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Court Challenge Could Speed Clean Up Of Kentucky Coal Ash Pollution

Riverbank discoloration near the coal ash landfill at the Green Power Station in Henderson County in June 2017.
Riverbank discoloration near the coal ash landfill at the Green Power Station in Henderson County in June 2017.

Environmental groups are challenging a regulation that gives Kentucky power plants until 2020 to clean up pollution leaching out of unlined coal ash ponds. The groups say the new Trump administration rules finalized in July don't adequately protect the public from environmental harm.

Attorneys with Earthjustice filed the petition for review in the D.C. Court of Appeals on Monday.

“The communities downstream from these sites are the ones bearing the costs,” said Earthjustice attorney Thom Cmar. "Whether it’s the steady ongoing contamination of their water resources... or it’s the longer term and larger risk of a major catastrophe happening.”

Coal ash pollution comes from remnants of coal burned for energy. It contains carcinogens and neurotoxins and is often stored in large pools of water or in dry landfills.

All 14 power plants in Kentucky covered under the federal rules found contaminated groundwater on their sites, but it's not yet clear which ones will have to close their coal ash ponds.

But the ones that do have to close the ponds will have an extra 18 months under the EPA rules revised by Andrew Wheeler, a former coal lobbyist and the Environmental Protection Agency’s acting administrator.

For example, Kentucky Utilities' own records show groundwater is flowing through the bottom of the ash ponds at the EW Brown Plant near Danville and polluting Herrington Lake, Cmar said. Under the regulations, coal ash ponds aren’t allowed to be that close to an aquifer, and Cmar said they should be addressed sooner rather than later.

“We know there are a number of impoundments in Kentucky that are likely to violate this siting standard, most notably the impoundments at the EW Brown site,” Cmar said.

The latest court challenge comes after a significant victory for environmental groups.

Back in August, the D.C. Circuit Court decided the EPA inadequately addressed unlined and clay-lined coal ash ponds in its 2015 regulations, before Wheeler revised them.

The decision read in part:

“We hold that the EPA acted arbitrarily and capriciously and contrary to [solid waste regulations] in failing to require the closure of unlined surface impoundments, in classifying so-called 'clay-lined' impoundments as lined, and in exempting inactive surface impoundments at inactive power plants from regulation.”

As a result, the EPA has to re-write the rules and strengthen environmental protections for the ponds.

In the meantime, Earthjustice will begin filing briefs with the D.C. Circuit Court asking to repeal the deadline extensions for the closure of these ash ponds.

“We see this lawsuit as the follow-up to that, the same court has already told EPA it has to strengthen its protection of public health and safety for the communities downstream from these plants,” Cmar said.

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