A three-judge panel at the U.S. Sixth Circuit Court of Appeals on Nov. 2 kept alive a case where residents around Louisville Gas & Electric‘s Cane Run coal plant are complaining about coal dust and other materials from this site.
Louisville Gas & Electric brought this appeal, challenging a district court’s order refusing to dismiss state law nuisance, trespass, and negligence claims that it argued were preempted by the federal Clean Air Act. The plaintiffs challenged the district court’s adverse interlocutory orders regarding distinct federal law claims, without having cross-petitioned for interlocutory appeal with respect to those orders.
Said the appeals court opinion: “We lack jurisdiction to review those distinct interlocutory orders, even though they were handed down in the same document as the order properly appealed from.”
The plaintiffs allege that beginning in 2008, they and their neighbors began noticing a persistent film of dust that coated their homes and properties. 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. The plaintiffs state that the dust and coal ash have been emitted from: Cane Run’s emission stacks, through which solid particulates are released during the coal burning process; and Cane Run’s sludge plant, where the ash is mixed with a cementing agent. Further, the plaintiffs stated that ash, dust, and other coal combustion byproducts blow onto their properties because they are placed in an insufficiently-covered landfill. The plaintiffs allege that the ash, dust, and coal combustion by-products are not only annoying, but also that they are composed of dangerous elements, including arsenic, silica, lead, and chromium.
In a “Memorandum and Order” issued in July 2014, the U.S. District Court for the Western District of Kentucky dismissed all of plaintiffs’ federal law claims except the claim that defendants were operating Cane Run without a valid Clean Air Act permit. In the same “Memorandum and Order,” the district court rejected the utility’s argument that the Clean Air Act preempted plaintiffs’ state common law claims. Note that both Louisville Gas & Electric and parent PPL Corp. (NYSE: PPL) are defendants in this case.
Said the Nov. 2 court order: “The district court’s order denying defendants’ motion to dismiss plaintiffs’ state common law claims is affirmed. We lack jurisdiction to consider the other, unrelated orders challenged by the plaintiffs in their brief on this interlocutory appeal.”
Notable is that the coal-fired capacity at the Cane Run power plant was shut as of June 19, which is the point where the new gas-fired unit at the site went into operation. The 640-MW natural gas combined cycle Cane Run Unit 7 replaces the bulk of the 800 MW of coal-fired generation that LG&E and sister company Kentucky Utilities announced in 2011 they would retire as the result of stricter U.S. Environmental Protection Agency mandates. Cane Run Unit 6 was retired at the end of March, and Units 4 and 5 were retired shortly after Cane Run Unit 7 went into operation. The future plans include capping and closing the facility’s special waste landfill and ash pond, which should be completed in 2016. Units 1, 2 and 3 were retired years ago.