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Kentucky Court of Appeals Upholds Air Permit for Thoroughbred Generating

On September 19, 2008, the Kentucky Court of Appeals issued its decision in the challenge to Thoroughbred Generating Company's air permit for the construction of a coal-fired electric generating facility in Muhlenberg County. 

The ruling reverses an August 2007 decision by the Franklin County Circuit Court that had the potential to significantly impact Clean Air Act Prevention of Significant Deterioration (PSD) air permitting requirements in Kentucky.  The Court of Appeals ruled that the Secretary of the Energy & Environment Cabinet was correct in approving the permit as modified by her final order.

The Court of Appeals ruled on several issues significant to the Kentucky air permitting process:

  • PSD permitting analysis of impairment to visibility, soils and vegetation.  Reversing the circuit court, the Court of Appeals held that it was proper for the Cabinet to only require an analysis of impairment resulting from the specific source or modification, and to not require the analysis to include background conditions.
  • PSD permitting best available control technology (BACT) emission controls analysis.  The Court of Appeals reversed the decision that the BACT analyses for SO2 and NOx were deficient.  Among other things, the Court of Appeals found that the Secretary properly looked to "present technology" in determining the BACT emission limits for the source.
  • PSD permitting demonstration of compliance with National Ambient Air Quality Standards (NAAQS).  The circuit court had ruled that a permit challenger must simply show that the permit applicant has not demonstrated "with certitude the new source's compliance with NAAQS" to prevail on a claim of permit deficiency.  Using this standard, the circuit court relied upon the Cabinet's alleged failure to consider emissions from a diesel-fired emergency generator to find that the Thoroughbred permit was deficient.  The Court of Appeals reversed the circuit court's ruling on this issue, holding that petitioners did not offer any proof that "sporadic use" of the subject generator would cause additional impact on air quality.
  • PSD permitting public notice requirements.  The circuit court held that the public notice for the Thoroughbred permit was defective.  The Court of Appeals reversed, finding that the notice was substantially compliant and achieved the purpose of public notice.

Barring a motion for rehearing or reconsideration, parties have 30 days from the date of the Opinion to move the Kentucky Supreme Court to accept discretionary review of the case.

If you have any questions regarding mineral, energy or natural resources legal issues, please feel free to contact any member of Greenebaum's Environmental and Natural Resources Team.

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