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Using Hidden Camera Evidence, Environmental Groups Plan to Sue LG&E for Discharges into Ohio River

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 filed by the Sierra Club and Earthjustice 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.

"It’s obvious that they think they can operate with impunity," said Tom Pearce, a local Sierra Club organizer. "It’s the reason that we can’t eat fish out of our river. It’s the reason that our river is rates as one of the dirtiest rivers in the country. Is it any wonder?"

Coal ash is a byproduct of burning coal for electricity, and contains chemicals and heavy metals like mercury, arsenic, and lead. An LG&E spokeswoman says the company won’t comment on pending litigation. The Kentucky Division of Water sent a statement saying the releases captured on film by the Sierra Club are legal, and LG&E’s permit doesn’t limit how frequently the company can discharge into the Ohio River.

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.”

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