Sierra Club v. Louisville Gas & Electric Co.

Filing 75

MEMORANDUM OPINION & ORDER by Judge David J. Hale on 8/31/2015: The cross-motions for summary judgment 41 and 48 are DENIED. Discovery shall commence. Topics of discovery shall include but are not limited to the subjects set forth above; thi s matter is REFERRED to U.S. Magistrate Judge Dave Whalin for ruling on all non-dispositive issues, including any discovery issues. The parties shall jointly contact Magistrate Judge Whalins Chambers within ten (10) days of entry of this Order to schedule a conference with the Magistrate Judge for the purpose of establishing a revised litigation plan and discovery schedule. cc:c ounsel, AH (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
SIERRA CLUB,

Plaintiff,

v.

Civil Action No. 3:14-cv-391-DJH

LOUISVILLE GAS & ELECTRIC CO.,

Defendant.
* * * * *

MEMORANDUM OPINION AND ORDER
For many years, Defendant Louisville Gas & Electric (LG&E) has discharged treated
wastewater, called “effluent,” from the ash pond at the Mill Creek Generating Station directly
into the Ohio River via a drain called “Outfall 002.” Plaintiff Sierra Club alleges that this direct
discharge occurs on a daily, almost continuous basis. In 2002, the Kentucky Division of Water
issued LG&E a permit (the “Permit”) that—according to both LG&E and the regulators—allows
this discharge.
meaning.

Sierra Club asserts, however, that the practice violates the Permit’s plain

It brought this citizen suit under the Clean Water Act alleging that the word

“occasional” on the Permit’s cover page, coupled with the Permit’s description of Outfall 002 as
an “internal” outfall, prohibits LG&E’s current practices. Moreover, it believes that the nearly
continuous direct discharge from Outfall 002 has resulted in dangerously high concentrations of
mercury and other pollutants in the waters downstream from Mill Creek. Both parties seek
summary judgment; the Kentucky Energy and Environment Cabinet has submitted an amicus
brief supporting LG&E.

After hearing from the parties in oral argument and carefully

considering their positions, the Court concludes that summary judgment is inappropriate at this
time. It will therefore deny the cross-motions for summary judgment and order discovery to
proceed.

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I.

FACTUAL BACKGROUND

Mill Creek is LG&E’s largest coal-fired power plant. It sits adjacent to the Ohio River in
southwest Jefferson County. Water plays an important role in Mill Creek’s operation, with four
boilers burning coal to convert water into steam that spins turbines. Those turbines drive the
generators that produce electricity. The four coal-fired boilers also use water from the river to
cool and condense the steam that passes through the turbines back to a liquid state, and the
cooling water is then discharged back into the river. River water also transports coal ash and
other “combustion residuals” from the boilers to the ash pond.
Once the combustion residuals settle, the resulting effluent is discharged back into the
river along with any storm water and wastewater that has entered the ash pond. The effluent is
first sent over a concrete dam into a concrete reservoir called a “sump.” The sump drains into
two pipes: One conveys the effluent to a second pipe to combine it with cooling water before
discharge into the river via Outfall 001, and the other conveys the effluent to an open, lined
trench on the river bank that directly discharges into the river—Outfall 002. All of the effluent
from Outfall 002 is eventually discharged into the Ohio River. Some of the Outfall 002 effluent
reaches the river directly, while the rest flows first through the pipeline and into Outfall 001
before discharge.
The Clean Water Act1 regulates LG&E’s practices at Mill Creek. The CWA prohibits the
discharge of any pollutant2 into U.S. waters without authorization from a National Pollution
Discharge Elimination System (NPDES) permit. 33 U.S.C. § 1342. Courts have interpreted the
CWA as a strict liability regime in the absence of NPDES permits. The CWA requires that

1

33 U.S.C. § 1251 et seq.
This can include “solid waste,” “chemical wastes,” and “industrial . . . waste discharged
into water.” 33 U.S.C. § 1362(6).
2

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pollutant dischargers monitor and publicly report the amount of pollutants discharged. Id. at
(a)(2). NPDES permits are set for fixed terms that may not exceed five years. 33 U.S.C.
1342(b)(1)(B). The U.S. Environmental Protection Agency has delegated to the states the
authority to issue and enforce NPDES permits.

