Pointing to years of documented pollution from a Central Kentucky coal-fired power plant, environmental groups are suing Kentucky Utilities. The lawsuit was filed Wednesday in federal court in Lexington.
The issue is ongoing coal ash pollution at the E.W. Brown plant, which is near Danville. The power plant also sits directly next to Herrington Lake, which is a popular recreation spot. But for the past six years, regulators have documented contaminated water flowing into the lake. Fish tissue sampling done last year revealed the fish in Herrington Lake have been poisoned with selenium, which is one of the elements present in coal ash.
Earthjustice Attorney Thom Cmar is representing the Kentucky Waterways Alliance and the Sierra Club in the lawsuit.
“As long as there’s 6 million cubic yards of coal ash buried alongside this lake, there will be an ongoing source of pollution unless very significant steps are taken to remove that ash or eliminate the contact between that ash and groundwater,” Cmar said.
The lawsuit alleges Kentucky Utilities violated two federal laws: the Clean Water Act and the Resource Conservation and Recovery Act. KU, along with Louisville Gas and Electric is owned by the PPL Corporation.
"We firmly believe the E.W. Brown plant is in compliance with all applicable regulations and we're prepared to defend our case in court if necessary," KU spokeswoman Chris Whelan said.
'Great Concern' About The Water
Herrington Lake is a 2,300-acre man-made lake that’s popular for fishing and boating. Homes and marinas line its banks.
Julie Pease moved into her home on the lake in Danville five years ago. She said this summer, since learning about the coal plant pollution, she’s foregone swimming in the lake.
“I have great concern about what is actually in the water,” she said. “A lot of people do rely on this water, and it’s a limited resource that we need to do our best to protect.”
The Brown plant is permitted to release a certain amount of pollution — legally — into Herrington Lake. But for at least six years, there have been illegal discharges from the coal ash site, too. This pollution was the subject of a WFPL investigation in February.
The plant burns coal for electricity, and for years disposed of the coal ash (a byproduct) in a massive pond. Several years ago, Kentucky Utilities began the process of closing the pond, and constructing a landfill over the top of it. But over the course of several visits, state inspectors documented polluted runoff flowing into Lake Herrington. In some cases, the runoff had more than 98 times the maximum allowable level of arsenic, and levels of iron and manganese were also high.
The utility took several steps to address the issue, but the end result was ultimately pumping the polluted water into a separate pond, where it was diluted before being legally released into Herrington Lake.
The lake also provides drinking water to surrounding communities; KU spokeswoman Chris Whelan said there's no evidence the coal ash pollution has affected drinking water.
"The Kentucky Energy and Environment Cabinet has surveyed the water near the permitted outfall and found no evidence of contamination to the drinking water supplies," she said. "Furthermore, the city of Danville and Harrodsburg water treatment plants have affirmed their water supplies have not been impacted by our plant activities."
Selenium Poisoning
But last year, state regulators got a sign that the pollution had already done damage to the lake and its ecosystem. Nine out of ten fish tissue samples exceeded the state’s criteria for a chemical called selenium. Selenium is naturally-occurring, but is found in coal ash in high concentrations. It’s dangerous for aquatic life, and can cause everything from reproductive problems to grotesque deformities in fish.
In an interview in February, Whelan said the company wasn’t convinced the high levels of selenium in Herrington Lake’s fish were connected to the Brown plant’s ash pond at all.
“Selenium is a naturally occurring element, and we’re not sure what caused that,” she said. “We know that there are higher levels there, we do see that. So we’re going to continue monitoring that and work with the state to make sure it doesn’t happen again.”
But aquatic biologist Dennis Lemly, who’s a technical advisor to Earthjustice on the lawsuit, said he thinks that’s unlikely.
“In the cases I’ve investigated around the world, there’s never been a case that I have found that had the amount of selenium in close proximity to a coal fired power plant ash pond that wasn’t coming from the ash pond,” Lemly said. “So if that was the case at Lake Herrington, it would be the first example of that in literally dozens of case I’ve investigated around the world.”
Lemly said there are two key takeaways from the situation at the Brown plant: that selenium-laced water has been leaching from the covered coal ash pond, and that there are documented high levels of selenium in fish tissue.
“So all those pointers indicate that there is an extreme hazard of selenium from the power plant, and it’s actually materialized itself in accumulation in the fish in Lake Herrington,” he said.
In a site visit in April, Kentucky Division of Waste Management Geologist Todd Hendricks notedthe power plant's coal pile could be another potential source of selenium.
Kentucky Utilitiespaid $25,000 to the state for the violation, and is currently finalizing a Corrective Action Plan to address the problem.
The Lawsuit
“The core of our case here is based on the company’s own data and reporting,” said Earthjustice attorney Thom Cmar.
The complaint filed in U.S. District Court Wednesday asks a judge to require Kentucky Utilities comply with the Clean Water Act, stop the coal ash from coming into contact with groundwater and surface water and mitigate the damage that’s been done by the pollution.
They’re also asking for civil penalties, which under the Clean Water Act can go up to $37,500 per day, and court and attorney costs.
Cmar said he doesn’t believe any of the steps the utilities have taken so far will fully address the problem.
“This is a long term problem and it’s going to require a significant long term solution,” he said. “We do not believe that any of the steps the company is in the process of taking will address the most important underlying problem, which is that there are 6 million cubic yards of buried coal ash next to the lake that are in contact with groundwater, and that is going to continue over time unless the company on its own or through a court order removes that ash or otherwise takes steps to prevent the ongoing contamination of the lake.”
This story has been updated.
