An environmental law organization has filed a lawsuit compelling Kentucky’s Energy and Environment Cabinet to turn over records regarding coal ash pollution from the E.W. Brown power plant near Danville that is contaminating Herrington Lake.
Earthjustice says state environmental regulators have withheld more than 180 documents that could reveal more information about plans to clean-up pollution at the lake — a popular recreation spot and drinking water source.
“The state has held out that it has the contamination problem under control, but it refuses to show us the documents to prove its claim,” said Benjamin Locke, Earthjustice associate attorney. “The public has a right to know what the records say and what’s going on in Herrington Lake.”
Some of the records Earthjustice is seeking include information about the plant’s owner, Kentucky Utilities, and its compliance with environmental permits, corrective action plans and groundwater monitoring, Locke said.
The Energy and Environment Cabinet cited open records exemptions in its response to Earthjustice’s requests for records, according to the complaint filed Thursday.
Among them, was a commonly used exception that says preliminary drafts, notes and correspondence are not subject to public review as long as it’s not part of a final action from a public agency.
“We are looking into the particulars of the lawsuit, but our legal staff here is diligent in following the law,” said Cabinet Spokesman John Mura.
The agency has 20 days to file a response to the complaint.
As WFPL has reported, there are more than six years’ worth of documents showing contaminated water — including arsenic and selenium — that leached from an ash pond at the E.W. Brown Generating Station into groundwater and directly into Herrington Lake.
Selenium is a naturally-occurring element that can be toxic to wildlife in large amounts. Once it gets into a body of water it’s very difficult to eradicate. While it exists in nature, it’s also found in coal ash — the byproduct of burning coal for electricity.
The state’s own sampling found nine out of 10 fish tissue samples taken in 2016 from the same lake exceeded Kentucky’s fish tissue selenium criteria.
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 a Jan. 2017 agreed order, Kentucky Utilities had to make a plan for eliminating certain discharges into the lake while meeting state guidelines for others.
The utility already had to address historic groundwater contamination under a 2014 Groundwater Remedial Action Plan. That plan required Kentucky Utilities to address “the totality” of surface and groundwater pollution — and in the meantime pursue strategies to reduce contaminants from entering the lake through groundwater, according to the agreed order.
Meanwhile the 2017 agreement required Kentucky Utilities to perform another study to see if further remediation was necessary, beyond the 2014 plan. That plan was designed before the full extent of the contamination was known.
“At the conclusion of that study, KU’s recommendation is not for remedial measures, but rather for additional studies,” Earthjustice attorney Locke said. “So it’s become clear that the corrective action plan is not a plan for corrective action, it’s just a plan for delay, essentially.”
Earthjustice is currently appealing another federal lawsuit against the state after a federal judge dismissed it in December without hearing evidence in the case.
Earlier this month, the environmental group’s attorneys argued before the Sixth Circuit Court of Appeals that their clients had legal standing to challenge Kentucky Utilities for polluting Herrington Lake. The case could be decided later this year.