A showdown in court may be brewing after the Sierra Club and its legal team at Earthjustice revealed that they had accumulated a year’s worth of time- lapse photography of regulated wastewater spewing from a power plant’s coal ash pond into the Ohio River just south of Louisville, Kentucky.
The groups have sent a notice-of-intent letter (NOI) to the plant operator, Louisville Gas & Electric (LG&E), indicating that they intend to file a Clean Water Act (CWA) citizen suit if the utility does not come into compliance with the terms of its Kentucky pollutant discharge elimination system (KPDES) permit. The company has not responded; however, the Kentucky Division of Water released a statement saying that the discharges did not violate the permit.
Tree-mounted camera
According to the Sierra Club/Earthjustice, a camera strapped to tree by a Sierra Club organizer recorded a year’s worth of images of an outfall (Outfall 002) from a 43-acre unlined ash pond releasing wastewater directly into the Ohio River. “Upon information and belief, Outfall 002 has discharged directly to the Ohio River almost daily since March 17, 2009, and in the absence of any corrective measures by LG&E to date, continues to discharge directly to the Ohio River on an almost daily basis,” state the groups, who supplemented the tree-mounted photography with Google Earth satellite images dating back to 1993.
In their NOI, the groups state that the pond contains ash sluice water, boiler chemical cleaning waste waters, cooling water, reverse osmosis treatment waste, sump flows, natural gas system wastewaters, plant feedwater makeup treatment wastes, and stormwater runoff from process, coal pile, limestone pile, and ash treatment basin areas. These flows contain “significant levels” of toxic pollutants, including arsenic, mercury, selenium, lead, and cadmium, the groups state.
‘Occasional’ discharges
The legal charge made by the groups is that LG&E’s KPDES permit (a CWA permit issued by Kentucky) allows these discharges at Outfall 002 on an “occasional” basis. “Since the plain meaning of ‘occasional’ is ‘occurring from time to time’ or ‘irregular; infrequent,’ Outfall 002’s direct discharges to the Ohio River on an almost daily basis are a violation of the frequency limitation contained in Permit KY0003221,” say Sierra Club/Earthjustice.
The letter adds that if LG&E fails to come into compliance with the terms of the permit within 60 days, the Sierra Club intends to file a citizen suit under Section 505(a)(1) of the CWA, seeking civil penalties and injunctive relief. The letter adds that the Sierra Club reserves the right to seek civil penalties for any further violations of the CWA stemming from the discharges that may have occurred since the last discharge monitoring reports were submitted or after the March 17, 2014, date of the letter.
A spokesperson for LG&E said the company would not comment on pending litigation.
No frequency restriction
But in a brief statement, the Kentucky Division of Water said the discharges recorded in the photography collected by the Sierra Club are legally permitted. While the KPDES permit does indeed indicate that the allowed discharges are occasional, the state notes that the permit places no restriction on the frequency of those discharges. In addition, the discharge monitoring results submitted by LG&E are within required limits, says the state.
The Sierra Club/Earthjustice letter