As Kentucky regulators and utilities are pushing to loosen regulations on the state’s coal ash ponds and landfills, more pollution problems are emerging at one of the sites in central Kentucky.

Over the past six years, documents show contaminated water including arsenic and selenium leached from the ash pond at the E.W. Brown Power Station into groundwater and directly into Herrington Lake, near Danville. Despite remedial measures taken by Louisville Gas & Electric and Kentucky Utilities, the pollution persists.

Now, fish tissue sampling has revealed the coal ash pond’s selenium runoff has poisoned aquatic life in the lake.

Meanwhile, the same regulators who monitor the runoff from that plant have been working extensively with the utility industry — including a group that represents LG&E and KU — to weaken state regulations governing coal ash.

Experts say that under the new regulations, the pollution at the E.W. Brown plant might never have been detected.

Kentucky Department for Environmental Protection

“Individually and cumulatively, [these coal ash sites] add up to a demonstration that this waste stream is problematic enough, and the past management of these wastes by this industrial sector is questionable enough, that you really don’t have any case for allowing a new generation of these sites to be created without sufficient oversight,” said environmental attorney Tom FitzGerald.

The Kentucky Energy and Environment Cabinet declined an interview request. In response to emailed questions, cabinet spokesman John Mura disagreed with FitzGerald’s characterization of the new regulations.

“The Cabinet certainly agrees that it is essential for the state to be involved in the oversight of operation, closure and corrective actions implemented at [coal ash] impoundments,” Mura said. “This is a key reason why Kentucky is proposing to adopt the federal [coal ash] rules to ensure that it is involved in these key actions.”

The problem

Herrington Lake is a 2,300-acre manmade lake near Danville. It’s used for recreation activities, like boating and fishing. And it’s pretty. For 72-year-old retired economist Jim Porter, the lake is the reason he and his wife moved back to Kentucky 11 years ago. They live in a subdivision built around the Old Bridge Golf Club.

“The appeal of Old Bridge to us was not the golf. Neither of us are golfers,” Porter said. “The appeal of Old Bridge was that it’s on Herrington Lake, which is a beautiful lake here in central Kentucky.”

Porter’s property backs up to the lake. It’s peaceful, and Porter said he loves living close to it. But besides serving as a drinking water source for nearby communities and attracting the wildlife Porter watches from his back porch, Herrington Lake is also used as a repository for pollution from the Brown power plant.

LG&E and KU are legally allowed to do this through Kentucky Pollution Discharge Elimination System — or KPDES — permits. But in 2014, when the plant was already undergoing remedial measures for groundwater contamination, regulators found more unpermitted discharges. The coal ash pond was still leaching toxic chemicals into nearby groundwater and directly into Herrington Lake.

In February 2014, Division of Waste Management inspectors were at the Brown plant to examine underground springs — a step in support of the plant’s permit application to build a dry landfill on the capped pond. They shot video of a torrent of orange water rushing down a hill and into one of the lake’s inlets. Water tests performed later showed arsenic levels that were 98 times the maximum allowable level, and levels of iron and manganese were also high.

https://www.youtube.com/watch?v=Flxb1NT9FBM

LG&E and KU took corrective action to address the problem — and also took steps to remediate more groundwater contamination that was discovered later that year. The company ended up constructing a cutoff wall and pumping the contaminated water seeping from the ash pond to a new pond.

Now, the pollution is diluted before being released — legally — into Herrington Lake.

“We worked with the state and the Division of Waste Management to address all the groundwater issues, and all of those have been completed, which the exception of the ash pond, which is more than 90 percent closed, and that will really solve all of those problems,” said LG&E and KU spokeswoman Chris Whelan.

At the time, environmental groups were skeptical. The Sierra Club and Earthjustice questioned the effectiveness of the solution.

“So, it’s essentially putting [the contaminated water] back up into this other location to dilute it, and still allow water that has some degree of coal ash contaminates in it to be discharged via a Division of Water permit back into Lake Herrington,” said Tim Joice of Kentucky Waterways Alliance.

Kentucky Department for Environmental Protection

FitzGerald, of the Kentucky Resources Council, echoed those concerns.

