Case: 1:21-cv-00792-MRB Doc #: 1 Filed: 12/21/21 Page: 1 of 46 PAGEID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF OHIO
`WESTERN DIVISION
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`
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`Neighbors Opposing Pit Expansion, Inc.
`3151 Pond Run Rd.
`New Richmond, Ohio 45157
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`
`PLAINTIFF
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`v.
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`
`New Richmond Development Corp., LLC
`2275 Cassens Drive, Suite 118
`Fenton, MO 63026
`Statutory Agent:
`Joseph E. Budde, Esq.
`259 West Schrock Rd.
`Westerville, Ohio 43081
`
`
`and
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`Commercial Liability Partners, LLC
`2275 Cassens Drive, Suite 118
`Fenton, MO 63026
`Statutory Agent:
`Registered Agents Inc.
`7901 4th St. N., Suite 300
`St. Petersburg, FL 33702
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`DEFENDANTS
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`CASE NO. 1:21-cv-00792
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`Judge _______________
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`AND FOR CIVIL PENALTIES WITH DEMAND FOR JURY TRIAL
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`
`INTRODUCTION
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`1.
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`This action concerns ongoing, dangerous disposal of toxic waste that threatens
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`human health and the environment in an Ohio River community. Plaintiff Neighbors Opposing Pit
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`Expansion, Inc. (“NOPE”), an Ohio non-profit comprised of over 100 Clermont County, Ohio
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`residents dedicated to protection of their homes, health, and environment from toxic waste, brings
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`this civil suit under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901, et seq.
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`(“RCRA”), and specifically under Section 7002 of RCRA, 42 U.S.C. § 6972, as amended, against
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`New Richmond Development Corporation, LLC (“NRD”) and Commercial Liability Partners,
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`LLC (“CLP”) (collectively, “CLP Defendants”) for CLP Defendants’ ongoing violations of
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`RCRA Section 4005 (42 U.S.C. § 6945) (the “Open Dumping” provision). The violations arise
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`from CLP Defendants’ handling, management, and disposal of “coal combustion residuals” (also
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`known as “CCR” or, colloquially, “coal ash”) at the site of the former Beckjord power station and
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`on related properties in Clermont County, Ohio (the “Beckjord Property” or “facility”), which
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`CLP and NRD acquired from Duke Energy in 2018.
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`2.
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`The former Beckjord power station operated for six decades (1952–2014) as a
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`coal-fired power plant and over that time generated over six million cubic yards of coal ash that
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`continue to be disposed of in unlined pits (also known as “ponds” or “impoundments”), unlined
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`piles, and landfills at the Beckjord Property. The Beckjord coal ash pond disposal areas are
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`adjacent to and in the floodplain of the Ohio River (a drinking water source for over five million
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`people) and are directly upgradient of Clermont County public drinking water wells that are the
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`drinking water source for 130,000 people.
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`3.
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`Since acquiring the Beckjord Property from Duke Energy in February 2018, CLP
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`Defendants have engaged in and continue to engage in unlawful ongoing disposal of coal ash at
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`the facility, and have also engaged and are continuing to engage in unlawful new acts of disposal
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`and disposal practices at the facility. These activities violate RCRA’s Open Dumping prohibition
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`and federal regulations designed to protect human health and the environment from any
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`reasonable probability of adverse effects from waste disposal.
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`4.
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`CLP Defendants’ Open Dumping violations are ongoing and are likely to continue
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`into the foreseeable future. CLP Defendants’ past and continuing Open Dumping has
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`contaminated groundwater in the vicinity of the Beckjord Property and drinking water sources;
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`threatens to harm surface water, the environment, and nearby residential properties, including
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`NOPE members’ properties; has impacted and harmed, and will continue to impact and harm, air
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`quality, wildlife, and human health through multiple pathways for contaminant migration; and has
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`harmed, and will continue to harm, Plaintiff NOPE and its members. Plaintiff NOPE seeks
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`declaratory relief, injunctive relief, civil penalties, and other relief to correct the unlawful and
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`ongoing Open Dumping by CLP Defendants.
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`5.
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`The CLP Defendants have acted and will continue to act to release wastes,
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`including coal ash, in violation of statutory and regulatory standards and to otherwise conduct
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`such waste disposal operations and practices in a manner that constitutes a common-law nuisance.