See 48 Fed. Reg. 45,597 (Oct. 6, 1983)

(approving Kentucky’s NPDES permitting program). In Kentucky, the Energy and Environment
Cabinet (Cabinet) is the principal government entity that issues and enforces permits under the
Kentucky Pollutant Discharge Elimination System. See id. It does so through subordinate
agencies, the Kentucky Department of Environmental Protection (Department) and the Division
of Water (Division), an arm of the Department, which issues NPDES permits to entities wishing
to discharge pollutants from any point source into Kentucky’s waters.
The Division first issued a NPDES permit to LG&E for its Mill Creek operations in 1975.
That permit was subsequently renewed six times. The version at issue here, KDPES Permit
KY0003221, became effective in November 2002. Though it expired in 2007—and though
LG&E applied for a renewal that same year—the Division has put off reconsidering its terms,
and, as a result of administrative extensions, the Permit still governs operations at Mill Creek.
According to the Permit’s cover page, Parts I through V set forth all “effluent limitations,
monitoring requirements, and other conditions.” These sections impose water quality standards
on all ash pond effluent, but the parties dispute whether they impose any limits on the effluent
flow rate from the ash pond to the river, either indirectly through Outfall 001 or directly from
Outfall 002. There is required effluent sampling to test for compliance with the Permit limits at
Outfall 002 for all directly discharged wastewater. Thus, the monitoring results reported to the
Division reflect the quality of the ash pond effluent before discharge to Outfall 001 and before
direct discharge into the river from Outfall 002. LG&E claims that regardless of how often the

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effluent is directly discharged into the river, the total flow of effluent entering the river from the
ash pond is the same.
LG&E argues—and the Cabinet agrees—that Parts I through V of the Permit do not
constrain the frequency of direct discharge from Outfall 002.

Rather, they argue that the

Permit’s terms allow continuous direct discharge from Outfall 002. They note that Outfall 002 is
subject to monthly average and daily discharge limitations and monitoring, even when it directly
discharges into the river. As they explain, the relevant regulations—40 C.F.R. § 122.45(d)—
require that “continuous” discharges be stated in terms of maximum daily and monthly average
limits. This is contrary to non-continuous discharges, which must be “particularly described and
limited” when it comes to frequency, total mass, and maximum rate. Id. § 122.45(e). The
Permit contains no particularly described limitations for Outfall 002’s direct discharges into the
Ohio River. Likewise, the Permit contains no monitoring or reporting compliance requirements,
which would be required if there were any frequency limitations on the direct discharges from
Outfall 002. See 40 C.F.R. § 122.44(i)(1).
Meanwhile, Sierra Club focuses on the phrase “occasional direct discharge,” which
appears on the cover page in reference to Outfall 002. Although the phrase appears only once in
the Permit, Sierra Club argues that the plain meaning of the expression is clear and
unambiguously bars the near-continuous direct discharge currently flowing from Outfall 002. In
full, the Permit’s cover page’s description of Outfall 002 is that it is authorized to discharge “to
Outfall 001 with an occasional direct discharge to the Ohio River.” Moreover, it points to page
I-2 of the permit, which characterizes Outfall 002 as “an internal outfall that discharges to
Outfall 001.” That page also lists six effluent limitations that Outfall 002 must adhere to at all
times, and a seventh limitation on wastewater acidity/alkalinity (pH) that applies “only when

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[Outfall 002’s wastewater] is direct discharged to the Ohio River.” Sierra Club also notes that
before the Permit was issued in 2002, the Department characterized Outfall 002 as “an internal
outfall that discharges to Outfall 001 . . . with an occasional direct discharge to the Ohio River.”
And when applying for the Permit, LG&E used similar language to describe the utilization of
Outfall 002: “On occasion the ash pond water is diverted directly to the Ohio River . . . to
maintain proper water level in the pond.” (D.N. 48-1, PageID # 1501 emphasis added).
Sierra Club fears that the continuous direct discharge from Outfall 002 could pose serious
human health concerns, as wastewater from Mill Creek’s coal ash impoundment contains several
toxic pollutants. These toxins include arsenic, mercury, lead, and cadmium. In sufficient
concentrations, these toxins can have neurological and carcinogenic impacts on individuals
exposed to them. As well, they are associated with a wide range of environmental harms,
including the destruction of fish populations and the general reduced population growth and
diminished survival rates of other aquatic organisms.
Samplings taken in 2001 and 20073 both show significant concentrations of mercury at
Outfall 002.

