Kyle A. Ruschell
A recent suit submitted for appeal to the Sixth Circuit could provide important interpretive clarity into the scope of the Clean Water Act (CWA) as it relates to groundwater pollution. In July of 2017, EarthJustice, supported by the Sierra Club and the Kentucky Waterways Alliance, filed a citizens’ suit against Kentucky Utilities for alleged violation of both the CWA and the Resource Conservation and Recovery Act (RCRA).[i] The suit alleged that Kentucky Utilities violated these statutes due to improper handling, storage treatment, and transportation of coal ash generated from the E.W. Brown Generating Station at Herrington Lake, near Harrodsburg, Kentucky.[ii] The plaintiffs believe that these violations could pose “an imminent and substantial endangerment to aquatic life, other wildlife and the people who make use” of the lake.[iii] The plant has 6 million cubic yards of coal ash buried nearby, and the groundwater that comes into contact with the buried ash flows into the lake.[iv]
Dr. Dennis Lemly, an expert witness for plaintiffs, performed a toxicology study of the lake and found the level of selenium to be beyond the high-hazard thresholds for adverse biological effects in wildlife.[v] Fish in Herrington Lake were found to have a very high incidence of deformities–more than every one in ten fish sampled–and these defects were nearly always spinal and cranial in nature.[vi]
Kentucky Utilities is highly critical of these findings, and believes that it is in compliance.[vii] Further, it says that Dr. Lemly’s findings are inconsistent with other studies of the lake.[viii] For example, Kentucky Utilities claims that the Department of Fish and Wildlife performed an analysis of the lake and found no deformities.[ix] In response, plaintiffs point to the findings of the Division of Water, which found excessively high selenium in nine out of ten collected samples.[x]
In January of 2018, the suit was dismissed, which came as no surprise to local residents.[xi] The case was dismissed because Kentucky Utilities had already agreed to submit to a remedial action plan, and two corrective action plans to remedy the pollution.[xii] Since these remedial and corrective actions are pending, Judge Reeves of the Eastern District of Kentucky said that the plaintiffs could not bring an illegal discharge action. [xiii] Further, because the pollutants enter the lake via groundwater, Judge Reeves stated that this removes the pollution from the purview of the CWA.
The Sierra Club and the Kentucky Waterways Alliance have filed an appeal.[xiv] If the appeal is taken, the scope of the CWA as it relates to groundwater could be clarified. The CWA prohibits discharge of pollutants into “waters of the United States” unless the discharger has a valid permit to do so.[xv] Across both Districts and Circuits, courts are presently divided on whether groundwater constitutes such discharge.[xvi] Some courts consider groundwater which carries pollution into surface waters of the United States to be within the scope of the CWA, while others believe the opposite.[xvii] In fact, the First, Fifth, and Seventh Courts of Appeals have found that the CWA is not implicated in such circumstances.[xviii] An appeal to the Sixth Circuit would provide valuable clarity into this issue.
[i] Greg Kocher, Environmental Groups Sue KU, Claiming Plant’s Discharge Polluting Herrington Lake, Lexington Herald-Leader (July 13, 2017, 5:16 PM), http://www.kentucky.com/news/state/article161151513.html.
[ii] Id.; Herrington Lake, Ky. Dep’t of Tourism, https://www.kentuckytourism.com/herrington-lake/ (last visited Feb. 26, 2018).
[iii] Kocher, supra note i.
[v] Erica Peterson, Expert Says Herrington Lake Pollution is Worse Than We Thought, WFPL (Nov. 17, 2017), http://wfpl.org/new-documents-suggest-pollution-in-herrington-lake-more-severe-than-previously-thought/.
[vii] Bobbie Curd, Lawsuit Over Coal Ash Pond Near Herrington Lake Dismissed, Advocate-Messenger (Jan. 5, 2018), https://www.amnews.com/2018/01/05/lawsuit-over-coal-ash-pond-near-herrington-lake-dismissed/.
[xii] Kocher, supra note i.
[xiv] Curd, supra note vii.
[xv] 33 U.S.C. §§ 1311(a), 1342, 1362(12)(A), 1362(7).
[xvi] Compare Hawai’i Wildlife Fund v. Cty. of Maui, 24 F. Supp. 3d 980, 986 (D. Haw. 2014) (stating that it would not make sense for the CWA to cover discharge via a pipe from the factory leading to a water body, but not cover a polluter who dumps waste into a manmade basin which then seeps into the river via groundwater), with Tri-Realty Co. v. Ursinus Coll., 124 F. Supp. 3d 418, 433 (E.D. Pa. 2015) (stating that discharge of pollution solely via groundwater constitutes nonpoint source pollution, which is beyond the scope of the CWA).
[xviii] See Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994); Rice v. Harken Expl. Co., 250 F.3d 264, 269 (5th Cir. 2001); United States v. Johnson, 437 F.3d 157, 161 (1st Cir. 2006) (“The CWA does not cover any type of ground water; the CWA covers only surface water”).