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Weaker Kentucky Coal Ash Rules Won't Begin Until Late July Under Settlement

Erica Peterson

The Kentucky Energy and Environment Cabinet has agreed to hold off on letting electric utilities transition to the state’s new, relaxed coal ash rules until litigation is complete, except under special circumstances.

The partial settlement was reached last week in the case pending in Franklin Circuit Court. It was filed on behalf of Trimble County resident Kelley Leach by Tom FitzGerald of the Kentucky Resources Council and names the Energy and Environment Cabinet and Louisville Gas and Electric as defendants.

The suit was filed in response to Kentucky’s recently finalized coal ash regulations. Coal ash is a byproduct of burning coal for electricity. It’s one of the country’s largest waste streams, and contains high levels of heavy metals and other contaminants. The ash is sometimes recycled into consumer products, but most of it is disposed in dry landfills and wet ponds across the country.

The Kentucky Energy and Environment Cabinet drafted the rules to incorporate new federal standards overseeing coal ash landfills and ponds. The state’s regulations, which were heavily revised after more than a year of private meetings with the utility industry, significantly weaken state oversight of coal ash landfills.

In the past, the state has conducted comprehensive engineering analyses and inspections before issuing detailed permits for landfill construction; under the new rules, utilities won’t need detailed permits and any problems will have to be discovered after the landfill is built.

FitzGerald filed the lawsuit challenging the regulations early last month. The suit isn’t resolved; the agreement signed by Franklin County Judge Phillip Shepherd sets a briefing schedule that extends through July.

But in the interim, the Cabinet agrees it won’t issue a “permit-by-rule” under the new regulations until the briefing schedule is complete. After that date — July 24 — the Cabinet also agrees to give 10 days notice before approving any new permit-by-rule.

There are a few exceptions, like if regulators determine a new landfill is necessary for a utility to have enough storage capacity to comply with the federal standards, or if the utility submits pre- and post-engineering certification for the project.

"I'm satisfied, I think my client is satisfied that as an interim matter, we've got a process for expeditiously seeking judicial review of the regulations and we have some additional restrictions in the meantime in terms of landfills," FitzGerald said.

Kentucky Energy and Environment Cabinet spokesman John Mura declined to comment, citing the pending litigation.

Under the agreement, LG&E is also blocked from seeking a new permit-by-rule for a landfill project at its Trimble County Power Station until July 24. The utility received a comprehensive permit for the projectunder the old regulations in February — transitioning to the new rules would mean the company wouldn’t be subject to the extensive requirements laid out in the original document.

This story has been updated.


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