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| A cave sits on land in Trimble County where LG&E wants to build a waste landfill. KY. Division of Waste Management |
The distinction could mean higher costs at one of Louisville Gas and Electric Co.’s largest coal-generating plants, the Trimble Generating Station , where plans for a new coal-burning waste landfill may wind up in a legal dispute.
With the plant’s ash storage ponds filling up along the Ohio River, and ash-pond safety now a national concern, LG&E has been planning on stockpiling its ash and scrubber waste in a new, presumably more environmentally friendly landfill to be built on 218 acres of company-owned property nearby. Those plans are now in question.
The plant produces about 1 million tons per year of the combustion wastes, and an LG&E official warned this week that if the utility can’t build its Trimble landfill, it may have to haul the waste to its Mill Creek power plant landfill in Louisville.
LG&E’s problems in Trimble County arose late last fall, when officials at the Kentucky Division of Waste Management learned that there was a large cave on the land destined for the dump, one they say is protected by a 1988 law that makes it “unlawful to remove, kill, harm, or otherwise disturb any naturally occurring organism found within any cave.”
The state called LG&E’s plan to destroy the cave a “deficiency” in the utility’s permit application that must be “eliminated.”
LG&E sees things differently.
Spokesman Chip Keeling wrote in an email reply to a reporter’s questions that the company expects to file its formal response to the state’s stance within the next “several days,” asserting that the cave protection rules do not apply.
“We do not expect any impact on our plans,” Keeling wrote.
That’s because the consultants found only “cave-like features” on the property, he said, and not “any cave-dependent life forms that would be disturbed by our proposed landfill.”
Keeling said “the cave protection rules also do not include an absolute prohibition on eliminating a cave. They require permission of the land owner, which in this case is LG&E.”
Keeling said if the company can’t build the landfill there, it would likely have to pay to haul the waste by truck to another landfill, possibly at Mill Creek in southwestern Louisville. He said he didn’t know how much more expensive that would be but that customers would likely have to pay those extra costs.
On Tuesday, the Louisville Metro Air Pollution Control District said it had opened an investigation into complaints of blowing ash at the Mill Creek plant. The action follows the agency’s 2011 investigation and $30,000 in assessed fines regarding similar complaints at LG&E’s Cane Run plant, also in southwestern Louisville.
“We are still working to settle the case with LG&E,” said district spokesman Tom Nord.
LG&E also has also applied for a permit for a new coal-burning waste dump at Cane Run, even as it plans to end coal burning there by 2016. Keeling said LG&E is seeking the permit as a backup in case something changes and it has to keep Cane Run operating beyond 2016.
Officials with the Kentucky Energy and Environment Cabinet, which includes the waste management division, said they cannot recall the 1988 cave law ever before coming into play during a landfill permit review process.
Further complicating matters, the cave-protection law does not allow applicants to mitigate the loss of a cave by, for example, paying into a conservation fund or agreeing to protect other caves elsewhere, as is common with other environmental laws, such as those covering wetlands.
“It’s a huge deal, at least from the way we read the cave law,” one that could end up in the legal system, said Ron Gruzesky, who manages the solid waste branch of the waste management division. “At some point, we’ll probably leave the realm of engineering and probably get into the legal realm.”
But the state can’t make any decision on the permit until LG&E officially responds to the notice of deficiency, he said.
The cave law is enforced only through criminal misdemeanor and not civil penalties, said Karen Wilson, spokeswoman for the Energy and Environment Cabinet.
For their part, LG&E officials have been scrambling to keep their landfill plans alive by hiring consultants and reviewing provisions of the cave law.
Environmental attorney Leslie Barras, whose expertise includes historic preservation and protection of caves, said the cave law has typically been used to protect archaeological sites inside caves. She said she is pleased that state officials are recognizing its broader language to also protect what lives inside caves.
Barras, who has been tracking the issue for the Sierra Club, said she believes LG&E’s interpretation of the cave law is wrong.
“Caves are usually thought of as any void where humans can insert themselves,” she said.
Noting that this cave is large enough for people to walk upright into, she said, “It’s ridiculous to say that this is not the kind of cave that is encompassed by the law.”
Barras acknowledged that the cave law gives landowners some control over them, but said it does not allow the owners to destroy cave life. She cited a provision that made it illegal to “store, dump, litter or dispose of ... any refuse (or) toxic substances harmful to cave life or humans.”
Coal combustion wastes contain a variety of toxic heavy metals and other pollutants.
“I think this is a big problem and it will make LG&E go back and look at other alternatives,” Barras said, including for places off LG&E property where the ash could be permanently placed.
State officials said they heard about the potential issue last fall at a public meeting and visited what they called a cave on Nov. 15. A summary of the tour shows photos of a spring near its opening, an entrance more than 10 feet tall and wide enough for at least two people.
A report from the tour offered this description: “It is from one foot to more than 10 feet in The report includes photographs of a frog, cave crickets and a mosquito, with a mention that a cave salamander was also found inside.
The report also noted that “dozens of sink holes are present in the area above the cave,” which environmental attorney Tom FitzGerald, director of the Kentucky Resources Center, said should be equally problematic for LG&E.
FitzGerald, an expert on Kentucky waste laws, said state officials generally frown upon putting landfills in sinkhole areas because of the threat that sinkhole geology poses to groundwater, as well as the threat it poses to the integrity of any landfill that sits atop them.
He pointed to state regulations that require setbacks and other protections for sinkholes at so-called “special waste” landfills, such as the one proposed by LG&E.
“The location of the cave, the presence of flowing water within the cave system, and the apparent extent of the solution channels under the property would appear to make the site unsuitable for a landfill, both under the state special waste siting regulations and the state cave protection act,” Fitzgerald said.
The question of how to manage coal-combustion waste has been a national topic since a mountain of ash blanketed several hundred acres, damaged 26 homes and slid into a river at a power-plant impoundment near Knoxville, Tenn., in 2008.
The U.S. Environmental Protection Agency has been considering whether to ban storage of ash in ponds in favor of dry storage in lined landfills, which are presumed to be less potentially damaging to the environment. The agency is also weighing whether to designate coal combustion waste as hazardous.
In Trimble County, the Sierra Club has been working with some of the area’s residents who oppose the landfill, fearing it will pollute groundwater, fill the air with soot and other particles, and lower their property values. Some have cited LGE’s troubles with blowing ash at Cane Run.
“People have been very concerned,” said P.J. Nacke, who has a farm near the proposed landfill. “We look at people at Cane Run,” she said. “They have ash coming into their houses.”
Nacke also said she is worried that the toxic pollutants in the ash might contaminate their crops and said she hopes the cave’s presence will stop the landfill.
Kentucky officials have also heard from Lee Worthington Rowe, a Tennessee resident who wrote that her grandfather owned the LG&E property until he died in 1980, and his heirs had to sell it to pay taxes.
In a letter to state officials, Rowe said her mother and uncle would have looked for another buyer “had they known the land would be wasted in this way.”
Source: Courier Journal