After a summer of complaints from Cane Run Road residents concerning dust clouds emanating from Louisville Gas & Electric’s coal ash landfill, the Metro Air Pollution Control District finally served the company with a notice of violation and a possible fine of $26,000 for repeatedly disregarding city regulations.

The violations include 1) six incidents throughout June, July and August in which clouds of fly ash rose from its sludge processing plant, causing “nuisance and annoyance to the residents”; 2) three incidents in July where LG&E “failed to take precautions to prevent particulate matter from becoming airborne beyond the work site”; and 3) four incidents in August in which they failed to report “excess particulate emissions” from the plant.

This Nov. 4 notice from APCD came just five days after they released new findings that a sample taken from a house on Cane Run Road tested positive for fly ash. This sample was not mentioned in the most recent notice of violation.

Unlike the positive samples collected earlier this year, this one was taken from a house that had been power washed less than three weeks earlier. LG&E had contended that the earlier samples might be misleading, as the fly ash could have been the result of decades of build-up from the plant — hence their offer to wash houses in the neighborhood in August at the suggestion of APCD to create a “blank slate” of sorts.

Despite the violation notice, APCD says LG&E has taken positive steps to prevent more ash clouds from escaping the landfill. Over the summer, repeated equipment malfunctions at the coal sludge processing plant caused ash to blanket the surrounding neighborhood.

While a $26,000 fine might not seem like much to a multi-billion dollar company, APCD enforcement manager Terri Phelps says that encouraging such corrective actions by LG&E is their most effective means to correct the problem.

“The most important thing that we see going on with our enforcement work with LG&E right now is that they are trying new technologies and practices to keep down the dust off of their landfill and interplant roads, and they are testing new control technologies at their sludge processing plant,” Phelps says.

Though LG&E has taken such measures, spokeswoman Chris Whalen says the company still is mulling over whether to dispute the allegations brought forth by APCD, or agree to make a settlement and pay $19,500.

Whichever they decide, LG&E still disputes that coal ash landing on nearby houses — which they previously denied altogether — is a violation.

“We are allowed to have up to 5 percent (fly ash on house samples),” says Whalen, who claims the “majority” of the company’s internal sampling is under 1 percent. “It’s not zero, that’s not the standard. So we are well within our permitted level.”

Besides, Whalen assures Cane Run residents that coal ash — containing arsenic, mercury and other goodies — isn’t bad for their health. “It is not a health risk. It is not a hazardous material,” she says. “We’re not dealing with something that is.”

Whalen also tells LEO Weekly that LG&E takes issue with the third portion of APCD’s notice, the part dealing with the company’s failure to properly report when excessive emissions occur.

“We’re allowed to have dust on our property, so the only time we have to report it is if we think it left,” Whalen says. “And if we didn’t report it we obviously did not think that those particles were leaving the property.”

APCD disputes that interpretation, saying the regulations clearly require LG&E to report significant emissions on the landfill, whether they think they left the property or not.

“There is a way that they can do a visual observation of their emissions and tell whether it complies with their permit, and they didn’t do it in any of these cases,” Phelps says. “It is disingenuous to say they were in compliance if they’re not going to do a compliance test to demonstrate it.”

Phelps also emphasizes that whether the house samples are below 5 percent is not the issue, but rather whether the dust is creating a nuisance for neighbors.

“To say that they’re in compliance with some regulations doesn’t mean they’re in compliance with all regulations,” Phelps says. “They’re changing the subject.

“I wish we didn’t have to posture for public opinion, but I think that is what happens,” he adds. “Though as long as they are genuinely talking to us and looking for solutions to the problem, it doesn’t really bother me that they have a different opinion as to the seriousness of the problem.”

Mitch Cunningham has lived across the street from the Cane Run Road plant for 55 years and remembers when the land was an orchard rather than giant mounds of coal ash blocking his view across the river into Indiana. His house — freshly washed by LG&E in August — is the one that recently tested positive for fly ash, and he isn’t surprised.

“It seems like it just started getting bad in the past 12 years,” Cunningham says. “The pile gets bigger and bigger and you get that wind current coming in, and it blows like a little tornado down through here, and you’ll see that soot floating around.

“You know my lungs have got to have it in them. But there’s nothing I can do other than go to the doctor. I’d like for them to clean it up or shut it down, either way. But that ain’t gonna happen.”

In September, LG&E did reveal their intent to shut down the landfill, as they plan to switch the plant to natural gas. However, that won’t happen until 2016, meaning the sludge processing plant will keep on chugging for another four years, after which the landfill will be “capped” by covering the ash with dirt and grass seed.

Other residents who have been battling LG&E are encouraged by the fine, but still angry at what they perceive as the company’s flippant attitude toward fly ash landing on their homes, and the fact that they have four more years to put up with their neighbors.

“The dust on the houses, I’m sure it wouldn’t be all right if it was on their houses out in the East End, or wherever they live,” says Greg Walker, whose photographs of emissions from the landfill made up the majority of APCD’s notice. “But none of them live around here. I think it’s bullshit. Coal dust is coal dust, whether it’s 1 percent or 20 percent. We still have people in the neighborhood with breathing problems, and I’m one of them. They can’t tell me it’s healthy.”

Kathy Little, who started organizing her Cane Run neighbors over a year ago, plans to continue monitoring LG&E.

“I’m appreciative of the fine, but I’m disgusted by LG&E’s basic premise that they’re not causing issues in the neighborhood with their fly ash,” Little says. “To me, they’re not reaching out and trying to be good neighbors at all, they’re just trying to get by with what they’ve always gotten by with until 2016. And they may very well be able to. Time will tell.

“I figure as long as I can keep watching them like a hawk,” she adds, “they’re not going to get away with anything.”