“Even though you may try to dilute certain discharges, when you’re dealing with elements and when you’re dealing with persistent bioaccumulative toxins, dilution is not the answer,” he said.

And somewhere along the way, the pollution in Herrington Lake poisoned the fish.

Poisoned fish

The list of contaminants in coal ash runs from one end of the periodic table to the other. Arsenic. Cadmium. Chromium. Lead. Nickel. Manganese. Selenium.

“So there’s lots of things that are potentially toxic to fish and wildlife, but at the top of the list, without question, based on case examples we’ve seen for the last 40-50 years, is selenium,” said aquatic biologist Dennis Lemly. “So that’s the one outstanding pollutant that is of most concern for fish and wildlife health from coal ash wastewater.”

Despite decades of pollution from the Brown plant, the Kentucky Division of Fish and Wildlife lists Herrington Lake as a great place to catch largemouth bass, crappie, white bass and bluegill. Like every other water body in the state, fish in Herrington Lake are already under an advisory for mercury because of air pollution from coal-fired power plants.

But now, state regulators say the power plant’s coal ash pond has poisoned Herrington Lake’s fish in a different way: with selenium.

Nine out of 10 fish tissue samples taken last spring in Herrington Lake exceeded Kentucky’s fish tissue selenium criteria. LG&E and KU were cited for the violation last month and quickly reached an agreement with the state to pay $25,000 in civil penalties and take corrective measures.

The Brown power plant’s permit doesn’t contain specific limits for selenium, but it does have a requirement that the facility monitor for selenium and report the results to the Energy and Environment Cabinet.

“We work hard to not violate any of our permits, and we were in compliance with our water discharge permit and our landfill permit,” Whelan said. “We feel like entering into this agreement, while we’re not admitting to any violation, we’ve got a plan to move forward so we can ensure this doesn’t happen again.”

At the same time, Whelan said the company isn’t convinced the high levels of selenium in Herrington Lake’s fish are connected to the Brown plant’s ash pond at all.

“Selenium is a naturally occurring element, and we’re not sure what caused that,” she said. “We know that there are higher levels there, we do see that. So we’re going to continue monitoring that and work with the state to make sure it doesn’t happen again.”

But state regulators believe there is a connection, and Dennis Lemly said his research suggests it’s likely. Lemly has spent decades investigating coal ash pollution and selenium’s effects on aquatic life. He used to work for the U.S. Forest Service and conduct research at Wake Forest University, but he’s now retired.

Over the last 40 years, he’s investigated about 30 of the country’s more than 1,000 coal ash sites that release pollution into waterways.

“I have only scratched the surface,” Lemly said.

And of those 30 sites, the aquatic life at 27 of them has been biologically impaired by selenium pollution. The element bioaccumulates, which means the problem continues to grow as it travels up the food chain.

Lemly wouldn’t comment on the specific problem unfolding in Herrington Lake next to the Brown plant, but he said in general, these problems are difficult to reverse. Even if pollution is stopped, he said, selenium will remain in the sediment at the bottom of rivers and lakes, and it can continue poisoning the food chain for decades.

“Once that threshold is crossed, the impacts are essentially irreversible for a very long period of time,” he said.

Scientists know that selenium is dangerous for aquatic life; it can cause everything from reproductive problems to grotesque deformities in fish. But they’re less certain about its effect on humans. A small amount of selenium in a human diet is benign or may even be beneficial.

But the Agency for Toxic Substances and Disease Registry said there’s still a lot that’s unknown about selenium in humans.

“We do not know if exposure to selenium could result in birth defects in people. Selenium compounds have not been shown to cause birth defects in humans or in other mammals. We have no information to suggest that there are any differences between children and adults in where selenium is found in the body or in how fast it enters or leaves the body,” the agency wrote on its website.

But the agency also notes that laboratory studies have shown selenium crosses the placenta and enters the fetus. It can also be transferred to infants through breast milk.

There’s still more work to do before state regulators understand the extent of the problem for the aquatic life in Herrington Lake. Lemly said the fish tissue sampling just shows there’s a potential problem; the next step should be to study fish for deformities, and evaluate their reproductive success.

Spokesman Mura said the cabinet would require additional sampling and analysis.