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`Such nuisance-causing conditions threaten, unreasonably interfere with, and otherwise harm
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`rights common to the public, including resulting in special injury to NOPE and its members.
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`NOPE seeks an order requiring the abatement of said nuisance and an award to NOPE of
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`damages, including investigative costs, that have proximately resulted from said nuisance.
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`JURISDICTION AND VENUE
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`6.
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`This Court has jurisdiction over the subject matter of this action pursuant to the
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`RCRA citizen suit provision, 42 U.S.C. § 6972(a)(1)(A), and the federal question jurisdiction
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`statute, 28 U.S.C. § 1331. RCRA authorizes citizen suits against any person, including a
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`corporation, “who is alleged to be in violation of any permit, standard, regulation, condition,
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`requirement, prohibition, or order which has become effective” pursuant to RCRA. 42 U.S.C. §
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`6972(a)(1)(A). The RCRA citizen suit provision authorizes district courts to order enforcement of
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`these requirements against violators, including imposition of civil penalties where appropriate. Id.
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`§ 6972(a). This Court may award Plaintiff NOPE declaratory relief pursuant to the Declaratory
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`Judgment Act, 28 U.S.C. §§ 2201–02.
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`7.
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`The Court possesses subject matter jurisdiction over the state law claims pursuant
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`to 28 U.S.C. § 1332 because there is complete diversity of citizenship and the amount in
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`controversy is in excess of $75,000, exclusive of interest and costs. NOPE is an Ohio non-profit
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`corporation, and therefore an Ohio citizen. CLP is a Puerto Rican citizen because its two members
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`are limited liability companies whose members are domiciled in Puerto Rico. NRD is a wholly
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`owned subsidiary of CLP and is also a Puerto Rican citizen. The Court also possesses
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`supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367 because the
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`transactions and occurrences giving rise to the federal and state law claims arise from a common
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`nucleus of operative fact, such that the state law claims are so related to claims in the action
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`within original jurisdiction that they form part of the same case or controversy under Article III of
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`the United States Constitution.
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`8.
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`The Court has personal jurisdiction over CLP Defendants. NRD owns property and
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`has assets in in the State of Ohio, in particular in Clermont County. CLP has regularly transacted
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`business in, owns property in, and derives a benefit from the State of Ohio, including from
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`Clermont County, Ohio. In addition, upon information and belief, CLP has exercised and
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`continues to exercise total control over NRD. Further, CLP Defendants’ acts, violations, and
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`omissions that are the subject of this Complaint have occurred in Ohio, specifically in Clermont
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`County.
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`9.
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`Venue is proper in the Southern District of Ohio Western Division under 28 U.S.C.
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`§ 1391(b)(2), 42 U.S.C. § 6972(a), and S.D. Ohio Civ. R. 82.1. The RCRA violations alleged
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`herein have occurred in this District, specifically in Clermont County. Further, the Beckjord
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`Property that is the subject of this Complaint is located in Clermont County, a county located in
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`this District.
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`10.
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`On May 26, 2021, Plaintiff NOPE gave written notice of the violations alleged
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`herein and its intent to sue by letter (“Notice Letter”) sent via Registered Mail to CLP Defendants
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`and all other persons required to be notified pursuant to 42 U.S.C. § 6972(b) and 40 C.F.R. §§
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`254.2–254.3. Over 60 days before filing this action, CLP Defendants and all required persons and
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`entities were served the Notice Letter pursuant to 42 U.S.C. § 6972(b) and 40 C.F.R. § 254.2.
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`11.
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`The RCRA Open Dumping violations alleged herein are ongoing. CLP Defendants
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`remain in violation of RCRA as of the filing of this Complaint.
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`12.
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`Neither the United States Environmental Protection Agency (“U.S. EPA”) nor a
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`State has commenced and is diligently prosecuting a civil action in a court of the United States or
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`a State to redress the RCRA Open Dumping violations asserted in this citizen enforcement action.
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`
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`PARTIES AND STANDING
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`13.
