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Legislative Committee Defers Decision On Controversial Coal Ash Regs

Erica Peterson

  A legislative committee voted Friday to defer a decision on new rules that would change the way coal ash landfills are permitted in Kentucky.

The Kentucky Energy and Environment Cabinet’s new rules have attracted lots of attention in recent months. The rules would fundamentally change the way coal ash landfills are permitted.

Rather than applying for a permit with the state — a lengthy and complicated process — utilities would instead apply for a registered permit-by-rule. After filing a document, construction could commence on major engineering projects without prior review or approval by regulators. The utilities could be fined by regulators or sued by individuals after the fact for any violations.

Last month, details also emerged about the process that generated the new version of the rules. Documents obtained by WFPL showed Kentucky regulators spent more than a year — under the administrations of both previous Gov. Steve Beshear and Gov. Matt Bevin — collaborating with representatives of the utility industry before the rules were released for public comment.

Energy and Environment Cabinet Deputy Secretary Bruce Scott told the Administrative Regulation Review Subcommittee that the regulations will give the state more control over coal ash in Kentucky

“Our intention with this rule, particularly with the ash ponds, and the ash ponds are the primary genesis of why the rule came to be into fruition, is this gives us technical requirements, technical abilities, and frankly it gives us a permitting mechanism that we don’t currently have to deal with ash ponds in Kentucky,” he said. “So, it beefs that up significantly.”

That characterization was strongly disputed by Tom FitzGerald of the Kentucky Resources Council, who told the committee these regulations are the most dangerous he’s seen in his more than three decades of practicing law in the state.

“This is a complete abdication of regulatory responsibility and I am appalled that the agency would, with a straight face, suggest that this is an improvement over the current situation, which requires individual permitting, individual review by the regulatory authority and individual involvement by the public,” FitzGerald said. “And frankly, if I were a civil engineer working for a utility I would not want to be the only person certifying that these things are properly cited, designed, constructed and operated.”

The committee also heard from Kelley Leach, who lives across the street from LG&E’s proposed Trimble County landfill.

After several minutes of testimony, Sen. Perry Clark told FitzGerald and Scott because their testimonies gave conflicting information, he wasn’t sure how to vote and wanted more time.

“I believe you’re both trying to do this on goodwill and I don’t know, you’re telling me we have these new regulations, I’m reading this, and I see this as a weakening of a regulation by taking away,” Clark said. “I’m concerned about the cadmium, I’m concerned about the mercury, I’m concerned about the arsenic, I’m concerned about the water and it seems like we’re depleting our protection for this thing. And I don’t know which way to go. And I would like to give us at least another month, to sit down and let us think about this during this month.”

Other members of the committee agreed, and the rules were deferred for a month.

Before they go into effect, the new regulations will have to clear this committee and another committee of jurisdiction, as well as be approved by the governor.

Erica Peterson is a reporter and Kentucky Public Radio correspondent based out of WFPL in Louisville, Kentucky.
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