Update 1:25 p.m.: Comments from Division of Water and Louisville Gas & Electric.
After collecting a year's worth of images of what they say are illegal discharges from one of Louisville Gas & Electric's coal ash ponds into the Ohio River, environmental groups say they plan to sue the company.
The Notice of Intent to Sue was filed today by the Sierra Club and Earthjustice. The document alleges that even though LG&E's permit allows "occasional" discharges directly into the Ohio River, the company has released water from its coal ash ponds into the river at least daily for the past five years. In a press release, the environmental groups say Google Earth photos suggest the practice could have been going on since 1993.
"It's devastating to think that this could have been going on for more than 20 years," said local Sierra Club organizer Thomas Pearce. "It's like the North Carolina or West Virginia spills but in slow motion, with no one to stop it."
To gather the data used in the lawsuit, the Sierra Club installed hidden cameras across the river from the Mill Creek power plant. The group says the time-lapsed images support the allegations that LG&E violated both its permit and the Clean Water Act when it discharged into the Ohio River.
Coal ash is a byproduct of burning coal for electricity, and contains chemicals and heavy metals like mercury, arsenic, and lead. LG&E stores its coal ash in ponds and dry landfills at both its Mill Creek and Cane Run power plants in Louisville. The lawsuit cites the company's 2007 state permit, saying that the discharge from the coal ash pond is known to contain "significant levels" of these heavy metals, as well as other pollutants.
In the legal documents filed today, Earthjustice and the Sierra Club give LG&E 60 days to come into compliance with the company's permit and federal law. If the company doesn't, the groups intend to file a lawsuit under the Clean Water Act.
Update: The Kentucky Division of Water has weighed in, and says it doesn't believe the discharges referenced in the NOI are illegal. As noted in the statement emailed below, even though the permit classifies the discharges as "occasional," the DOW doesn't interpret that as restricting frequency.
The KPDES permit includes authorization to discharge from outfall 002 either internally to outfall 001 or direct to the Ohio River at mile point 356. The discharge reflected in photos contained in news stories today and as referenced in the NOI is a legally permitted discharge.
While the permit description and narrative of the fact sheet describe the direct discharge component of outfall 002 to the Ohio River as “occasional”, the permit effluent requirements do not restrict the frequency of the discharge. Consequently, there is no violation of the permit for frequency of discharge from outfall 002 as alleged in the NOI. The flow volume is monitored in accordance with the permit.
In addition, the discharge is monitored for various parameters, including metals, and for whole effluent toxicity testing (WET) or biological monitoring. LG&E Mill Creek’s discharge monitoring results indicate that the discharge is in compliance with permit requirements.
A spokeswoman for Louisville Gas & Electric says the company hasn't yet received the NOI, and won't comment on pending litigation.
UPDATE 4:45pm: Attorney Tom Cmar from Earthjustice sent the following statement:
“The state can’t rewrite this permit in the press. The permit describes the point at which LG&E is dumping coal ash into the Ohio as ‘internal’ to the plant. The law clearly prevents regular toxic mercury discharges into our water, and LG&E’s own permit states that discharges may only be occasional. We’ve documented a year’s worth of constant coal ash wastewater dumping—far more than ‘occasional.’ The evidence shows that LG&E is in blatant violation of existing standards, threatening the health of Kentucky families.”