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`Plaintiff NOPE is an Ohio non-profit corporation located in Pierce Township in
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`Clermont County, Ohio that has a principal corporate address at 3151 Pond Run Road, New
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`Richmond, Ohio 45157. NOPE has a volunteer board of directors and its membership is
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`comprised of over 100 Clermont County residents who reside and own property near the Beckjord
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`facility.
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`14.
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`NOPE was formed in 1985 when Pierce Township residents learned about plans by
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`the then-utility owner and operator of Beckjord Power Station, Cincinnati Gas & Electric Co.
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`(CG&E), to purchase real property in Pierce Township for expanded coal ash disposal operations.
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`Local residents founded NOPE to protect their land and homes, and the environment in their
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`community, from threatened air and water contamination, aesthetic harm, and diminution of use
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`and enjoyment of property and property values from the coal ash disposal operations at the
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`Beckjord facility.
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`15.
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`In 1986, NOPE, CG&E, and others entered into a settlement agreement that binds
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`CG&E and all successor owners of the Beckjord Property. Inter alia, the 1986 agreement
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`provides for the creation of a committee for the purpose of fostering better understanding and
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`communication between NOPE, Pierce Township, and the owners of the Beckjord Property. The
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`1986 agreement also provides NOPE with rights to receive ongoing information from CG&E and
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`its successors about coal ash disposal management and operations at the facility.
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`16.
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`For over 36 years, NOPE’s central mission has been to protect public health,
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`welfare, and the environment in their community, including by: (a) obtaining Beckjord coal ash
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`information in advance of plans for proposed coal ash activities; (b) communicating community
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`concerns, as part of the committee, with successor owner/operators of coal ash operations; (c)
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`obtaining answers to questions about coal ash and other disposal plans; and (d) communicating
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`information to the public to avoid misunderstandings and conflicts about plans. NOPE has
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`publicly committed to and remains dedicated to this mission and these purposes.
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`17.
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`Individual NOPE members have been and are threatened to be injured by CLP
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`Defendants’ illegal Open Dumping. Multiple NOPE members own property in close proximity to
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`the Beckjord Property, including the Pond Run coal ash disposal area, defined below, and have
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`been exposed to and are threatened by the Beckjord facility’s ongoing releases of coal ash. CLP
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`Defendants’ illegal Open Dumping harms these NOPE members’ use and enjoyment of their
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`property, and also threatens to diminish the value of that property. In fact, property interests,
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`including a greenbelt easement that NOPE has held since 1986, are threatened by coal ash
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`operations, contamination, and migration, including from disposal sites on Pond Run Road. In
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`addition, NOPE members have streams and water bodies on their properties that are threatened by
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`coal ash contamination and disposal areas.
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`18.
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`Dozens of NOPE members live, work, derive drinking water, breathe air
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`downwind from, and recreate in the immediate vicinity of and downwind/downstream of the
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`Beckjord facility. CLP Defendants’ illegal Open Dumping has caused and will continue to cause
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`the release and threatened release of contaminants into air, water (including streams in the Pond
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`Run area and the Ohio River), lands, and the environment that NOPE members use and enjoy.
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`NOPE members reasonably believe that this contamination is a threat to their health, their
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`welfare, and to their surrounding environment, and their concerns over contamination diminish
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`their aesthetic and recreational enjoyment in the areas near the Beckjord facility. NOPE’s
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`members are concerned about the active and ongoing threats to contamination of groundwater and
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`surface water, such as Pond Run, and the exposure of children, pets, and wildlife to migrating
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`contamination from areas of Open Dumping. NOPE members are also concerned about threats to
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`drinking water, the Ohio River, and property; and the possible loss of life (including their
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`members and their families and friends) from potential catastrophic structural failures, flooding,
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`and/or breaches of coal ash disposal areas. In addition, NOPE members have been harmed
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`individually by being deprived by CLP Defendants of legally-required information about coal ash
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`management and disposal at the Beckjord facility.
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`19.
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`NOPE has also been directly injured, as an organization, by CLP Defendants’
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`illegal Open Dumping and other violations of law. These violations of RCRA have deprived
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`NOPE of valuable information and access to information concerning coal ash disposal
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`management and operations at the facility, including the risks to human health and the
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`environment from CLP Defendants’ ongoing disposal of coal ash at the facility and their new
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`disposal practices and new acts of disposal. Had CLP Defendants complied with RCRA and U.S.
