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Ky. ignored pollution, appeals court affirms

James Bruggers
Louisville Courier Journal
A Trimble power plant pond in 2009.

The Kentucky Court of Appeals has sent a 2010 power plant water discharge permit back to Kentucky regulators, instructing them to conduct an analysis for curbing mercury and other toxic pollutants, and potentially requiring more stringent controls on them.

At issue is LG&E's Trimble power plant in Trimble County, and whether the Kentucky Division of Water conducted a correct analysis in determining the pollution limits from discharges into the Ohio River, and whether an existing settling pond alone is proper control technology.

It's an increasingly important matter because as more toxic pollution is taken out of smokestack emissions, it can be potentially be released into water ways. And as the appeals court ruling stated, heavy metals do not exist as particles that settle to the bottom of settling ponds.

The permit limited levels of oil, grease, suspended solids and levels of pH, but did not place any curbs on arsenic, mercury, selenium and other toxic metals found in scrubber sludge wastewater. Franklin Circuit Court Judge Phillip Shepherd found in 2013 that the state should have followed a procedure stemming from 1983 regulations from the U.S. Environmental Protection Agency that would have involved a detailed review of potential toxic pollution before granting the permit.

The original case against the state and LG&E had been brought by the environmental groups Kentucky Waterways Alliance, Sierra Club, Valley Watch, and Save the Valley.

"We're pleased," said Judy Petersen, executive director of the Kentucky Waterways Alliance. "The whole idea behind discharge permits is that they should control all the discharges we know are in the waste stream. This decision upholds that."

Energy and Environment Cabinet General Counsel Mike Haines said the cabinet is reviewing its options, including "seeking a rehearing before the Court of Appeals (or) filing an appeal with the Kentucky Supreme Court." Accepting the opinion was not among the options he listed. An LG&E spokesman said she cannot comment about ongoing litigation.

A three judge Court of Appeals panel was split 2-1, but upheld Shepherd's ruling, sending the permit back to the state for more work.

For the majority, Judge Janet L. Stumbo wrote that the permit writer had put too much weight on a 1996 permit writer's manual, which ignored Clean Water Act requirements for businesses to use "technology necessary to eliminate the discharge of pollutants into the navigable waters" of the United States.

A review "would likely have required LG&E to update clearly obsolete and ineffective pollution control technology," she wrote.

Stumbo and Judge Christopher Shea Nickell in their ruling issued Friday also rejected arguments by the state that it had conducted a sufficient review of the power plant's effluent.

As the circuit court noted, the DOW permit writer charged with drafting the permit in question stated in her testimony that she did not consider any other control technology, nor did she consider the "practicality of expense" of that technology. Furthermore, the permit writer's testimony was conflicted on the subject of her consideration of the reduction in pollutants LG&E's gypsum ponds had had achieved over time.

Judge Irv Maze disagreed with most of the ruling and explained in his dissent that he put the blame in the legal dispute on the shoulders of the EPA, for having regulations that have not kept up with technology. But the former Jefferson County Attorney also wanted everyone to know he's not in favor of pollution.

Let there be no mistake: I am profoundly sympathetic to the fact that this case involves toxic substances which have proven ill effects for our environment and public health. I am equally aghast that for more than thirty years, the EPA has failed to promulgate new technology-based limits on the discharge of these substances into the Commonwealth's and the nation's streams and rivers.

Nevertheless, as a former Governor of this Commonwealth was fond of saying, I believe we must lead with our heads and not with our hearts.

Accordingly, while my heart urges me to change the fact that current regulations place no limit on the discharge of arsenic, mercury, and selenium in wet scrubber wastewater, my head compels me to conclude that it is not the
province of the judiciary to fill such a regulatory void.

Trimble Appeals Court ruling