The state Supreme Court recently reaffirmed that, when it comes to environmental protection, the least possible allowed by law is good enough for Kentucky.
The unanimous ruling came in a challenge to the wastewater-discharge permit the state issued to Louisville Gas and Electric and Kentucky Utilities in 2010 for a new generator at its Trimble County power plant 30 miles upstream from Louisville. Power plants are the largest industrial source of toxic water pollution.
The Supreme Court overturned two lower court rulings in order to decide in favor of LG&E and the Energy and Environment Cabinet and against four environmental groups including the Kentucky Waterways Alliance and Sierra Club.
The environmental groups had argued that the state should have required LG&E to install technology to limit releases of mercury, arsenic and selenium into the Ohio River.
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As utilities have gotten better at removing pollution from smokestack emissions, more toxins are going into wastewater. After “wet scrubbing” pollutants from the Trimble stacks, LG&Epumps the wastewater into a pond, where solid pollutants settle to the bottom before the water is released into the river. But mercury, arsenic and selenium dissolve in water so this process does nothing to prevent the toxic heavy metals from going into the river.
The Ohio is under warning advisories against eating too much of its fish, from Ashland to the Mississippi River, because of contamination with mercury and other pollutants which can build up in humans, damage health and cause birth defects. Eating contaminated fish is especially dangerous for children and pregnant women. Selenium pollution can cause severe damage in fish.
The Supreme Court OK’ed the lack of controls for mercury and the other metals, citing a 1982 guidance from the U.S. Environmental Protection Agency on which the state relied.
The 1982 guidance put no limits on a long list of toxic pollutants because no technology existed for reducing the small amounts in which they were discharged.
Technology has come a long way since then.
The plaintiffs argued that, under the Clean Water Act, the state could and should have required LG&E to update the technology in order to reduce toxic water pollution. Franklin Circuit Judge Phillip Shepherd and Court of Appeals judges Janet Stumbo and Christopher Shea Nickell agreed. Appeals court judge Irv Maze agreed with LG&E and the state.
In 2010, the state’s permit writer reasoned that because the EPA had started the long process of adopting a new guideline the state should defer the “costly and drastic step” of developing its own standard for the Trimble plant, and the Supreme Court agreed, noting that the state did require monitoring of toxicity in the plant’s waste water.
Justice Lisabeth T. Hughes, who wrote the Supreme Court opinion, also made the very good point that the EPA’s “long delay in updating” the rule is “troublesome.”
The EPA finally put new limits on toxins in wastewater from power plants into effect in early 2016. (The new standards don’t apply retroactively.)
Environmental groups, including the Sierra Club, are challenging the delay and defending the long overdue update in court.