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`EPA regulations, CLP Defendants would have been required to compile and/or develop this
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`information and make it available to NOPE and to the public. As a result of CLP Defendants’
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`violations, and to avoid the frustration of its organizational mission and purposes, NOPE has
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`found it necessary to expend considerable resources to seek this information through public
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`records requests and other means. Separately, NOPE has also pursued litigation against CLP
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`Defendants concerning, inter alia, their violations of the 1986 agreement and the public and
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`private nuisance. See Neighbors Opposing Pit Expansion, Inc. v. New Richmond Development
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`Corp., LLC, et al., Case No. 1:20-cv-00091-MRB, also pending before the United States District
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`Court for the Southern District of Ohio.
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`20.
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`CLP Defendants’ RCRA violations also directly threaten property interests,
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`including properties over which NOPE holds greenbelt and conservation easements, and the
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`property interests of NOPE’s members.
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`21.
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`The relief NOPE seeks, including declarations of liability, injunctive relief to
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`require CLP Defendants to comply with RCRA, civil penalties to deter future violations, and
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`attorneys’ fees and costs, is likely to reduce and redress the harms to NOPE and NOPE members
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`caused by CLP Defendants’ illegal Open Dumping. The injuries to NOPE and NOPE members
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`are unlikely to be redressed in the absence of orders from this Court granting NOPE’s requested
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`relief.
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`22.
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`Defendant NRD is a Delaware limited liability company registered with the State
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`of Ohio with a principal address at 2275 Cassens Drive, Fenton, Missouri 63026. NRD was, and
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`is, a wholly owned subsidiary of CLP. NRD’s sole member is CLP. NRD is the record owner of
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`the Beckjord Property. NRD was solely created to hold title to the Beckjord Property (including
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`the coal ash disposal properties). Upon information and belief, NRD’s environmental liabilities
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`significantly outstrip its assets.
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`23.
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`Defendant CLP is a Florida limited liability company with a principal address at
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`2275 Cassens Drive, Fenton, Missouri 63026. Defendant CLP has two members, which are
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`limited liability companies organized under the laws of Delaware, and each of those limited
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`liability companies has one individual member. Both of those individual members are domiciled
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`in Puerto Rico.
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`24.
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`In February 2018, Duke Energy publicly announced the transfer of the Beckjord
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`facility and coal ash disposal properties from Duke Energy Beckjord to CLP. And, in February
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`2018, CLP Defendants assumed from Duke Energy, its utility partners, and Duke Energy
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`Beckjord, LLC complete ownership, management and control of the coal ash contaminated
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`Beckjord Property,
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`including all associated environmental
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`liabilities and permitting
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`responsibilities. Since that time, Defendant NRD has been the record owner of the Beckjord
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`Property, which is comprised of approximately 1,400 acres located at 757 U.S. Highway 52, New
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`Richmond, Ohio 45157.
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`25.
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`According to publicly available information, Duke Energy paid CLP Defendants
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`approximately $105,000,000 for the transfer of the Beckjord Property and for CLP’s assumption
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`of environmental liabilities associated with the Beckjord Property. The amount paid to CLP
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`Defendants is not reasonably equivalent to the potential liabilities associated with the Beckjord
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`facility and other contaminated properties for which CLP has assumed control. Duke Energy did
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`not retain ownership of the Beckjord facility after the transfer to CLP Defendants.
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`26.
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`There is a direct chain of successorship from CG&E, to Cinergy, to Duke Energy
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`and related entities, and to CLP Defendants.
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`27.
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`In 2018, public announcements crafted and disseminated by CLP Defendants
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`represented to the public, including NOPE, that CLP Defendants were assuming the
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`environmental obligations associated with the Beckjord Property and coal ash disposal areas.
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`28.
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`Environmental permits associated with the Beckjord facility have been transferred
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`to CLP Defendants, and CLP Defendants have been generating environmental data, applying for
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`permits to install, and developing purported “closure” plans relating to the Beckjord facility.
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`Defendants are successors to Duke Energy’s environmental permits and/or obligations. CLP
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`Defendants have continued the use of the same decommissioning assets that were in use prior to
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`the February 2018 transfer.
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`29.