“The facility is required, as a component of the agreed order issued in response to the water quality violations, to prepare and implement a corrective action plan to investigate sediments, surface water quality and biological receptors in Herrington Lake,” he wrote. “The Cabinet will be reviewing this corrective action plan prior to its implementation to ensure that the proposed actions will be adequate to address the water quality concerns.”

The new regulations and industry

While field staff at the Kentucky Division of Water and the Kentucky Division of Waste Management were going back and forth with LG&E and KU over the illegal discharges from the coal ash pond at the Brown plant, their superiors were working with representatives of the utility to rewrite the way the state oversees coal ash.

The proposed new regulations are pending before the first of two legislative committees that are required to approve them. If they’re finalized, the new rules would replace the permitting process that currently exists.

Rather than require extensive state input and review before utilities are allowed to build coal ash landfills or close existing coal ash ponds, they’ll be able to act after obtaining a simple registered permit-by-rule. If the landfills are engineered incorrectly, it’ll be up to regulators to catch violations after the fact, or citizen groups to initiate lawsuits.

Related Story Kentucky Regulators, Industry Reps Privately Rewrote Coal Ash Rules

When the regulations were finalized last month, environmental attorney FitzGerald said the proposal was the most irresponsible he’s seen in his more than three decades practicing law in the state.

“It’s the Wild West, basically,” FitzGerald said. “You get to characterize [the project] on your own, if you do at all. You get to manage it at the location you decide, you get to control the design, the construction, the operation, the closure, the post-closure. And the only time the state is going to become involved is after you screw up — if they find out about it.”

And FitzGerald said the pollution that happened at the E.W. Brown plant — both unpermitted and permitted — is a cautionary tale.

“This is another one of many case in points why advance agency technical review of the critical aspects of management of these wastes is essential,” he said.

Kentucky Department for Environmental Protection

At the Brown plant, inspectors first noticed the orange water rushing from the coal ash pond into Herrington Lake during a visit to examine the property’s underground springs. Division of Waste Management geologists were at the plant because LG&E and KU were seeking a permit to build a dry coal ash landfill on top of the pond — state input which wouldn’t be required under the new regulations.

It’s also possible that the extent of the contamination wouldn’t be discovered. The new regulations wouldn’t require state geologists or hydrologists to weigh in on where monitoring wells are placed near coal ash sites.

“You put your monitoring well in the wrong place, you’re going to get results that are not reflective of the potential for contamination,” FitzGerald said. “And that’s one of the many reasons why having advanced technological review by people who are trained geologists and hydrologists — which has occurred historically for any landfilling of coal combustion waste — this is one of the many reasons why it’s important the agency be more engaged on the front end.”

In response to a question, cabinet spokesman John Mura disagreed with the characterization.

“The regulations that Kentucky is in the process of adopting would have likely prevented these violations from occurring,” he wrote, referencing stricter rules on the siting of new coal ash ponds. There are no new coal ash ponds planned in the commonwealth.

Now what?

LG&E and KU are working on a corrective action plan to address the high levels of selenium in Herrington Lake’s fish. This may be easier said than done. As aquatic biologist Lemly noted, selenium poisoning is difficult to reverse.

“That deposit of selenium is essentially a source of contamination for many, many years after selenium inputs to the water body from wastewater or whatever are stopped,” he said.

Besides the $25,000 the utility was fined last month for the selenium issue, the Kentucky Energy and Environment Cabinet hasn’t levied any civil penalties for the months — or years — of illegal coal ash contamination of the lake. In a Notice of Intent to Sue filed in October 2015, Earthjustice attorney Thomas Cmar noted that LG&E and KU’s alleged Clean Water Act violations carried penalties of up to $37,500 a day.

At the Brown plant, the contaminated groundwater from the now almost-closed coal ash pond is still being pumped to an auxiliary pond before being released into Herrington Lake. Kentucky Utilities is still monitoring the groundwater, which the company had to be prompted to do by state regulators.

And the latest monitoring report shows that the water coming out of the coal ash pond is still high in arsenic. Water testing done in December shows arsenic contamination was 22 times the maximum contaminant level for groundwater.