Kentucky Supreme Court Upholds Kentucky Energy and Environment Cabinet Process for Issuing Wastewater Discharge Permits
Kelly Bartley and Brent Baughman were recently featured in Kentucky Chamber’s News Journal in an article authored by Kelly discussing the implications of an April 2017 Kentucky Supreme Court ruling regarding federal Clean Water Act requirements. In a unanimous opinion, the Court overturned the decisions of the Franklin Circuit Court and the Kentucky Court of Appeals, which had refused to uphold the process by which the Kentucky Energy and Environment Cabinet evaluates whether to develop and impose case-by-case technology-based effluent limitations in Clean Water Act wastewater discharge, or KPDES, permits.
Represented by BGD attorneys Kelly Bartley and Brent Baughman, the Kentucky Chamber filed a “friend of the court” brief in the case, supporting the Cabinet’s and LG&E’s argument that the lower courts’ decisions disregarded the Clean Water Act’s legislative goal of promoting national uniformity and an even playing field when it comes to technology-based limits. In considering the issues presented, the Kentucky Chamber urged the Court to consider the serious and wide-reaching adverse impacts to Kentucky businesses and Kentucky’s business climate that would stem from any departure of that goal, including permit uncertainties, delays and diminished regulatory consistency, efficiency, and permit predictability.
The Kentucky Supreme Court’s published decision provides greater certainty to Kentucky businesses, confirming that where discharges of a pollutant were evaluated as part of an applicable U.S. EPA nationwide effluent guideline for a source category, the Cabinet is not required to develop a case-by-case, “best professional judgment” technology-based permit limit under the Act for that pollutant.