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`Upon information and belief, Defendant NRD is an underfunded corporate shell
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`that is totally controlled by CLP and staffed entirely by CLP employees, and CLP Defendants
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`designed this corporate structure to attempt to shield assets and corporate practices from public
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`scrutiny. CLP has disregarded the corporate form of its subsidiaries, including NRD, so that those
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`companies have no mind or will of their own. CLP has used its control over NRD and the
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`Beckjord facility to perpetrate and otherwise not prevent or abate the environmental violations
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`and torts described in this Complaint. Therefore, the corporate form should be disregarded and
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`liability also assessed against CLP for the environmental violations described herein. The
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`environmental violations and torts resulting from CLP’s control over NRD have directly and
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`proximately caused the injuries to NOPE and to its members. All officers and employees of NRD
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`are also officers and employees of CLP.
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`30.
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`During time periods relevant to this Complaint, CLP has made and continues to
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`make environmental, remediation, and disposal decisions relating to the Beckjord Property; had
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`and exercised and continues to have and exercise authority to make environmental and disposal
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`decisions on behalf of NRD; and made and continues to make business decisions for NRD,
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`including business decisions relating to the Beckjord Property.
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`31.
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`During time periods relevant to this Complaint, CLP has had and exercised the
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`authority to authorize expenditures for environmental matters, disposal operations, and
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`remediation, or lack thereof, on the Beckjord Property and has made decisions relating to hiring
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`and approving environmental consultants and contractors to perform environmental services and
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`disposal activities on the Beckjord Property. This authority is ongoing.
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`32.
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`CLP is a company that consists of but a few employees and that, using layers of
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`corporate shells, has assumed and succeeded to hundreds of millions of dollars of environmental
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`liabilities for the Beckjord facility and at least a dozen other properties, including at least four
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`other decommissioned power plants with coal ash ponds in Ohio. Further, upon information and
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`belief, CLP Defendants are not committed to eliminating the risk of adverse effects to the health
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`of local residents and the local environment posed by the coal ash, nor could they afford to do so
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`with the amount they were paid to accept liability for the Beckjord Property. These circumstances
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`regarding CLP’s corporate and liability structure directly threaten NOPE’s organizational and
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`property interests.
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`STATUTORY AND REGULATORY BACKGROUND
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`33.
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`RCRA is the principal federal statute governing the handling, storage, treatment,
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`transportation, and disposal of solid and hazardous waste. In enacting RCRA, Congress
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`established that the national policy of the United States is that wastes “generated should be
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`treated, stored, or disposed of so as to minimize the present and future threat to human health and
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`the environment.” 42 U.S.C. § 6902(b).
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`34.
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`Congress also recognized that “disposal of solid waste and hazardous waste in or
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`on the land without careful planning and management can present a danger to human health and
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`the environment,” and that “open dumping is particularly harmful to health, contaminates
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`drinking water from underground and surface supplies, and pollutes the air and the land.” 42
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`U.S.C. § 6901(b).
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`35.
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`One fundamental way that RCRA addresses these threats to human health and the
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`environment is that Section 4005(a) provides that “any solid waste management practice or
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`disposal of solid waste or hazardous waste which constitutes the open dumping of solid waste or
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`hazardous waste is prohibited.” 42 U.S.C. § 6945(a). This prohibition “shall be enforceable
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`under section 7002 [the RCRA citizen suit provision] against persons engaged in the act of open
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`dumping.” Id.
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`36.
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`RCRA defines “open dump” to mean “any facility or site where solid waste is
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`disposed of which is not a sanitary landfill which meets the criteria promulgated under section
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`4004 [42 U.S.C. § 6944] and which is not a facility for disposal of hazardous waste.” 42 U.S.C. §
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`6903(14). Under these criteria, a facility shall “be classified as a sanitary landfill and not an open
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`dump only if there is no reasonable probability of adverse effects on health or the environment
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`from disposal of solid waste . . . .” 42 U.S.C. § 6944(a) (emphasis added).
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`37.
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`Pursuant to these statutory requirements, U.S. EPA has established minimum
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`regulatory criteria for municipal solid waste landfills at 40 C.F.R. Part 258 and for other solid
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`waste disposal facilities and practices in 40 C.F.R. Part 257.
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`38.
