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Nearly two years after a state inspector discovered an arsenic-laced plume of coal ash seeping out of a landfill at a power plant in Western Kentucky, the state Energy and Environment Cabinet has negotiated a deal to clean up the pollution. But environmental activists are concerned the agreement lets the utility off too easy.

Samples from the 2016 state inspection revealed arsenic levels exceeding federal standards by nearly a thousand times. Historic aerial images suggest the landfill at the D.B. Wilson power plant may have been leaking a black stream of coal ash since 2010, and perhaps as early as 2003, state records show.

Under the new agreed order signed in May, Big Rivers Electric Corporation won’t pay a fine unless it violates the order. The company also has until 2020 — nearly four years after the pollution was discovered — to install a collection and wastewater treatment system to manage the leaks under the agreement.

In the meantime, Big Rivers is required to take action “as soon as reasonably feasible” to repair the landfill and clean up the pollution — which it can then bury in the same landfill.

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Conservationists say Kentucky regulators rubber-stamped the utility’s own plans, insulated it from citizen’s lawsuits and neglected to assess the complete environmental impact of the pollution.

“To me that’s the bigger story, it’s not whether there’s a nominal fine or not. It’s the fact that there’s no indication the company is being required to do a full accounting for what the impacts are of this pollution or fully address the pollution at its source,” said Thom Cmar, an attorney with Earthjustice, an environmental advocacy non-profit.

The Energy and Environment Cabinet says the agreement takes a holistic approach to managing the pollution leaching out of the landfill at D.B. Wilson.

“What the agency is looking for is how to prevent any of those releases in the future and what’s the facility going to do to remediate and prevent any of that leachate from leaving that [permitted] outfall,” said Division of Waste Management Director Jon Maybriar.

Big Rivers Electric declined an interview for this story.

Discovering The Source

A state field geologist with the Department of Waste Management found the pollution during a routine inspection of the D.B. Wilson coal-fired power plant, about 40 minutes south of Owensboro, in October 2016.

While walking north along the perimeter of the landfill, the geologist discovered a stream of dark black water flowing from into an unlined ditch leading to a pond that discharges into the Green River.

A strong “unpleasant” smell wafted through the air and white minerals formed in several spots beside the stream, records show.

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His samples detected arsenic 980 times the federal drinking water standard, as well as elevated levels of chemicals like antimony, chlorides and molybdenum. Records show Big Rivers’ own samples found arsenic samples more than 1,000 times the standard.

A barrel full of sludge with arsenic levels that high would likely be considered hazardous waste under different circumstances. But under federal and state law, coal ash pollution is exempt from classification as hazardous waste.

Big Rivers told state regulators it believes the high levels of arsenic found at the landfill were due to “bacterial-mediated reactions,” according to a letter dated June 30, 2017.

Limited Cleanup

The agreed order signed by the utility and the state requires Big Rivers to identify, sample and clean up surface leaks coming out of the landfill.

But the power plant actually has two landfills — right beside each other.

And while the agreed order requires Big Rivers to construct a wastewater treatment system to deal with the dozen leaks found along the eastern edge of the first landfill, there is no similar plan to deal with leaks coming out of the second landfill.

The state has documented leachate outbreaks at both landfills, which ran nearly a mile through unlined ditches. According to its own annual inspection report, Big Rivers found coal ash leachate seeping out of the second landfill as recently as December.

When WFPL asked Maybriar about the December report, he replied “I don’t know what to tell you, this is the first time I’ve seen this information. Based on our observations with what we’ve seen on follow-up site visits, the site has been taking care of the leachate outbreaks.”

When asked to provide documentation of these follow-up site visits, the Cabinet sent information about a different power plant.

Cmar, who works for Earthjustice, said the agreed order appears to simply ratify Big Rivers own plans rather than promote real changes at the site.

“You get the sense that the order is issued more to protect the company,” Cmar said.

