Kentucky Residents Allowed to Proceed in Toxic Emissions Dust Class Action Posted on December 1, 2015 by Larry Bodine The Sixth Circuit Court of Appeals has affirmed a district court’s ruling to allow Kentucky residents to proceed in a class action lawsuit against a Louisville Gas and electric company for the homeowner’s claims of nuisance, trespass, and negligence for toxic dust and ash released from a power plant. The homeowners alleged that beginning in 2008, a film of dust and coal has had been emitted from coal burning emission stacks onto their properties by the Cane Run Power Plant owned by the Louisville Gas & Electric Company (LGE). They also alleged that ash, dust and coal combustion by-products containing arsenic, silica, lead, and chromium from an insufficiently covered landfill blew onto their properties, causing lung and skin irrigation. Clean Air Act and state claims The homeowners filed a lawsuit, alleging violations of the Clean Air Act and the Resource Conservation and Recovery Act in addition to state law claims of nuisance, trespass and negligence. LGE sought to have the homeowner’s case dismissed arguing that the federal Clean Air Act preempted the state claims. See also: Oklahoma Homeowners Can Sue For Fracking Earthquake Injuries The district court dismissed the homeowner’s federal claims for lack of standing and failing to provide requisite notice for their Clean Air Act claims, but ruled that they were allowed to proceed on their state common law claims of nuisance, trespass and negligence, which were not preempted by federal law. The Louisville Gas & Electric company appealed the decision to the court of appeals, contesting the district court’s denial of their motion to dismiss the state claims on preemption grounds. The homeowners also contested the district court’s dismissal of their federal law claims. Appeals court affirms lower court ruling Relying on a previously decided case, Merrick v. Diageo Americas Supply, the court concluded that the Clean Air Act does not preempt state law claims because “states retain the right to ‘adopt or enforce’ common law standards that apply to emissions.” In the Merrick case, landowners brought a lawsuit against a Kentucky whiskey distiller for ethanol emissions. The court found that the state claims brought against LGE by the homeowners were not “materially distinguishable from state common law claims raised in Merrick” and that the “Clean Air Act does not preempt plaintiffs’ state common law claims.” The court refused to consider the homeowner’s challenge to the district court’s dismissal of their federal claims, citing that the district court only allowed an appeal of issues related to the portion of the order that “denied Defendant’s motion to dismiss Plaintiffs’ state common law claims on preemption grounds under the Clean Air Act.” The court also noted that the homeowners never filed a cross-petition to appeal the district court’s order dismissing their federal law claims. The homeowner’s attorney stated that the homeowners were pleased with the ruling that recognized the “continual rains of ash and dust from the Cane Run plant” provide homeowners with “claims they can bring before the court.” The case is Kathy Little et al v. Louisville Gas & Electric Company, case number 14-6499 in the U.S. Court of Appeals for the 6th Circuit.
