## Facts

- Kentucky Utilities Company (KU) operated the E.W. Brown coal-fired power plant near Herrington Lake in Kentucky.
- KU stored coal combustion residuals (coal ash) in two unlined, man-made ash ponds located on karst terrain that can allow subsurface movement through cavities and channels.
- Environmental organizations alleged pollutants leached from the ash ponds into groundwater and then entered Herrington Lake, a protected surface water.
- Plaintiffs brought citizen-suit claims under the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA).
- The district court dismissed the CWA claims on the ground that the CWA does not regulate pollution reaching surface waters via groundwater, and also dismissed the RCRA claims.
- Plaintiffs appealed.

## Issues

1. Whether the CWA imposes liability where pollutants originate from a point source but reach navigable waters only after traveling through groundwater, including whether groundwater can be a “point source.”
2. Whether the plaintiffs stated a viable RCRA citizen-suit claim alleging that KU’s coal-ash handling and disposal may present an imminent and substantial endangerment to health or the environment.

## Decision

- The Sixth Circuit affirmed dismissal of the CWA claims.
- The court held groundwater is not a CWA “point source” because it is not a “discernible, confined and discrete conveyance.”
- The court rejected liability under a “conduit” theory that treats groundwater as the medium carrying pollutants from a point source to navigable waters.
- The Sixth Circuit reversed in part the dismissal of the RCRA claims, holding the allegations satisfied RCRA’s threshold for an imminent-and-substantial-endangerment citizen suit.
- The case was remanded for further proceedings on the surviving RCRA claims.

## Legal Principles

- CWA liability requires an “addition” of a pollutant “to navigable waters” “from any point source”; groundwater, as generally diffuse flow, is a nonpoint source and not itself a “point source.”
- Discharges to groundwater that later reach navigable waters are not, without more, discharges “into” navigable waters within the meaning applied by the court.
- The CWA preserves significant state authority over groundwater pollution; courts should not treat the CWA as a general groundwater-pollution statute absent clearer congressional direction.
- RCRA authorizes citizen suits against persons contributing to the handling, storage, or disposal of solid waste that may present an imminent and substantial endangerment to health or the environment.
- Coal ash may qualify as “solid waste,” and allegations of disposal practices causing or threatening contamination can be sufficient to proceed under RCRA at the pleading stage.

## Conclusion

The Sixth Circuit limited CWA coverage by excluding pollution that reaches surface waters via groundwater, while allowing plaintiffs to proceed under RCRA based on allegations that coal-ash disposal in unlined ponds may pose an imminent and substantial endangerment, remanding for further litigation on the RCRA claims.


Kentucky Waterways All. v. Ky. Utils. Co., 905 F.3d 925 (6th Cir. 2018)