Sierra Club plans to sue LG&E, citing footage of coal ash wastewater flowing into Ohio River from Mill Creek plant (UPDATE)

Citing evidence obtained by a hidden camera positioned across the Ohio River from Louisville Gas & Electric’s Mill Creek power plant, the Sierra Club and Earthjustice have given their notice of intent to sue LG&E for violating the federal Clean Water Act and the terms of the utility’s own permit, which allows only an “occasional” discharge of coal ash wastewater into the river.

Last year, local Sierra Club organizer Thomas Pearce set up a time lapse camera across the river from the Louisville plant, which has led to a year’s worth of images showing not an occasional discharge or small leakage from the edge of Mill Creek coal ash pond, but a constant gushing into the Ohio River.

Below is a photograph of the discharge coming from this camera — highlighted by the red box — as well as photos and video taken from a boat closer to the Mill Creek coal ash pond:

Mill Creek screen grab from hidden camera_highlighted

mill creek photo 2

Mill.Creek spill boat photo

Additionally, Sierra Club and Earthjustice found images from Google Earth over the past two decades showing a similar discharge in the same area, resembling what you see at Mill Creek today:

Google Earth 2014

Google Earth 2014

Google Earth 2010

Google Earth 2010

Google Earth 2005

Google Earth 2005

Google Earth 1998

Google Earth 1998

LG&E’s permit for Mill Creek through the Kentucky Department of Environmental Protection allows for an “occasional” discharge of wastewater from the coal ash pond into the Ohio River, but in the 60-day notice of intent to sue LG&E, the Sierra Club and Earthjustice claim that the evidence is overwhelming that such discharge — occurring “on an almost daily basis”– is a clear violation of both the permit with the state and the federal Clean Water Act. The full notice of intent is below:

Sierra Club NOI to sue LG&E for Mill Creek discharge

Coal ash ponds contain contain byproducts from the burning of coal at power plants, including such toxic pollutants as arsenic, mercury, selenium, lead, and cadmium. According to LG&E’s 2007 permit renewal application for Mill Creek, the discharges from this coal ash pond contain significant levels of each of these toxic pollutants, as well as others.

While LG&E has been slapped on the wrist in recent years by the Metro Air Pollution Control District with fines ranging in tens of thousands of dollars for fly ash blowing out of the coal ash landfill at their Cane Run plant just up the river in Louisville, the notice of intent to sue by the Sierra Club and Earthjustice says that violations ranging back from 2009 alone would call for an extremely stiff penalty:

“Under the CWA, 33 U.S.C. § 1319(d) and 40 C.F.R. § 19.4, each of the violations described herein occurring on or after January 13, 2009 is subject to a penalty of up to $37,500 per day per violation. Thus, LG&E is subject to over $68 million in civil penalties.”

This notice of intent to sue LG&E comes just a month after a retired Duke Energy coal plant in North Carolina spilled up to 82,000 tons of coal ash and 27 million gallons of wastewater into the Dan River.

Currently, there are no federal safeguards specific to coal ash pollution, though the Sierra Club is allied with almost a dozen other environmental organizations compelling the EPA to finalize safeguards against coal ash pollution by the end of this year. Kentucky, a state where the coal industry has enormous political power, employs little to no oversight over coal ash landfills and ponds throughout the state, many of which have been leaking into groundwater slowly for many years.

“It’s devastating to think that this could have been going on for more than 20 years,” says Sierra Club organizer Thomas Pearce, who installed the camera monitoring the Mill Creek discharge last year. “It’s like the North Carolina or West Virginia spills but in slow motion, with no one to stop it.”

“Coal ash contamination is rampant across the country, and the evidence gathered at Mill Creek is unequivocal,” says Earthjustice attorney Thom Cmar. “Coal ash has already polluted more than 200 lakes, rivers, streams and drinking waters. The problem continues to worsen, but no federal protections exist. Our household garbage is better regulated than this toxic waste.”

We’ll update the story once we receive a comment from LG&E.

***** UPDATE *****

Here’s LG&E response — which doesn’t respond to the charges — by Chris Whelan, their Vice President of Communications:

“We have not received a formal notice of intent and we will not comment on potential litigation.”

We also received this response from Dick Brown, the spokesperson for the Kentucky Energy and Environment Cabinet:

The following information is in regards to the discharge identified in the March 17, 2014 Notice of Intent (NOI) from the Sierra Club to sue Louisville Gas & Electric Company (LG&E) Mill Creek Generating Station. 
 
The discharge identified in the NOI is a legally permitted discharge under the Clean Water Act Section 402 permitting program as administered by the Division of Water (DOW). The discharge is monitored under that KPDES permit and has been and continues to be in compliance with permit requirements.
 
LG&E Mill Creek
KY0003221
Permit issued May 6, 2002, effective November 1, 2002
Permit reissuance application received May 14, 2007
Administrative complete May 21, 2007
Permit renewal application remains under review
 
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.

More updates to come…

***** UPDATE #2 *****

Thomas Cmar, the attorney for Earthjustice, responded to the claims of the Division of Water:

“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.”

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    Sierra Club plans to sue LG&E, citing footage of coal ash wastewater flowing into Ohio River from Mill Creek plant (UPDATE) – FatLip