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Judge Allows Lawsuit Over Water Pollution at LG&E's Mill Creek Plant to Proceed

Courtesy Sierra Club

A federal judge is allowing an environmental lawsuit against Louisville Gas & Electric to move forward.

Last year, the Sierra Club and Earthjustice filed a lawsuit against LG&E for ongoing water pollution at the company’s Mill Creek Power Plant in southwestern Jefferson County. Cameras placed across the Ohio River recorded a year’s worth of images showing a near-constant flow of water from a coal ash pond at the plant into the river.

The environmental groups allege that the pollution is illegal. On LG&E’s state-issued permit, it specifically allows “occasional” discharges from that point into the river. Attorneys argued “occasional” means “infrequent,” and doesn’t allow a constant flow of pollution. They say the continuous pollution has caused environmental damage to the river.

“There is a very high concentration of mercury in these discharges, which is very harmful to public health," said Earthjustice attorney Thomas Cmar.

"And this is an area of the Ohio River that has already been found by the state to have unsafe levels of mercury and to have fish consumption advisories."

The company argued those discharges were legal, under the terms of its permit. They said the inclusion of “occasional” is just a descriptor, and any actual limits would have to be laid out numerically on the following pages. And the Kentucky Energy and Environment Cabinet — the entity that issued that permit — agreed.

But U.S. District Judge David Hale apparently doesn’t think the matter is that obvious. Though LG&E argued the case be dismissed, Hale issued an order on Monday allowing the trial to proceed. He said there was a sufficient amount of ambiguity, and will allow both parties to proceed to gather more evidence in the case.

The Kentucky Energy and Environment Cabinet also filed an amicus brief in support of LG&E. In his order, Hale said he didn’t find the state’s opinion credible.Usually, deference is given to a permitting agency’s interpretation of a permit. But Hale said there was no evidence that the commonwealth had issued the permit intending to allow continuous water pollution. He also took a swipe at the Cabinet; LG&E’s Mill Creek coal ash pond is operating under a permit that expired in 2007, and regulators haven’t renewed it.

"Here, it appears to the Court that the Cabinet’s decision is a post hoc rationalization.
Indeed, the only prior pronouncement on the meaning of “occasional” came when Sierra Club gave notice of its intent to sue, and the Cabinet responded that LG&E was adhering to the terms of the Permit. Notably, this rapid response came from the same state government agency that has for over seven years been unable to advance LG&E’s permit renewal request. The Court is not inclined to give the Cabinet’s views deference, and so is unwilling to grant summary judgment based on the Cabinet’s interpretation. More discovery is needed to flesh out the issues surrounding this case."

Cmar said he expects the state and company's relationship to be an ongoing issue in the case.

"The state has allowed this permit to remain expired; it hasn’t reviewed the permit to ensure it's protecting public health in the water downstream from the plant,” Cmar said. “And at the same time, the state was so quick to defend the company when we recognized the language of the permit that the state issued in 2002 was being violated by this practice of nearly continuous dumping of toxic waste.”

Now both parties will gather more evidence, and the case could eventually go to trial. If the judge or a jury rules against LG&E, the company could be fined for years worth of illegal discharges. Cmar estimates those fines could total tens of millions of dollars.

LG&E spokeswoman Liz Pratt said the company is reviewing the ruling and will determine its next steps. "We appreciate the Court’s review of both parties’ positions here," she said.

The Kentucky Energy and Environment Cabinet didn't immediately comment Tuesday morning.

Featured image: courtesy Sierra Club.

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