Assessing The Damage

With the pollution flowing nearly a mile through unlined ditches into an unlined sedimentation pond, it’s also likely to be seeping into groundwater, Cmar said.

But the agreed order doesn’t require Big Rivers to assess groundwater impacts.

“If it’s in those seeps it’s also getting into the groundwater in other ways and a much larger survey of the site needs to be done to determine what the full scope of the problem is and what the impacts are,” Cmar said.

Earlier this year, A WFPL News and Ohio Valley ReSource analysis of power plant data found contaminated groundwater at 14 Kentucky plants, including D.B. Wilson.

Monitoring wells identified chlorides present in the groundwater at Wilson’s second landfill.

But no one is sure what the groundwater situation is at the first landfill — the one that is covered under the agreed order with the state. Jon Maybriar said the landfill doesn’t have its own monitoring wells.

“Eventually we will when our regulations are, we’re going to be working on new state regulations for [coal combustion residuals], but my understanding from the site that all of the surface water releases are flowing through that outfall and not migrating offsite,” he said.

The cabinet said the current assessment procedures require the facility to determine all pathways for groundwater contamination.

Fines And Litigation

While other states are penalizing power companies for coal ash pollution, Kentucky has often worked with utilities to resolve violations.

Daniel Cleveland, an attorney for the Energy and Environment Cabinet, said that’s in part because of the way coal ash rules were written prior to 2015.

“There were things that are just required under the new standards that if they are not there it’s a violation of the [regulations] but those requirements aren’t as clear cut in the old ones, it said ‘you know don’t pollute water’,” he said.

Alabama’s environmental agency fined six coal-fired power plants $250,000 each for contaminating groundwater earlier this year. In North Carolina, Duke Energy Corporation paid a $156,000 penalty for polluting ground and surface waters around three power plants in April.

Kentucky law allows regulators to fine polluters up to $25,000 per day in penalties. That’s also the total amount Kentucky Utilities paid last year for polluting Herrington Lake with coal ash, according to the agreed order.

Cleveland said that in the case of Herrington Lake, there appeared to be more evidence of long-term polluting.

“You had actual selenium tests in fish tissues, in terms of evidence that selenium was escaping from both outfalls and unpermitted seeps, that’s a lot more prevalent when you look at the data then this one 12 percent exceedance of arsenic,” he said.

But there are similarities among the cases, said Cmar, who is prosecuting the Herrington Lake case on behalf of Kentucky Waterways Alliance and Sierra Club.

A federal judge dismissed the Herrington Lake lawsuit in December ruling the situation should be addressed by state regulators, rather than the federal court system, in part because of the way the state’s agreed order is worded.

Recently, Cmar argued before the Sixth Circuit Court of Appeals that his clients had legal standing to challenge Kentucky Utilities for polluting Herrington Lake. The case will likely be decided later this year.

Cmar believes there is similar language in the agreed order with D.B. Wilson that could prevent residents who live near the power plant from suing for damages.

“They’re written in such a way that they could be used to tell a court that because the state has issued this agreed order, private citizens should not have the ability to sue the company,” Cmar said.

The Energy and Environment Cabinet says the agreed order with D.B. Wilson does not preclude lawsuits.

Cmar said all of these reasons are why there need to be strong federal standards for coal ash, to protect public health and the environment.

“The state of Kentucky, other states around the country had decades where they were the only entities responsible for protecting the public from contamination at these sites and there is a long track record of failure, both in Kentucky and across the country,” he said.

In June, Big Rivers received another notice of violation, this time for exceeding the level of copper it’s permitted to dump into public waterways at D.B. Wilson.

The Energy and Environment Cabinet says Big Rivers has since received approval and installed new technology that limits corrosion. In recent months, the state said the utility has been in compliance with its permits.

This post has been corrected. The original version included erroneous information provided by the Energy and Environment Cabinet about site inspections at a different power plant. It’s unclear how many times regulators visited D.B. Wilson after discovering the pollution in October, 2016.