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Scope of Kentucky’s KPDES Permit Program Upheld

07.09.2012

On May 25, 2012 the Kentucky Court of Appeals agreed with the Cabinet and Kentucky farmers regarding the scope of the Kentucky Pollutant Discharge Elimination System (KPDES) permitting program and other water permitting issues for nine hog farms in Western Kentucky.  The Cabinet’s Division of Water issued No-Discharge Operational permits for manure storage pits associated with the farms on July 7, 2006. The permits were challenged by individuals who owned land near the farmers proposed operations.  After a 14-day evidentiary hearing and Hearing Officer’s Report, the Secretary’s Order in favor of the Cabinet and the farmers was appealed to the Franklin Circuit Court. The Court reversed and held that the Cabinet erred: (1) in failing to require the farmers to obtain KPDES permits rather than No-Discharge permits, finding that the Kentucky KPDES program is broader than the federal counterpart in that it covers indirect discharges; (2) in failing to require the supplier of the hogs to sign the farmers’ permit applications as co-permittees; (3) in failing to exercise discretionary “special condition” authority to perform an air emissions risk assessment and/or impose conditions relating to air emissions in connection with the permits and; (4) in failing to exercise discretionary “special condition” authority to impose effluent or other limitations relating to pathogens.  The Franklin Circuit Court affirmed the Cabinet’s permitted setback distances.  All issues were appealed to the Kentucky Court of Appeals.

In Adams et al. v. Sharp et al., Kentucky Court of Appeals, Case Nos. 2009-CA-002190-MR, 2009-CA-002283-MR (May 25, 2012), the Court of Appeals ruled in favor of the Cabinet and the farmers on all issues.  On the first issue, the Court of Appeals rejected the Circuit Court’s finding that a general statute prohibiting water pollution broadened the KPDES permit program beyond the requirements of the counterpart federal permit program.  The Court of Appeals found that the specific statute regarding the KPDES permit program mandates that the KPDES program be no more stringent than its federal counterpart.  Further, the Court of Appeals found that federal case law holding that a permit is required only for operations with a point source discharge was applicable.

On the second issue, the Court of Appeals reinstated the Secretary’s finding that the supplier of the hogs should not be required to sign the permit application, as there was evidence in the record to support the Secretary’s decision that the farmers, not the supplier, had primary responsibility for overall operation of the facility.  Regarding the Cabinet’s discretionary authority to impose special conditions in the permit, the Court of Appeals found that the Cabinet’s authority is discretionary and thus entitled to deference unless it is shown that the Cabinet’s action was arbitrary.  The Court agreed with the Cabinet and the farmers that the air emissions regulation in issue, 401 KAR 63:020, is administered by the Division for Air Quality, is self-implementing and its implementation is best decided through the air permitting, not the water permitting, process.  Likewise, the Court of Appeals found evidence in the record to support the Secretary’s determinations regarding appropriate setback distances and the lack of necessity for additional pathogen conditions.

As of the date of this publication, a motion for rehearing is pending with the Court of Appeals.


To view a complete PDF of the May/June 2012 issue of the Environmental Letter, click HERE.

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