Kentucky sued over weakened coal ash regulations

by James Bruggers , The Courier-Journal –

A Trimble County man, backed by the Kentucky Resources Council, filed suit Wednesday against Kentucky and LG&E over new coal ash regulations that limit state and public involvement in permitting new ash landfills and ponds.

The lawsuit was filed by Kelley Leach in Franklin Circuit Court and uses a top Energy and Environment Cabinet official’s own words against the state’s current position. Leach has been objecting to a large coal ash landfill LG&E plans to build near his property.

The lawsuit claims the new regulations will conflict with other state regulations, were adopted through a legally flawed procedure, and that the state failed to provide a justification for the change.

“Kelley, and all Kentuckians who live near coal combustion waste landfills, have a right to expect that no permit will be issued allowing disposal of wastes containing numerous contaminants of public health concern, without the cabinet first carefully reviewing the location, design, construction, proposed method of operation, and closure plans for the landfill,” said Louisville attorney Tom FitzGerald, director of the Kentucky Resources Council.

 

Cabinet spokesman Lanny Brannock said state officials had not yet seen the lawsuit and declined to comment. Previously, cabinet officials have said they consider the new regulations an improvement that strengthened environmental protections for the massive amounts of coal-burning wastes that coal-fired power plants produce.

Cabinet Secretary Charles Snavely, named in the lawsuit, earlier wrote an op-ed piece in December explaining the state’s position. In it, Snavely said the idea was to “eliminate redundancies and inconsistencies between overlapping state and federal rules that could cause confusion.”

LG&E also declined to comment.

At issue is the cabinet’s response to new U.S. Environmental Protection Agency rules.

For the first time, they imposed tighter requirements on utilities to protect against pollution from coal-burning wastes, some of which have been shown to contaminate water, blow in the wind and catastrophically collapse when improperly stored, such as the 2008 Kingston, Tennessee, disaster that devastated a community and led to a $1 billion cleanup.

But “the cabinet was not required by state or federal law to eliminate the current permitting process, and the cabinet’s replacement of a thorough permit review with a one-page permit application makes a mockery of the permitting process,” FitzGerald said.

 

The Courier-Journal in December first reported that the Kentucky Energy and Environment Cabinet was seeking to allow construction of ash handling facilities without a state public review process to make sure the EPA rules were followed and public notice and participation.

The cabinet eventually decided to require utilities to notify cabinet officials that they intend to construct ash dumps or ponds. But there will be no requirement for a formal review of the companies’ construction plans by state regulators or any public involvement.

In making its case, the lawsuit cites 2010 comments written by Deputy Commissioner R. Bruce Scott when he held an earlier job for the Beshear administration as commissioner of the Kentucky Department for Environmental Protection. Scott at that time wrote to EPA that “a system of detailed technical inspection, application submittal, application review, public notice and final permit” was “essential to eliminate misunderstandings between the consultant, owner or operator, the department, neighbors and the general public,” the lawsuit notes.

The Courier-Journal in January reported that the Bevin administration relaxed the state and public input into the permitting process after months of back and forth with an organization representing the state’s utilities.

An earlier proposal discussed with that utility organization at the end of the Beshear administration in late 2015 would have retained regulators’ involvement in reviewing permits for new coal ash landfills or storage ponds – and public input into decisions about their location and design, according to documents provided to the Courier-Journal under the Kentucky open records law.

Snavely has written that “agency inspections and oversight of both (coal cumbustion waste) impoundments and landfills will not change. The agency has and will exercise its authority to inspect these facilities to ensure compliance, investigate citizen complaints, and take enforcement action as necessary.”

Reach reporter James Bruggers at 502-582-4645 and at [email protected].