(D.N. 48-1, PageID # 1501)

In 2001, LG&E’s samplings detected mercury

concentrations at Outfall 002 to be 0.30 micrograms/L. (Id. at PageID # 1501-02)

In 2007,

mercury was found at 1.1 micrograms/L at Outfall 002. Id. Both could be dangerously high:
Kentucky regulations establish 0.051 micrograms/L as the maximum safe concentration of
mercury for fish consumption. 401 KY. ADMIN. REGS. § 10:031, Table 1. Meanwhile, Outfall
001’s mercury concentrations were well below detection limits. Sierra Club suggests that this is
likely due to the dilution that occurs when the coal ash impoundment wastewater is combined
with other flow sources—like Outfall 001’s cooling water—that have not previously been

3

These appear to be the most recent samplings available in the Court’s record.
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exposed to coal ash. (D.N. 48-1, PageID # 1502) The Department has already determined that
the mercury present downstream from Mill Creek is potentially too high for safe human
consumption of fish caught there.
Because of its concerns and the concerns of its members, in March 2014 Sierra Club sent
notice —as is required under the Clean Water Act—to LG&E and the Department of its intent to
pursue a CWA “citizen suit.” The CWA provides for civil actions against any defendant
allegedly in violation of an effluent standard or limitation. 33 U.S.C. § 1365(a)(1). Any
pollutant discharge not authorized by an NPDES permit is in violation. Id. §§ 1311(a), 1342,
1365(f)(6). In its notice, Sierra Club alleged that the daily direct discharge from Outfall 002
violated the Permit because it necessarily exceeded the standard of “occasional direct discharge”
found on the cover page.
Within days of the notice, the Department’s commissioner rejected Sierra Club’s
interpretation.

He explained that the Permit allows for discharge from Outfall 002 either

internally into Outfall 001 or directly into the river. He also disputed that the word “occasional”
on the cover page had any limiting powers. In May 2014, Sierra Club filed suit. By agreement
of the parties, discovery is stayed pending resolution of the cross-motions for summary
judgment. The Court heard oral argument on the motions in July 2015.
II.

STANDARD

To grant a motion for summary judgment, the Court must find that there is no genuine
dispute as to any material fact and that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. Pr. 56(a). The moving party bears the initial burden of identifying the basis
for its motion and the parts of the record that demonstrate an absence of any genuine issue of
material fact.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

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The Court must

determine whether “the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.” Patton v.
Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986)). The Court concludes that genuine issues of material fact do exist in this
case.
III.

DISCUSSION

To interpret the Permit, the Court will use the same principles of interpretation that apply
to contracts and other legal documents. See, e.g., Natural Res. Def. Council, Inc. v. Cty. of Los
Angeles, 725 F.3d 1194, 1204-05 (9th Cir. 2013). As with any contract, the Court must first
interpret the Permit according to its plain meaning, and the Court will consider extrinsic
evidence only if the Permit’s terms are ambiguous. See id. Unsurprisingly, each side believes
that the Permit’s plain meaning supports their position.
LG&E’s position is that the word “occasional” on the cover page is, by the Permit’s plain
meaning, a mere “descriptive term” and not an enforceable condition of the Permit. LG&E
marshals several arguments to support this reading. For one, the word appears only once—on
the cover page. The cover page indicates that the Permit’s operating conditions are found in
other portions of the Permit. (D.N. 41-4, PageID # 260) LG&E also points to discharge
limitations and monitoring requirements. The Permit subjects Outfall 002 to monthly average
and daily discharge limitations and monitoring.

Regulations require these standards for

continuous discharges. See 40 C.F.R. § 122.45(d). Had “occasional” been meant as an actual
condition, posits LG&E, the federal regulations would have required the Division to “particularly
describe[] and limit” the direct discharge from Outfall 002. See id. § 122.45(e)(1).

