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Court Says Lawsuit Against KU Over Herrington Lake Pollution Can Move Forward

Pollution from the coal ash pond at the Brown power plant seeps into Herrington Lake.
R.T. Hendricks
Pollution from the coal ash pond at the Brown power plant seeps into Herrington Lake.

The Sierra Club and Kentucky Waterways Alliance can move forward with a lawsuit against Kentucky Utilities for contaminating Herrington Lake with pollution leftover from burning coal for electricity.

On Monday, the Sixth Circuit Court of Appeals reversed a ruling that blocked the environmental groups from suing Kentucky Utilities, which provides electricity for 77 counties in Kentucky.

The ruling affirms citizens’ rights to sue corporations for polluting the environment after the state has implemented “corrective action plans” to address the contamination under the Resource Conservation and Recovery Act, which regulates solid waste — including coal ash.

“It’s certainly a victory now that this federal rule, which really is a comprehensive rule, is applicable to coal ash basins and we do now have the ability to pursue action under it,” said Ward Wilson, Kentucky Waterways Alliance executive director.

However, the appeals court also upheld the lower court’s ruling that the Clean Water Act does not extend liability to pollution that reaches surface waters through groundwater, according to the opinion. The decision is a setback for environmental groups who file similar lawsuits under the Clean Water Act.

Kentucky Utilities spokeswoman Chris Whelan says Monday's decision does not prove the utility is liable under the Resource Conservation and Recovery Act.

"We take our commitment to the environment seriously and are pleased that the Sixth Circuit affirmed Judge Reeves on the Clean Water Act claim, interpreting that law as it was written by Congress," Whelan said in a statement. "We also believe Judge Reeves got the RCRA decision right, but are evaluating our options,."

For years, environmental advocates have argued the waste leftover from burning coal at the E.W. Brown power plant near Danville is leaching into Herrington Lake.

After reviewing testing data from the Sierra Club and the Kentucky Waterways Alliance, the state began its own investigation. Kentucky's Energy and Environment Cabinet found the utility was a significant source for selenium contamination in the lake.

Selenium is just one of many pollutants found in coal ash. Others include arsenic, lead, mercury and boron — all of which are known carcinogens.

While selenium is not dangerous to humans, it’s extremely toxic for fish.

Because of the contamination, Kentucky’s Department for Environmental Protection fined Kentucky Utilities $25,000 in civil penalties and required it to complete a corrective action plan.

Under the terms of the April 2017 plan, Kentucky Utilities said it would continue monitoring the coal ash pollution. If the pollution doesn't improve, the utility has to take further measures to clean the contamination.

The Sierra Club and Kentucky Waterways Alliance filed a federal lawsuit in July of 2017 over concerns the state’s corrective action plan doesn't go far enough to clean up the pollution in Herrington Lake.

The U.S. District Court dismissed the case for two reasons:

  • Groundwater pollution is not covered under the federal Clean Water Act.
  • Plaintiffs lacked standing because the state already had an agreement with Kentucky Utilities to clean up the pollution. The court found that it could not redress a claim that was already being remedied by the state.

Wilson, with The Kentucky Waterways Alliance, said he's meeting with attorneys and working on next steps.

“We will probably persist with trying to get this cleaned up faster, whatever the best way for that is,” Wilson said. “The optimistic side of me says maybe the power company will say ‘lets get on this and get this behind us.’”

In a separate case filed in August, Earthjustice attorneys are compelling Kentucky’s Energy and Environment Cabinet to turn over more records regarding the coal ash pollution in Herrington Lake.

Ryan Van Velzer is WFPL's Energy and Environment Reporter. Email Ryan at rvanvelzer@lpm.org.

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