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Ky. judge sides with challenge to coal ash rule

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Ky. judge sides with challenge to coal ash rule

Kentucky officials had no rational explanation for making changes to the state's longstanding coal ash regulations aside from helping the utility industry, a Kentucky circuit court judge said.

Kentucky in 2017 adopted federal rules for coal combustion residuals, or CCR, in place of existing state regulations. According to Franklin Circuit Court Judge Phillip Shepherd, changes to permitting requirements for coal ash were done to benefit utilities and went against a mandate to help the public.

In a Jan. 31 order overturning the state's elimination of prior technical review and public notice for CCR landfills, Shepherd chided the Kentucky Energy and Environment Cabinet for meeting only with industry stakeholders when developing the new regulations. The result of those meetings was a "complete about-face" on longstanding policy that prior technical review and public notice are necessary, Shepherd said.

While the cabinet is free to make policy changes, it failed to provide a good reason to support the move, he said.

"Arguably, there is one rational basis for the cabinet's action: to reduce the regulatory burdens and costs on the utility industry," Shepherd wrote. "That policy goal, however, is wholly outside of the cabinet's statutory powers and duties."

Further, the goal of reducing the costs and regulatory burdens on the utility industry, in this case, is inconsistent with the Kentucky Energy and Environmental Cabinet's duty to protect public health and the environment, Shepherd said.

The cabinet is still reviewing the decision, spokesman John Mura said.

When the new regulation was being considered in late 2016 and early 2017, local reports said the proposal would make it more difficult for the public and state regulatory agencies to manage the coal ash waste produced by Kentucky power plants.

The Kentucky Energy and Environment Cabinet, however, said the changes would strengthen oversight on coal ash ponds and add more technical requirements for coal ash impoundments.

A Kentucky resident living near a landfill planned to hold CCR generated by Louisville Gas and Electric Co.'s, or LG&E's, Trimble County Generating Station challenged the new rules.

LG&E spokeswoman Liz Pratt said the PPL Corp. subsidiary is still reviewing the decision. The company is nonetheless disappointed because the changes would allow Kentucky's regulated utilities to shut down existing coal ash ponds in the most cost-effective way, Pratt said.

She also said that although LG&E was named in the lawsuit, the suit did not seek specific relief against the company. Pratt said the ruling has no impact on LG&E's current special waste landfill or impoundment operations.