Groups sought to stop pollution into this Central Kentucky lake. But a judge said no.

Kentucky Utilities’ E.W. Brown Power Generating Station is next to Herrington Lake near Burgin in Mercer County. A coal ash retaining pond is shown in the upper middle portion of the image.
Kentucky Utilities’ E.W. Brown Power Generating Station is next to Herrington Lake near Burgin in Mercer County. A coal ash retaining pond is shown in the upper middle portion of the image.

A federal judge has dismissed a lawsuit that sought to stop the discharge of pollutants into Herrington Lake. Meanwhile, the two environmental groups that filed the complaint are considering whether to appeal.

U.S. District Court Judge Danny Reeves dismissed the lawsuit in which the Sierra Club and the Kentucky Waterways Alliance sought to stop the alleged discharge from the ash ponds at the coal-fired E.W. Brown plant that generates electricity. The plant near Burgin in Mercer County is owned and operated by Kentucky Utilities.

The lawsuit, filed in July, said KU’s handling, storage, treatment, transportation and disposal of coal ash wastes presented an imminent and substantial danger to human health and the environment in violation of the federal Resource Conservation and Recovery Act, and led to an unpermitted discharge of pollutants in violation of the federal Clean Water Act.

“We are disappointed in the decision because we did feel like the federal claims we brought were well within the scope of the court’s authority to order Kentucky Utilities to come forward with a plan to protect Herrington Lake,” said Thomas Cmar, an attorney for Earthjustice, a nonprofit environmental law organization.

“But at the same time, were are strongly considering an appeal of that decision to the Sixth Circuit Court of Appeals in Cincinnati,” Cmar said.

Reeves said in his written opinion and order that the lawsuit was filed against KU three months after the company agreed to submit to a remedial action plan and two corrective action plans to remedy the impacts to groundwater and surface water at and around the E.W. Brown plant. Those corrective action plans call for groundwater studies and require KU to recommend remedial actions when the studies are complete. Those studies haven’t been completed, and KU hasn’t yet made the required recommendations of what remedial actions are warranted.

Therefore, the citizens whom the Sierra Club and Kentucky Waterways Alliance represent can’t bring an illegal-discharge claim at this time, the judge wrote.

In addition, Reeves said that pollutants travel through groundwater into the lake, and that takes it out of the scope of the Clean Water Act. Federal courts are split on whether the Clean Water Act applies to releases of pollutants into groundwater that eventually migrates into lakes or streams.

“That’s an issue which courts all over the country have heard, and the majority of courts, including recent decisions in Tennessee and North Carolina, have held that those types of pollutant discharges are subject to the federal law,” Cmar said.

Kentucky Utilities had sought dismissal of the suit and welcomed the Dec. 28 ruling.

“We feel that the judge made a well-reasoned ruling, and we’re obviously very pleased with his decision,” KU spokeswoman Chris Whelan said. “We take our commitment to the environment seriously, and we will continue to work with the state on our agreed-upon remediation plans.”

Whelan added: “KU remains confident it is in compliance with its landfill permit and the discharge limits in its water discharge permit, and that it is taking the proper steps to address all applicable environmental requirements.”

Herrington Lake is a popular destination for residents and tourists and is the source of drinking water for thousands of people in Boyle, Mercer and Garrard counties.