• 73°

Lawsuit: Environmental cabinet has documents related to Herrington Lake pollution issue its not releasing

Records of testing for toxic pollutants in Herrington Lake are among more than 180 records that the Kentucky Energy and Environmental Cabinet is being accused of withholding without a legal basis, according to a recently filed lawsuit.

The public interest law organization Earthjustice filed its suit against the cabinet Aug. 23 in Franklin Circuit Court. It’s seeking a court order to release the documents it says the cabinet has refused to release.

The documents involved are part of an ongoing claim against Kentucky Utilities’ E.W. Brown Generating Station, located just outside of Harrodsburg, asserting it has allowed toxic pollutants to run into the lake. Earthjustice, along with the Kentucky Waterways Alliance and Sierra Club, are seeking cleanup of the pollution, which they say is toxic coal ash waste that contains selenium, arsenic and boron. 

Those parties sued KU in 2017, demanding action be taken about the millions of yards of coal ash buried behind the generating station. Thomas Cmar, an Earthjustice attorney on the case, previously said groups have attempted to get KU to accept responsibility for the pollution and create a solution for almost five years now.

To help make its case, Earthjustice brought in a consultant — a fishery biologist with 30 years of experience who previously worked for the federal government in Fish and Wildlife. An independent, peer-reviewed study was provided, showing proof of fish with head and spine deformities associated with exposure to selenium.

KU, an affiliate of Louisville Gas & Electric, previously dismissed the results, which were published in an international scientific journal, as “political posturing” and said they were “inconsistent” with what other testing has found.

However, part of Earthjustice’s case included the Kentucky Division of Water’s testing results, showing 9 out of 10 fish near the plant had selenium levels far exceeding Kentucky water standards — 98 times the level allowed.

The tests had been conducted because roughly four years ago, KU was being inspected after being fined and entering into an agreement with the state to clean up contamination. During a follow-up inspection, more evidence of pollution was found in the discoloration of lake water near the site.

KU began pursuing a “corrective action plan” (CAP), which it created. That upset some residents, due to the difficulty of making comments during a 30-day comment period after the CAP was presented. Many contacted the state and asked for a public hearing or meeting to inform the residents of exactly what the CAP consisted of. The state would only say no meeting was planned.

In December, U.S. District Judge Danny Reeves ruled his court has no authority over the case. The suit’s complaints were based on two federal acts, The Federal Clean Water Act and the Resource Conservation and Recovery Act.

The ruling dismissing the groups’ case stated that “Congress determined that regulation of groundwater should be left to the states.”

That ruling has been appealed by Earthjustice.

Open records violation?

Attorneys for Earthjustice say to date, the environmental cabinet has refused to release more than 180 records pertaining to the case, and has offered no explanation as to why.

“After we filed the lawsuit, we continued sending records requests — it’s the only and best way we have to keep abreast of what conditions are at the E.W. Brown site and in the lake,” said Ben Locke, another Earthjustice attorney on the case. “And how to know what’s going on with the so-called ‘corrective action plan.’”

Locke uses the phrase “so-called” because many question the validity of the CAP. Multiple “phases of testing” were proposed to be conducted by KU, which Earthjustice claims is unnecessary.

“There were already two (tests) done. Nonetheless, they are going to conduct more, and within the corrective action plan, KU would issue a determination as to whether a remedy is needed and what it called for,” Locke said.

That corrective plan was accepted by the state cabinet.

“More data is always welcome, but our position is that there’s enough data and a remedy is called for and warranted on the basis of what’s already been collected,” Locke said. “In our opinion, the state should be stepping up to clean it up. It’s their job. But they essentially left it in KU’s hands. They went on the record saying they’ve got it under control with the corrective action plan. Now, we’ve asked for proof, and they’re refusing to disclose it.”

He said they know at least one document withheld by the state is related to the studies KU has undertaken on the lake. 

Locke pointed to the Kentucky open records law, which says the agency has to produce records requested or state the legal exception that allows a document to be withheld. He said the agency’s final response to records requested stated that documents were withheld, but gave no reason as to why.

“If the state wants to reassure the public it has the contamination under control, they need to disclose the documents to explain how,” Locke said.

He said the purpose of the Kentucky Open Records Act is to create transparency in the government, and concerned citizens have a right to know what is going on in their backyards, and what the government is up to when the health of their families and their lake is at stake.

“The Kentucky Energy and Environment Cabinet willfully violated the law when it withheld the documents we requested without explanation,” Locke said. “The situation in Herrington Lake is too serious for the cabinet to withhold vital information about ongoing pollution.”

As far as Earthjustice suing a state cabinet, Locke said, “It is uncommon. However, it is also uncommon for state agencies to stonewall these types of public records requests. That’s why we’re taking the extraordinary step of filing a lawsuit to obtain the information.”

“This matter will be decided by the court system,” said John Mura, executive director of the office of communication for the Kentucky Energy and Environment Cabinet. “Our legal staff is diligent in following the law.”