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Lawsuit Challenges Kentucky's Weakened Coal Ash Regulations

Erica Peterson

A Kentucky environmental attorney has filed a lawsuit challenging the commonwealth’s controversial new coal ash regulations.The standards are set to go into effect on Friday.

The lawsuit was filed Wednesday in Franklin Circuit Court by Tom FitzGerald of the Kentucky Resources Council on behalf of Trimble County landowner Kelley Leach. Leach lives next door to Louisville Gas & Electric’s Trimble County Power Plant — a plant for which regulators recently approved a permit to expand the facility’s coal ash landfill.

Coal ash is a byproduct of burning coal for electricity; it’s typically stored in ponds or landfills and if it’s not managed correctly, has caused environmental contamination and safety concerns.

The Regulations

As WFPL has previously reported, Kentucky proposed the new regulations last year after more than a year of meetings with representatives of electric utilities. After the meetings, the regulations that emerged were less stringent than the version regulators had initially proposed.

The final regulations — which cleared one legislative committee — incorporated new federal standards for citing and monitoring coal ash landfills and ponds into new state regulations. But in doing so, regulators also significantly loosened the permitting requirements on new coal ash landfills.

Under the new regulations, state regulators will have minimal involvement as utilities work to determine where they should place new coal ash landfills. Right now, permitting is a lengthy, comprehensive process involving independent experts, including geologists. After this regulation goes into effect, there will be no prior state review before construction begins. In 2010, the same state regulators lobbying for this approach argued prior review was essential.

“Prior review by a professional staff at the state level eliminates misunderstandings, or worse, any attempt to cut corners,” Department for Environmental Protection staff wrote in comments to the EPA on the federal rules.

The Lawsuit

FitzGerald cites those 2010 comments in the lawsuit filed Wednesday. The suit lists four places FitzGerald alleges the state’s new regulation conflicts with existing statutes.

“We believe there are several separate provisions of state law that require a permit actually be a permit that contains plans and specifications, and that the agency actually do a review of those plans and specifications prior to authorizing the utilities, or anybody else for that matter to engage in the land disposal of coal combustion waste,” FitzGerald said in an interview with WFPL.

He said Kelley Leach is listed as the plaintiff because the LG&E plant next to his property would be able to transition to the new regulations, and Leach would be adversely affected if state regulators don’t maintain their current levels of oversight over the facility.

The new coal ash regulations are scheduled to go into effect on Friday, and the state’s existing coal ash landfills will be eligible to apply to transition to the new rules. FitzGerald said he has asked the Energy and Environment Cabinet to voluntarily hold off on approving any transitions; if the Cabinet does not, he will seek injunctive relief to block the transitions.

Both the Kentucky Energy and Environment Cabinet and LG&E declined to comment on the lawsuit Wednesday afternoon, citing the pending litigation.

This story has been updated.

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