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LG&E Pollution Lawsuit Hinges on Intent and the Meaning of 'Occasional'

Courtesy Sierra Club

It’s a case that involves environmental law, regulations—and the English language.

A federal judge in Louisville is considering whether Louisville Gas & Electric violated its water pollution permitat the Mill Creek Power Plant, as environmental groups allege.

Here’s what the parties agree on. At Mill Creek, there’s a pond holding large quantities of coal ash produced by burning coal at the plant. There are two permitted places water can leave that pond. One of those places—“outfall 001”—mixes the polluted water from the ash pond with cooling water from the plant before it ends up in the Ohio River. The other—“outfall 002”—discharges the polluted water from the ash pond directly in the river. Louisville Gas and Electric used both of those exit points often, discharging water nearly every day.

But at issue is how frequently the company was allowed to release water directly into the river.

Lawyers for the Sierra Club and Earthjustice, who filed the lawsuit, point to the inclusion of one word—“occasional”—on the cover page of the permit (emphasis mine).
Read the permit here.

In court today, Earthjustice attorney Thomas Cmar argued that it doesn’t matter what occasional means, but what it doesn’t mean. Occasional doesn’t mean continuous, he said. And he said evidence from both Google Earth images and Sierra Club cameras suggest that LG&E was discharging straight into the Ohio River almost every day for at least the last five years.

But attorneys for LG&E—and the Kentucky Division of Water, which filed an amicus brief in the lawsuit—said using “occasional” on the cover page doesn’t matter. Attorney Robert Rolfe called it a “descriptor” and pointed out that the rest of the permit doesn’t include any numeric limits on how much water can come out of Outfall 002.

“If you look at this permit, your honor, nowhere is there any described frequency limitation,” he told District Judge David Hale.

“[The word ‘occasional’ is] either there for a purpose or it’s there by mistake. It’s a pretty specific word,” Hale replied.

The reason environmental groups filed a lawsuit over the discharges is because of mercury pollution. Coal ash effluent contains high levels of mercury. Releasing the water directly into the river (out Outfall 002) results in higher concentrations of mercury than allowing it to mix with other water and becoming diluted (out Outfall 001) before going into the river.

The argument was dismissed by Rolfe as a red herring, but Cmar argued its validity.

LG&E sampling at the site indicated extremely high levels of mercury, he said. So high that continuous discharge directly into the Ohio River would have violated water quality standards. Therefore, he argued, if state regulators had intended to authorize continuous discharge from Outfall 002, “it would have been an unlawful permit.”

Ultimately, Judge Hale will have to determine what regulators intended to allow when LG&E was issued the Mill Creek permit in 2002. That permit expired in 2007, but because the state hasn’t acted on the renewal, Mill Creek is still operating under the same rules today.

Image courtesy of Sierra Club.