Much Ado About Nothing: The Kentucky Supreme Court Interprets the 1982 Guidelines of the Clean Water Act

This post is written by Associate Editor Katie Price. Opinions and views expressed herein are those of the writer alone.

In April of this year the Kentucky Supreme Court took a turn at interpreting federal law when it decided Louisville Gas and Electric Company v. Kentucky Waterways Alliance, et al. and Commonwealth of Kentucky, Energy & Environment Cabinet v. Kentucky Waterways Alliance, et al.[1] While the Jurisdictional and Administrative issues presented in this case were independently provoking, the main conflict centered around the interpretation of the 1982 Guidelines of the Clean Water Act.

The Louisville Gas and Electric Company (LG&E) is utilizing a process known as “coal-fired steam electric generation and transmission”, where “the combustion of coal is used to generate steam, which in turn propels electricity generating turbines.”[2] In compliance with the Clean Air Act, LG&E must attempt to lessen the sulfur emissions, which is accomplished through “wet scrubbing” – using a waste water stream to collect sulfur particles, and, ultimately, places the waste water into the Ohio River. Ironically, which was not lost on this Court, the attempt to control air pollution facilitated water pollution. Among others, mercury, arsenic and selenium were chemicals that were not being filtered from the waste water before it emptied into the Ohio river. These were the chemicals put at issue in this case. [3]

The disputed guidelines were created 25 years ago. The drafters of the 1982 Guidelines for the Clean Water Act refrained from specifying limits for the pollutants at issue, as they felt optimal protection could be better reached with future technology.[4] The Kentucky Waterways Alliance (KWA) and others argued that this implied that LG&E was under an obligation to use the most current technologies to prevent water pollution to get a permit to discharge into the river.[5] LG&E argued that there were jurisdictional issues and the case should be transferred.

Initially, the Circuit Court determined that “Best Professional Judgement” , a standard utilized by the Clean Water Act, had not been realized by the permit writer when she emitted technological standards, and LG&E’s permit was vacated. [6] The Appellate Panel affirmed.[7] The Kentucky Supreme Court then granted the motions for discretionary review.[8] The Court explored the jurisdictional issues, and determined that the Appellants were “not entitled to relief on their jurisdictional claim.”[9] However, the Court agreed that the Best Professional Judgement standard was met by the permit writer, who “imposed the technology-based effluent limitation required by the 1982 Guideline, but also required LG&E to test its effluent periodically for mercury and for toxicity and to keep records on the results. Further, the permit provided that it would be reopened in two years for reassessment in light of any new technological or regulatory developments.”[10]  In other words, the individual writing  the permit for LG&E not only included all the standards set by the 1982 Guidelines, but she set the permit to expire in two years – right around the time the EPA was scheduled to publish new standards. This, according to the Kentucky Supreme Court, was adequate use of the” Best Professional Judgement”. Therefore, the permit was reinstated by the Kentucky Supreme Court.[11]

In an ultimate testament to the slow workings of the legal system, or, optimistically, the rapid improvement of technology, the EPA’s 2015 Guidelines addressed the concerns of the KWA in this case.  The EPA established new Best Available Technology (BAT) limitations with “numeric effluent limits on the discharge of mercury, arsenic, selenium and nitrate/nitrite.”[12] Furthermore, the EPA did not utilize the Best Professional Judgement Standard for these guidelines, to the chagrin of, just about, everyone involved. [13] While it is easy to conclude that everyone “won” in this situation, and that this case became obsolete before it published, there are still lessons to be gleamed in this production. First, there is the practical merit of patience when new guidelines on point are scheduled to be published. If nothing else, this case seems to be a testament to wasted time and resources. More importantly, there is a downplay of an issue that should be on the minds of everyone: mercury, arsenic and other chemicals are streaming into the Ohio River. We can argue until we are blue-in-the-face about the amount of chemicals a company can dump into our river. However, we know that we will not escape the consequences of those chemicals being in our waterways, no matter the capacity. While I would agree that the permit writer was acting with her best professional judgement, and that the jurisdictional issues were handled fairly, the real issue in this case is one that spans larger than the scope of our legal system.

[1] 2015-SC-000462-DG, April 27, 2017.

[2] Id. at 2

[3] Id. at 4

[4] Id. at 3

[5] “ The Act Limits such discharges to those authorized by permit, a so-called ‘National Pollutant Discharge Elimination System’ (NPDES) Permit” , Id. at 11

[6] Id. at 7

[7] Id.

[8] Id. at 8

[9] Id. at 11

[10] Id. at 22; There was anticipation of an upcoming EPA report on these chemicals – the 2015 Guidelines id. at 4 , referring to 80 Fed. Reg. 67,838-01 (Nov. 3, 2015)

[11] Id. at 26

[12] Id. at 24

[13] Id.

Author: nkylrev

The Northern Kentucky Law Review, founded in 1973, is an independent journal, edited and published entirely by the students of NKU Chase College of Law.

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