Finally,

LG&E references the Permit’s quality-based limits for toxicity. The Permit’s toxicity limits are

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written without regard to whether the effluent from Outfall 002 is first comingled with cooling
water in Outfall 001. That is, the toxicity limitations are unaffected by whether the direct
discharge is continuous or less frequent. LG&E deems this proof that that the Division never
intended “occasional” to carry weight. For each of these reasons, LG&E asserts that the Permit’s
plain meaning supports its current practices at Mill Creek.
Meanwhile, Sierra Club argues that the only way to give effect to all of the terms of the
Permit is to interpret it as precluding continuous direct discharge. That is, Sierra Club claims
that reading the Permit as LG&E desires would read the terms “occasional” and “internal” out of
the Permit. As to the meaning of “occasional,” Sierra Club asserts that its ordinary meaning—
“occurring from time to time” or “irregular”; “infrequent”—should be used. See The Am.
Heritage Dictionary of the English Language (5th ed. 2011). And it cites several cases from a
multitude of courts where other judges have deemed various forms of the root “occasion” to be
unambiguous.
As to “internal,” the Permit describes Outfall 002 as “an internal outfall that discharges
to Outfall 001.” (D.N. 41-4, PageID # 262) Sierra Club submits the following definition: “of,
relating to, or located within the limits or surface; inner.” See id. Reading the Permit as a whole,
and giving effect to all of its terms in their plain meanings, Sierra Club argues that the only
plausible interpretation is that the wastewater from Outfall 002 is meant to stay within Mill
Creek until it reaches Outfall 001, with only occasional direct discharges to the Ohio River.
Sierra Club also challenges LG&E’s arguments about the import of the toxicity limitations and
discharge limitation and monitoring requirements.

Sierra Club denies that the toxicity

limitations offer any probative evidence. And it notes that the regulations LG&E cites provide
that non-continuous discharges must be particularly described and enumerated factors considered

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“as appropriate.” 40 C.F.R. § 122.45(e). The lack of these particular descriptions from the
Permit, contends Sierra Club, merely demonstrates that the Permit never authorized or
contemplated this type of direct discharge, which would make the consideration of factors like
frequency, total mass, and maximum rate inappropriate.
Many courts in varied contexts have found that the plain meaning of “occasional” would
preclude the type of near-continuous discharge at Mill Creek. See, e.g., Fast v. Applebee’s Int’l,
Inc., 638 F.3d 872, 879 (8th Cir. 2011) (“‘[o]ccasionally’ is defined as ‘now and then; here and
there; sometimes’”); U.S. v. Hudspeth, 42 F.3d 1015, 1023 n.16 (7th Cir. 1994) (“[t]he plain
meaning of the term ‘occasion’ incorporates a temporal distinction, i.e., one occasion cannot be
simultaneous with another occasion”); Miller v. Comm’r of Soc. Sec., No. 1:13-CV-1872, 2014
WL 3950912, at *10 (N.D. Ohio Aug. 12, 2014) (“[b]y the terms’ plain meaning, ‘occasional’ is
less frequent in nature than ‘repetitive’”); Allstate Ins. Co. v. Sylvester, No. 07-00360, 2008 WL
2164657, at *6 (D.C. Haw. May 21, 2008) (“[t]he plain meaning of ‘occasional’ is ‘Occurring
from time to time’ or ‘Not habitual; infrequent’”); Cash v. Conn Appliances, Inc., 2 F. Supp. 2d
884, 896 n.25 (E.D. Tex. 1997) (explaining that a Department of Labor handbook’s use of
“occasional,” without definition, presumed the plain meaning of the term: “infrequent or
irregular intervals”).

Although these cases offer some guidance as to the meaning of

“occasional” in various contexts, they do not tell the Court what the word means in the context of
the Permit.
In Hendricks v. United States, the now-defunct federal Claims Court addressed the
meaning of a flowage easement that gave the United States the right “occasionally to overflow,
flood and submerge” the plaintiffs’ land with water from the Harry S. Truman Dam in the
Missouri River Basin. 10 Cl. Ct. 703 (1986). Like the Permit, the easement in Hendricks used

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“occasionally” without defining the term. Id. at 705. In deciding the motion and whether to
consider extrinsic evidence, the court determined that “the term ‘occasionally’ is inherently
ambiguous,” and it denied summary judgment. Id. 706-07. Likewise, this Court concludes that,
in the context of the Permit, the meaning of “occasional” is inherently ambiguous.

The

interpretation that LG&E puts forth may be plausible, but it still leaves the Court with little
guidance as to how the inherently ambiguous term is to be applied in the Permit. And the Court
is unable, without more, to accept Sierra Club’s position at oral argument that “occasional”
means so infrequent as to be de minimis.

