By Fiona Morgan, News Editor
While energy companies across the U.S. continue to close more coal-fired power plants every year, coal’s residual effects on people and the environment remain. Two merged Kentucky energy companies, Louisville Gas and Electric and Kentucky Utilities (LG&E KU) are currently facing lawsuits involving multiple power plants they own, including the E.W. Brown Generating Station in Harrodsburg, Kentucky.
On Feb. 8, the Asbury Collegian published an article detailing pollution issues surrounding the E.W. Brown plant near High Bridge. Environmental group Earthjustice, representing the Kentucky Waterways Alliance and Sierra Club, has filed two lawsuits involving the plant.
One suit is against KU for its ongoing pollution of Herrington Lake. The E.W. Brown site has two coal ash ponds where it dumps the chemically concentrated remains of burnt coal into water. Earthjustice attorney Thomas Cmar said, “Every day, groundwater flows through six million cubic yards of buried coal ash at the E.W. Brown power plant site, conveying toxic pollutants such as arsenic and selenium into the lake and harming fish and other aquatic life. … As long as the coal ash contamination continues to flow into the lake, this pollution will likely only get worse over time.”
The Kentucky Division of Water found that nine out of 10 fish near the site had selenium levels 98 times the amount legally allowed. Fish biologist Dennis Lemly found that a large number of small fish in the lake had birth defects like scoliosis, which he attributed to selenium poisoning. Herrington Lake is a popular spot for fishing and boating and is a source of drinking water for towns in the surrounding area.
Earthjustice filed the suit in July 2017, but Federal Judge Danny Reeves dismissed the case in December 2017. The decision was appealed in September 2018 and is scheduled for trial on Oct. 5, 2020, before the U.S. District Court in Lexington.
The court’s reasons for initially dismissing the case were that KU already agreed to a corrective action plan, the regulation of groundwater is a state matter and federal courts are split on whether the Clean Water Act applies to groundwater pollution. The appellate court ruled that residents of Herrington Lake do have a standing in federal court against KU for its pollution.
In response to the case’s dismissal, KU spokesperson Chris Whelan told the Lexington Herald Leader, “We take our commitment to the environment seriously, and we will continue to work with the state on our agreed-upon remediation plans. … KU remains confident it is in compliance with its landfill permit and the discharge limits in its water discharge permit and that it is taking the proper steps to address all applicable environmental requirements.”
KU’s corrective action plan includes conducting its own fish studies, finding possible causes of selenium in the lake other than the ash ponds and determining further action after those studies are complete. During a public comment period in 2017 about the plan, Kentucky residents opposed the plan because KU estimated those studies could take up to two years.
Cmar said that Earthjustice asked the court to order KU to eliminate contamination of Herrington Lake by stopping discharges of polluted groundwater into the lake and cleaning up contamination already in the lake. “A court order is necessary because Kentucky Utilities has refused even to acknowledge to date that there is a serious pollution problem in Herrington Lake, let alone take responsibility for cleaning up the toxic mess that it has made,” Cmar said.
Cmar noted that Earthjustice has substantial evidence of pollution in the lake and believes the group has a good chance of winning the case.
When Earthjustice requested documents relating to the contamination from Kentucky’s Energy and Environment Cabinet, the cabinet released some but withheld others without explanation. Earthjustice made eight requests for hundreds of documents over the course of nine months, at least 180 of which the cabinet withheld. The group filed a suit in August 2018, claiming the cabinet violated the Open Records Act (ORA).
In its responses to the group’s requests, the cabinet claimed it was following the statutory exceptions to the ORA. Those exceptions include preliminary drafts, notes, recommendations, correspondence with private individuals or records deemed confidential. According to Earthjustice’s complaint, local residents expressed concern that the cabinet was withholding critical information in addition to failing to safeguard water quality.
KU has closed two of the three coal-fired units and one of two ash ponds at E.W. Brown, and LG&E KU continue to do the same at their other plants. LG&E completely closed coal-fired plant Cane Run near Louisville, Kentucky, in 2015, but according to local residents, coal ash left residual effects.
Residents near Cane Run noticed coal ash dust, or fly ash, continually blow onto their properties from 2008 to 2015. Six residents filed a suit in 2013 claiming LG&E violated the Clean Air Act and the Resource Conservation and Recovery Act. The court dismissed those claims in 2015.
The residents also made state common law claims of nuisance, trespass and negligence, which the federal court ruled it had no jurisdiction over. In December 2018, four residents brought those claims to state court seeking class action certification. If it is certified, 9,800 homes would be included in the suit.
Cane Run has closed and capped its ash ponds. But like many ash ponds, the bottoms are unlined, allowing toxic chemicals like radium, arsenic, lithium and selenium to leach into groundwater that flows into water supplies. These chemicals can cause long-term health issues such as cancer, cardiovascular disease and birth defects, according to the World Health Organization.
The Environmental Integrity Project released a study on March 4 that stated, “91 percent of coal plants have unsafe levels of one or more coal ash constituents in groundwater, even after we set aside contamination that may be naturally occurring or coming from other sources.”
The study listed the 10 sites with the worst contamination in the country. LG&E’s Ghent Generating Station near Cincinnati, Ohio, is number 10, with groundwater near the site containing lithium at 154 times the amount of the safe level and radium at 31 times safe levels.
“Groundwater contamination poses a clear threat to drinking water supplies,” the study stated. But courts across America have made different rulings as to whether or not groundwater pollution is covered under the Clean Water Act.
The act prohibits “any addition of any pollutant to navigable waters from any point source.” Dumping waste directly into water supplies is clearly prohibited, but dumping waste into an intermediary, such as groundwater, is a gray area.
In 2018, courts in the ninth and fourth circuits ruled that groundwater provides a traceable connection between a point source and a navigable waterway. But courts in the sixth and fourth circuits rejected the notion that coal ash ponds constitute point sources.
The ninth circuit case ruled that Maui County in Hawaii violated the Clean Water Act by releasing wastewater into injection wells that eventually ended up in the Pacific Ocean. The county appealed to the U.S. Supreme Court, which agreed on Feb. 19 to hear the case. Its decision could determine whether groundwater pollution violates the Clean Water Act.
