI only states that
PPL “acquired, and is therefore the successor-in-interest to, E.On U.S. LLC, and E.On U.S.
Services Inc.” The Defendants argue that this is not enough. See Stark-Tusc-Wayne Joint Solid
Waste Mgmt. Dist. v. Am. Landfill, Inc., 2012 WL 4475444, at *5 (N.D. Ohio Sept. 26, 2012)
(holding that “claiming that ‘other WMI subsidiaries’ are also responsible for alleged violations
without providing any description of unlawful conduct attributable to that entity is insufficient”).
The Plaintiffs respond that corporate parents have been held liable under CAA or RCRA
where they were “decision-makers” or “directly responsible” for the activities at issue. See, e.g.,
Duquesne Light Co. v. E.P.A., 698 F.2d 456, 472-73 (D.C. Cir. 1983) (finding that the CAA

38

allows suits against “one who runs a facility as a lessee and one who supervises its operation”);
United States v. Ne. Pharm. & Chem. Co., Inc., 810 F.2d 726, 744-45 (8th Cir. 1986) (finding
that a plant supervisor could be liable under RCRA, as he was “directly responsible” for arranging

for the transportation and disposal of hazardous substances—and further finding that RCRA may
impose liability upon non-negligent off-site generators). The Plaintiffs state that their allegations
are sufficient at this stage in the litigation because the complaint alleges that: (1) PPL is LG&E’s
corporate parent; (2) PPL holds out LG&E as part of the “PPL family of companies”; and (3)
together, LG&E and PPL “operate” Cane Run. (Compl. [DN 1] ¶¶ 2, 25-26.) The Plaintiffs argue
that “[s]ubsumed in the allegation that PPL ‘operates’ Cane Run is the allegation that PPL
‘controls or supervises’ operation of the plant. No more is required.” (Pls.’ Mem. [DN 41] 40.)
The Court agrees with the Plaintiffs. When the Court views the complaint’s allegations in
the light most favorable to the Plaintiffs and construes all reasonable inferences in their favor, it
finds that the Plaintiffs have implicitly alleged that PPL controlled and/or supervised the plant—
and thus, that PPL was involved in the alleged wrongful conduct. At this stage of the litigation,
this is sufficient. LG&E and PPL’s motion is DENIED. PPL remains a defendant in this action.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that the Defendants’
Motion to Dismiss [DN 29] is GRANTED in part and DENIED in part, consistent with this
Memorandum Opinion and Order. Remaining in this action are the Plaintiffs’ state-law claims,
as well as their CAA claims related to the alleged operation of Cane Run without a valid permit.

cc:

counsel of record
July 16, 2014

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