Given the ambiguity, the Court concludes that

summary judgment is inappropriate at this time.
1. The Amicus Brief
When there is ambiguity in a permit, courts may look to extrinsic evidence “to determine
the intent of the permitting authority.” Natural Res. Def. Council, 725 F.3d at 1207. In the event
this Court found that “occasional” is ambiguous, LG&E has asked it to rely on the Cabinet’s
interpretation. The Cabinet submitted an amicus brief on this issue in March 2015. See D.N. 60.
The Cabinet supports LG&E’s interpretation of the Permit, based on essentially the same reasons
that LG&E argued. And LG&E asserts that the Court should give deference to the Cabinet’s
position.
Though the Court is unable to wholly resolve the issue at this time, it does have doubts as
to the weight the Cabinet’s opinion should carry. As LG&E’s counsel agreed at oral argument,
the Permit is a form of regulation. Usually, when regulators interpret their own regulations, they
receive what is called Auer deference.4 That is, courts will give deference to an agency’s
interpretations of its own regulations—even when given in a legal brief—so long as the

4

See Auer v. Robbins, 519 U.S. 452 (1997).
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interpretation is not clearly wrong or inconsistent with the regulation, reflects the agency’s fair
and considered judgment on the matter, and is more than a “convenient litigating position” or a
“post hoc rationalizatio[n] advanced by the agency seeking to defend past agency action under
attack.” Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166-67 (2012) (alteration
in original)(citations omitted)(internal quotations omitted).

If a court determines that Auer

deference is inappropriate, it can instead give the agency interpretation Skidmore deference,5
which accords “deference proportional to the ‘thoroughness evident in [the regulator’s]
consideration, the validity of its reasoning, its consistency with earlier and later pronouncements,
and all those factors which give it power to persuade.’” Id. at 2168 (quoting United States v.
Mead Corp., 533 U.S. 218, 228 (2001)).
Here, it appears to the Court that the Cabinet’s decision is a post hoc rationalization.
Indeed, the only prior pronouncement on the meaning of “occasional” came when Sierra Club
gave notice of its intent to sue, and the Cabinet responded that LG&E was adhering to the terms
of the Permit. Notably, this rapid response came from the same state government agency that
has for over seven years been unable to advance LG&E’s permit renewal request. The Court is
not inclined to give the Cabinet’s views deference, and so is unwilling to grant summary
judgment based on the Cabinet’s interpretation. More discovery is needed to flesh out the issues
surrounding this case.
2. Discovery
Discovery was stayed in this case until the cross-motions for summary judgment could be
resolved. At oral argument, the Court inquired about several subjects that, according to the
parties, the record is silent on. The Court will refer all discovery matters to United States

5

See Skidmore v. Swift & Co., 323 U.S. 134 (1944).
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Magistrate Judge Dave Whalin. As discovery proceeds, the Court specifically directs the parties
to conduct discovery relating to:


The purposes for separating Outfall 001 and Outfall 002;



The reason behind the Division’s delay in approving LG&E’s permit renewal request;



The historical direct-discharge practices from Outfall 002, any discussions that may
have occurred between LG&E and the Division about direct-discharge practices from
Outfall 002, and current discharge practices from Outfall 002;



What the Division may have intended at the time the Permit was drafted; and



Use of “occasional” in other discharge permits granted by the Cabinet, Department or
Division.

IV.

CONCLUSION

Questions linger as to LG&E’s current practices at Mill Creek. To give full effect to the
Permit as a whole, the Court’s interpretation must consider the effect of “occasional” and the
Permit’s description of Outfall 002 as “an internal outfall that discharges to Outfall 001.” But
the Court is presently unconvinced of Sierra Club’s position because Sierra Club has not
presented the Court with an actionable construction. Summary judgment is inappropriate at this
time; discovery is needed. Accordingly, it is hereby
ORDERED as follows:
1. The cross-motions for summary judgment (Docket Nos. 41 and 48) are DENIED.
2. Discovery shall commence. Topics of discovery shall include but are not limited to
the subjects set forth above.
3. Pursuant to 28 U.S.C. § 636(b)(1)(A), this matter is REFERRED to U.S. Magistrate
Judge Dave Whalin for ruling on all non-dispositive issues, including any discovery
issues.

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4. In lieu of submitting a proposed amended scheduling order as contemplated in the
Court’s May 20, 2015 Order (D.N. 71), the parties shall jointly contact Magistrate
Judge Whalin’s Chambers within ten (10) days of entry of this Order to schedule a
conference with the Magistrate Judge for the purpose of establishing a revised
litigation plan and discovery schedule.

The revised schedule shall include a

settlement mediation conference.
August 31, 2015

David J. Hale, Judge
United States District Court

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