In Ohio Valley Envt’l Coalition v. River Cities Disposal, LLC, 82 ERC 1522, 2016 WL 1255717 (E.D. Ky Mar. 29, 2016), the U.S. District Court for the Eastern District of Kentucky barred a citizen suit seeking penalties against a landfill on the basis that Burford abstention precluded federal intervention during the Kentucky Energy and Environment Cabinet’s ongoing administrative enforcement and permitting action of the landfill.
Big Run Landfill, owned and operated by River Cities Disposal, LLC, is a permitted solid waste facility in Boyd County, Kentucky. Between May 2011 and June 2015, the Kentucky Department of Environmental Protection (KDEP) issued Big Run Landfill roughly 20 Notices of Violation (NOVs), many for violating the “detectable odor” prohibition of the Kentucky SIP. 40 Ky. Admin. Reg. 53:010. River Cities entered into an Agreed Order to resolve the first twenty of these, which required Big Run Landfill to submit and implement a Second Corrective Action Plan, assessed certain penalties, and allowed KDEP to seek additional stipulated penalties for additional violations. KDEP eventually gave notice of more than 40 additional violations and sought stipulated penalties. Big Run Landfill completed the Second Corrective Action Plan and applied for a permit renewal. KDEP sent out public notice and plaintiff Ohio Valley Environmental Coalition (OVEC) filed comments, but before the permit was issued, OVEC filed a federal citizens’ suit pursuant to Section 304 of the Clean Air Act seeking penalties for the ongoing violations of the Kentucky SIP odor provisions.
River Cities Disposal filed a motion to dismiss arguing Burford abstention. The court noted that the Sixth Circuit had held that Burford abstention is potentially applicable, rejecting OVEC’s contention that the two existing limitations in Section 304 – the requirement of 60 days-notice and a civil judicial enforcement action – were the only limitations. The court then proceeded to analyze whether the four-factor test for Burford abstention was met:
“(1) the availability of timely and adequate state-court review, (2) a request for equitable relief, (3) the existence of a complex state regulatory regime, and (4) either “difficult questions of state law bearing on policy problems of substantial public import” or the potential for disruption of “state efforts to establish a coherent policy with respect to a matter of substantial public concern.”
The court noted that Kentucky law provides for review of KDEP’s actions in state court, that OVEC was requesting injunctive (equitable) relief, and that it was undisputed that the SIP was a “complex state regulatory regime.” Accordingly, the court focused on the last question: whether there were difficult questions of state law or potential disruption of state efforts to establish a coherent policy. On this issue, the court held that the Sixth Circuit had previously held that “federal review would be particularly disruptive” where “the plaintiffs' “claims boil[ed] down to allegations that the Kentucky agency ‘failed to apply or misapplied its lawful authority under Kentucky law and under’ ” the CAA in making permit decisions, which “would require the district court to revisit earlier decisions made by” the DAQ.” Accordingly, the Eastern District of Kentucky held that it must abstain.
OVEC is an interesting case. On the one hand, the decision to abstain and let the state administrative process run seems fully consistent with cooperative federalism. On the other hand, the decision continues the erosion of federal citizen suit rights and the ability to enforce SIPs where there is disagreement between states and citizens. OVEC continues a trend to grant more deference to agencies management of the enforcement process free of judicial intervention. While not strictly an NSR case, OVEC may have implications in future NSR proceedings.