What 'Occasional' Really Means Is Key to Sierra Club's Planned Lawsuit Against LG&E

Last week, environmental groups announced their plans to sue Louisville Gas & Electric for pollution the company releases into the Ohio River from its Mill Creek power plant in Louisville. Sierra Club organizers took a year’s worth of time lapse photos from a hidden camera across the river from the plant, and captured a near-constant flow of water from Mill Creek’s coal ash pond into the river.

Looking at images from Google Earth, they estimated that the discharge has been going on since at least 1993.

But has LG&E actually been breaking the law and violating their permit, like Earthjustice and the Sierra Club contend? The legal argument, as laid out in the notice of intent to sue, hinges on the inclusion of one word:

“Occasional.”

According to the notice:
LG&E’s  KPDES permit for Mill Creek Station only allows Outfall 002 to directly discharge to the Ohio River on an “occasional” basis. Since the plain meaning of “occasional” is “occurring from time to time” or “irregular; infrequent,” Outfall 002’s direct discharges to the Ohio River on an almost daily basis are a violation of the frequency limitation contained in Permit KY0003221. Upon information and belief, Outfall 002 has discharged directly to the Ohio River almost daily since March 17, 2009, and in the absence of any corrective measures by LG&E to date, continues to discharge directly to the Ohio River on an almost daily basis. Consequently, LG&E has violated and continues to violate Section 301(a) of the CWA on each day since March 17, 2009, for discharging directly to the Ohio River from Outfall 002 on a more than “occasional” basis, in violation of the KPDES permit for Mill Creek Station.
LG&E has declined to comment on the notice of intent, citing pending litigation, but the state Energy and Environment Cabinet has said the company isn’t in violation of its permit.

The absurdity of both allowing occasional discharges and not restricting the frequency of pollution events attracted national news—likefrom MSNBC’s Rachel Maddow. So, what are the arguments here?

1. The documentfiled by the Sierra Club and Earthjustice argues that LG&E is in clear violation of their permit, because the permit clearly states that any discharge from Outfall 002 (the one the Sierra Club took pictures of) directly into the Ohio River is supposed to be “occasional.” Here’s where it talks about that on the first page of LG&E’s permit for Mill Creek (emphasis mine):

• But Department for Environmental Protection Commissioner Bruce Scott says the important part of the permit cover page is what comes after the “occasional” description (again, emphasis mine):

  He says LG&E described the discharge as "occasional," but that's not something the department takes into consideration when setting standards. Instead, he says the department is concerned with the quality—not quantity—of the water that’s discharged.  “Whether the discharge is intermittent or continuous, we look at that as if it’s always going to be discharged when we develop effluent limitations,” he says. “So whether it’s periodic discharge or continuous, the restrictions we put on it from a quality perspective assume it’s always going to be discharged. And in fact, it is.”

• These first two points are technically what the potential lawsuit is about, but there are a few other points worth knowing. According to the permit, what’s supposed to happen most of the time is the wastewater that the Sierra Club photographed is supposed to go out another exit (“Outfall 001”), and then be released into the Ohio River. There’s no restriction on how often Outfall 001 can release directly into the river. So, why would environmental groups care how the pollution gets to the river if it’ll end up there anyway? Earthjustice attorney Thom Cmar says it’s all about dilution. “This is an internal point in the plant that’s supposed to send its waste stream into the plant’s main wastewater treatment system, where there’s significant reductions in the concentration of pollution that happens before the water is discharged into the Ohio,” Cmar says

4. Before the water is released into the Ohio River, Scott says it runs over a small dam, where monitoring is done. Most of that monitoring is performed by LG&E, and submitted to the Energy and Environment Cabinet. Scott says the discharge is monitored for several pollutants, including total metals, solids, pH and toxicity, and the last several years of data suggest the pollution isn’t toxic to aquatic life. Here’s the part of the permit that sets limits on the pollution that comes out of Outfall 002:

• But Cmar says the fact that there’s just a blanket category for “total recoverable metals,” is problematic. “This permit lacks specific monitoring requirements for mercury, for arsenic, for selenium, for other toxic pollutants that are the ones that we’re most concerned about when we’re talking about coal ash waste,” he says. Cmar also cites LG&E's 2007 permit renewal (which is still pending, so the company is operating under the 2002 version), that he says shows high levels of mercury coming from the coal ash pond.

Ultimately, the legal document comes down to allegations that LG&E is violating the permit issued by the Energy and Environment Cabinet—not whether the permit is appropriate or protective of the environment.

LG&E has until mid-May to respond to the notice of intent to sue; if the company can’t reach a resolution that’s satisfactory to the environmental groups, Sierra Club and Earthjustice plan to file a lawsuit.