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`In 2015, U.S. EPA promulgated the CCR Rule, which established more detailed
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`and comprehensive minimum regulatory criteria for CCR disposal facilities and practices in 40
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`C.F.R. Part 257, Subpart D. See 80 Fed. Reg. 21,302 (Apr. 17, 2015).
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`39.
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`The CCR Rule has been revised or modified several times since its promulgation,
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`including by court order and further U.S. EPA actions. For example, in 2018, the U.S. Court of
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`Appeals for the D.C. Circuit vacated and/or remanded several provisions of the CCR Rule. See
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`Utility Solid Waste Activities Grp. v. U.S. EPA, 901 F.3d 414 (D.C. Cir. 2018) [hereinafter
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`USWAG]. Among other holdings, the USWAG court vacated 40 C.F.R. § 257.50(e), which
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`exempted from CCR Rule regulation impoundments that were no longer actively receiving waste
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`as of the effective date of the rule (“inactive impoundments”) that were located at sites where the
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`power plant was no longer actively generating electricity (“legacy” sites). Id. at 432–34, 449. The
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`court held that U.S. EPA’s exemption of legacy impoundments from CCR regulation was
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`“unreasoned, arbitrary, and capricious” because, inter alia, “older, unlined impoundments . . . –
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`which are primarily legacy ponds – pose ‘the greatest risks to human health and the
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`environment.’” Id. at 434 (quoting 80 Fed. Reg. at 21,451).
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`40.
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`U.S. EPA regulations provide that solid waste disposal facilities (other than
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`municipal solid waste landfills) that do not satisfy all of the criteria in 40 C.F.R. Part 257 are
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`illegal Open Dumps in violation of RCRA Section 4005. 40 C.F.R. § 257.1(a)(1), (c)(10); see also
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`id. § 257.2 (“Open dump means a facility for the disposal of solid waste which does not comply
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`with [Part 257].”).
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`41.
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`U.S. EPA regulations further provide that solid waste disposal practices (other than
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`those at municipal solid waste landfills) that do not satisfy all of the criteria in 40 C.F.R. Part 257
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`constitute illegal Open Dumping in violation of RCRA Section 4005. 40 C.F.R. § 257.1(a)(2),
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`(c)(10).
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`42.
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`The CCR Rule criteria in Subpart D of 40 C.F.R. Part 257 apply to both new and
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`existing CCR landfills and surface impoundments, 40 C.F.R. § 257.50(b), including inactive
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`impoundments, id. § 257.101(a).
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`43.
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`The CCR Rule defines a “CCR surface impoundment” or “impoundment” to mean
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`“a natural topographic depression, man-made excavation, or diked area, which is designed to hold
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`an accumulation of CCR and liquids, and the unit treats, stores, or disposes of CCR.” 40 C.F.R.
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`§ 257.53.
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`44.
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`The CCR Rule criteria also apply to any CCR waste disposal practices that do not
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`meet the definition of a “beneficial use” of CCR. Id. § 257.50(b), (g); see also id. § 257.53
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`(defining “beneficial use”).
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`45.
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`The CCR Rule, 40 C.F.R. § 257.52(b), provides that certain provisions of Subpart
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`A of 40 C.F.R. Part 257, including 40 C.F.R. §§ 257.3-1 and 257.3-3, continue to apply to CCR
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`landfills and impoundments that are also subject to Subpart D of 40 C.F.R. Part 257.
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`46.
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`To the extent that a CCR disposal facility or practice is not subject to the CCR
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`Rule in Subpart D of 40 C.F.R. Part 257, that facility or practice continues to be subject to the
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`general solid waste disposal criteria in Subpart A of 40 C.F.R. Part 257.
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`FACTUAL BACKGROUND
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`Improper Coal Ash Disposal Threatens Human Health and the Environment
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`47.
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`48.
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`Coal ash is one of the largest and most toxic waste streams in the United States.
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`Coal naturally contains trace amounts of many hazardous chemicals, and these
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`chemicals are concentrated in the solid waste left behind when coal is burned to generate
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`electricity. Consequently, coal ash is a toxic brew of carcinogens, neurotoxins, and poisons —
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`including arsenic, boron, cadmium, hexavalent chromium, lead, lithium, manganese, mercury,
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`molybdenum, selenium, and thallium. When this dangerous waste is not disposed of properly, the
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`toxic chemicals are re-released to air, groundwater, surface water, and soil.
