Kentucky suddenly halts plan to send millions of gallons of industrial wastewater to river
A subsidiary of LG&E and KU had plans to discharge 4.5 million gallons of wastewater from an old coal loading site outside Sebree, Kentucky, into the Green River starting this week.
The company, FCD LLC, did not have a permit for the release.
Instead, FCD was given “off-permit authorization” from the commonwealth's Division of Water, via a controversial program some legal experts say has consistently enabled violations of the Clean Water Act across the state, The Courier Journal previously reported.
Then, at 10 p.m. on Friday — just before the discharge was planned to begin Monday — the company learned its authorization had been revoked by the state.
“Upon further review of the anticipated volume and nature of the discharge,” the Division of Water determined the one-time, off-permit authorization “is not applicable to the proposed point source,” instead requiring the company to apply for a permit under the Clean Water Act, according to a notice sent to FCD.
Just a few hours before the company learned of the reversal, a coalition of environmental groups had notified FCD and state officials that the groups intended to bring a civil lawsuit against the company for violations of the Clean Water Act if the discharge came to pass.
Environmental Integrity Project, a national watchdog group, was joined by several Kentucky-based advocacy groups in pressuring the company and state officials. The groups applauded the cabinet’s decision to halt the discharge.
But the state’s last-minute pivot also illustrates central flaws of Kentucky’s unique off-permit program, advocates said.
“The thoughtlessness and the lack of scrutiny that many of these (authorization) requests were going through has been confirmed,” said Michael Washburn, executive director of the Kentucky Waterways Alliance.
Under the Clean Water Act, polluters must receive a permit from regulators before discharging to a waterway like the Green River, which adds additional steps like notifying the public.
Kentucky officials have authorized at least 280 off-permit, “one-time” discharges since 2017, according to an EIP analysis, allowing companies to skirt some of the hurdles tied to permits.
“We need to see an end to the off-permit discharge program as a whole,” said Ashley Wilmes, executive director of Kentucky Resources Council. “And I think this case particularly underscores the issues with the program.”
‘Coal-contaminated wastewater’ averted from the Green River
In its application to the state, FCD said it wanted to “reclaim the inactive Sebree Dock property,” where it has a long-term lease, and “rid the area of any standing water” from a stormwater runoff pond.
The planned discharge would contain "coal-contaminated wastewater" from years of barges loading and unloading coal at the site, according to EIP. The watchdog’s analysis of FCD’s sampling data showed “a number of toxics above human health and aquatic life criteria,” including lead and arsenic.
The Henderson South Water Treatment Plant draws water from the Green River at an intake just a couple of miles downstream from the planned discharge site. State reports show it serves a population of more than 20,000, including in nearby Sebree.
And its source watershed has historically been “vulnerable to varying sources of contaminants such as agricultural, coal mining and oil and gas production runoff as well as individually owned septic systems,” according to the utility.
The stretch of the Green River receiving the discharge is also home to a “diverse” population of freshwater mussels, based on a survey conducted in 2021 for the Henderson utility.
The Green River empties into the Ohio River near the cities of Henderson, Kentucky, and Evansville, Indiana.
“We take our commitment to the environment seriously and were unaware of concerns” with the discharge authorization, said LG&E and KU spokesperson Chris Whelan in a statement. “We are currently reviewing our options and, as always, will comply with all state and federal regulations.”
‘Lack of scrutiny’
The state Division of Water took four days to approve FCD’s release initially, weeks before reversing its position on Friday.
Off-permit authorizations are often approved within a few days, The Courier Journal previously reported. And environmental groups have consistently criticized the program’s “lack of scrutiny” in allowing discharges without a permit.
“We have been asking Kentucky to stop this program for the last year and a half,” said Meg Parish, senior water quality attorney at EIP.
“And we've been warning them that this program makes dischargers vulnerable to citizen suits,” she said — like the one EIP and others threatened to file should FCD proceed with the release.
In previous statements, state officials have not indicated plans to end the program. A request for comment to the Energy and Environment Cabinet on Monday was not immediately returned.
Earlier this year, a spokesperson from Kentucky’s Energy and Environment Cabinet, which includes the Division of Water, said in a statement the cabinet “believes that its one-time discharge authorizations are protective of the environment because prescriptive conditions can be applied to each one.”
EIP and other legal experts have interpreted the program differently, arguing it conflicts with the Clean Water Act’s “plain language permitting requirement” and allows discharges without the proper framework for oversight and enforcement.
"To allow unpermitted dumping of 4.5 million gallons of polluted wastewater into the Green River is a violation of the Clean Water Act," Wilmes, with the Kentucky Resources Council, said. "And it doesn't become legal just because the Division of Water allows you to go fill out a form on their website, under a program that shouldn't exist."
Connor Giffin is an environmental reporter for The Courier Journal. Reach him directly at cgiffin@gannett.com or on X @byconnorgiffin.
This article originally appeared on Louisville Courier Journal: Green River Kentucky industrial wastewater release halted last minute
