Environment

A federal judge has dismissed a lawsuit against Kentucky Utilities over coal ash pollution in Herrington Lake, ruling that the situation should be addressed by state regulators, rather than the federal court system.

In the opinion signed on December 28, U.S. District Judge Danny Reeves rejects claims by non-profit Earthjustice that the court has authority to rule on the issue under the federal Clean Water Act and Resource Conservation and Recovery Act. Rather, he said the groundwater pollution and contamination of Herrington Lake should be addressed by Kentucky regulators, who are currently working with the utility to implement corrective actions.

Earthjustice Attorney Thomas Cmar said he was disappointed with the judge’s narrow view of the court’s authority.

“The federal court has the authority to order the company to take additional steps to clean up the lake in a much more effective and expeditious way,” Cmar said. “And the court here declined to exercise that authority, but we feel like that’s something that’s clearly within federal law.”

Kentucky Utilities spokeswoman Chris Whelan said the company was very pleased with the judge’s decision.

“We will continue to work our remediation plan that we had approved with the state and we take our commitment to the environment seriously,” she said.

The Lawsuit

The lawsuit was filed in July by Earthjustice, on behalf of environmental nonprofits Sierra Club and Kentucky Waterways Alliance. It points to years of documented pollution from a coal ash landfill at Kentucky Utilities’ E.W. Brown Plant running into Herrington Lake near Danville. In 2016, state fish tissue sampling found high levels of selenium in the lake’s fish, and additional samples collected as part of the lawsuit found the problem was more extensive than previously thought.

Kentucky Utilities has been working with the state for years to address groundwater contamination, and the Kentucky Department of Environmental Protection levied one $25,000 fine on the company last year for the selenium issue. In addition to the civil penalties, the company was required to complete a corrective action plan. That plan hasn’t yet been finalized.

But citing the years of state inaction and the ongoing issues at the Brown plant, attorney Thom Cmar filed the lawsuit.

“This is a long term problem and it’s going to require a significant long term solution,” he told WFPL in July. “We do not believe that any of the steps the company is in the process of taking will address the most important underlying problem, which is that there are six million cubic yards of buried coal ash next to the lake that are in contact with groundwater, and that is going to continue over time unless the company on its own or through a court order removes that ash or otherwise takes steps to prevent the ongoing contamination of the lake.”

Now, with Judge Reeves’ opinion that the matter is better addressed by state regulators, Cmar expressed concerns that the problem will never be sufficiently dealt with.

“Our concern is that this simply kicks the can down the road once again,” he said.

Cmar said Earthjustice is seriously considering appealing the judge’s opinion, but in the meantime, he called for the Kentucky Department for Environmental Protection to take action.

“The state really has an opportunity here to show us that none of these legal efforts are necessary. If the state were to do its job, we wouldn’t have ever needed to pursue a federal lawsuit,” Cmar said. “This is an opportunity for the state to finally face up to the situation that’s been created in Herrington Lake and force the company to come to the table and offer up real solutions for how to clean up its mess.”

A spokesman for the Kentucky DEP declined a request for comment.

Poisoned Fish

One of the looming issues for Kentucky regulators and the utility to address is the poisoning of Herrington Lake’s fish. In 2016, the state’s sampling found nine out of 10 fish tissue samples from the lake exceeded Kentucky’s fish tissue selenium criteria — that was the issue that prompted the $25,000 fine and corrective action plan.

Courtesy Dennis Lemly

Young-of-the-year largemouth bass collected in June 2016 from Herrington Lake. The top individual exhibits scoliosis, which is a common deformity caused by selenium poisoning. The bottom individual is normal.

More recently, fish tissue sampling conducted by aquatic biologist Dennis Lemly for Earthjustice found the problem was even more extensive. He tested 548 fish in 2017, and found about 12 percent of them showed serious physical deformities — everything from craniofacial deformities to skeletal problems.

“If you look at the background deformity rate, you might find 1 out of 200 fish that has a minor fin deformity,” Lemly told WPFL in November. “In comparison, in Herrington Lake, over 1 out of 10 had deformities that were manifested in these major skeletal deformities.”

In December, Lemly’s research was accepted into a peer-reviewed scientific journal: Ecotoxicology and Environmental Safety. This means his work was examined by a board of scholarly reviewers, and found to meet the journal’s scientific standards.

Kentucky Utilities is currently conducting its own fish tissue sampling through a third party, and Whelan dismissed questions about Lemly’s research and whether the company would place any weight on his findings.

“It was not done for us, it was done for the lawsuit,” she said of the testing. “And that’s kind of a tactic in a lot of lawsuits, you bring in someone to do your testing for you. So from our standpoint, we really would rather see the results of the tests that we know how it was conducted, it’s being done by an outside third party and then we can evaluate.”

In the meantime, KU’s corrective action plan has still not been finalized. The state received more than 400 comments on the document; all opposed the plan and called for more public input and quicker clean-up action on the part of KU.

Erica Peterson is WFPL's Director of News and Programming.