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`49.
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`Historically, many power plants have stored coal ash on site in aging, unlined
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`impoundments or landfills that are at varying degrees of risk of protracted leakage and
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`catastrophic structural failure. When coal ash comes into contact with water, its chemical
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`constituents leach or migrate from the waste into underlying soils and groundwater — particularly
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`when coal ash is wet-handled and stored in impoundments, where the great pressure (known as
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`hydraulic head) of ash and water can rapidly drive contaminated leachate into underlying soils or
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`water. Moreover, from an engineering standpoint, coal ash is a structurally unstable material that
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`is highly sensitive to liquefaction when it comes into contact with water. Both coal ash landfills
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`and impoundments are likely to cause harmful contamination if operated without effective
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`engineering controls, like impermeable liners, groundwater monitoring systems, and proper
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`construction and maintenance to ensure structural stability.
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`50. When not properly managed, coal ash can also be emitted into the air while being
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`stored, loaded, unloaded, or transported. Once in the air, coal ash is free to migrate off-site as
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`fugitive dust, potentially exposing nearby residents or workers on-site to harmful levels of
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`particulate matter, particularly at sizes 2.5 µg/m3 or smaller.
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`51.
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`The threats to humans associated with coal ash exposure include elevated
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`probabilities of cancer in the skin, liver, bladder, and lungs, as well as non-cancer risks such as
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`neurological and psychiatric effects, cardiovascular effects, damage to blood vessels, and anemia.
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`Coal ash exposure can also threaten plant and animal wildlife, including by causing elevated
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`selenium levels in migratory birds, wetland vegetative damage, fish kills, fish and amphibian
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`deformities, and plant toxicity.
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`52.
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`In
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`the absence of effective remedial measures,
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`leachate from coal ash
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`impoundments and landfills that are infiltrated by surface waters (including flood waters) or
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`groundwater can continue to contaminate underlying groundwater for decades. The risk of
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`catastrophic structural failures of impoundments will continue indefinitely until addressed.
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`Dangerous releases of fugitive dust will continue to occur whenever coal ash is not properly
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`stored, transported, loaded, or unloaded.
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`The Beckjord Facility
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`53. The Beckjord facility is located along the Ohio River in Pierce Township,
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`Clermont County, Ohio, north of New Richmond and 18 miles upstream from Cincinnati. From
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`1952 to 2014, as many as six coal-fired electric generating units operated on the site, producing as
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`a by-product over six million cubic yards of coal ash that is disposed of throughout the site,
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`including in four impoundments spanning at least 170 acres. The four impoundments, located
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`north and south of the former power station, are called Ponds A, B, C, and C Extension or Cx
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`(collectively, the “Beckjord impoundments”).
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`54. The Beckjord impoundments are immediately adjacent to the Ohio River (which is
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`a source of drinking water for over five million people) and in its floodplain and regulatory
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`floodway. Ash Ponds A, C, and Cx are 200 feet from the Ohio River and Pond B is 800 feet.
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`55. The Beckjord impoundments are directly upgradient of Clermont County public
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`drinking water wells that are the drinking water source for 130,000 people.
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`56. Ponds A, B, C, and Cx are unlined impoundments.
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`57.
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`In addition to the four impoundments, the Beckjord facility also contains multiple
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`additional coal ash disposal areas, including several unlined ash pits and ash piles, as well as the
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`Pond Run Landfill, that collectively are known as the “Pond Run disposal area.” NOPE members
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`own property and NOPE has property interests directly threatened by pathways of migration,
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`including radial flow, from the Pond Run disposal area.
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`58. The Beckjord impoundments and coal ash disposal areas associated with the Pond
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`Run disposal area were designed to hold accumulations of coal ash and liquids and have during
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`relevant times stored and disposed of such wastes. These areas are subject to the requirements of
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`the CCR rule.
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`59. Further, CLP Defendants’ coal ash waste handling practices (e.g., in the years
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`2019, 2020, and 2021), including the excavation and movement of coal ash, at the Beckjord
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`impoundments and Pond Run disposal area also trigger application of the CCR Rule.
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`60. There are