Kentucky Supreme Court issues favorable decision for business in water permit case

Providing a major win for Kentucky businesses, the Kentucky Supreme Court issued a unanimous opinion last week that gives greater regulatory certainty to facilities with water discharge permits.

The Energy and Environment Cabinet and permittee, LG&E, successfully argued that the permit in question adequately met the requirements of the federal Clean Water Act and that the Cabinet Division of Water appropriately declined to impose additional “case-by case” technology-based limits on certain toxic pollutants considered as part of applicable Effluent Limitation Guidelines established by the U.S. Environmental Protection Agency, even though those Guidelines did not impose numeric limits for such pollutants.

The Kentucky Chamber filed an amicus brief with the Supreme Court in April 2016 in support of the permit as issued by the Cabinet and in defense of Kentucky businesses affected by the case.

Had the Supreme Court ruled against Kentucky businesses, the effect would’ve been the potential opening of thousands of KPDES permits already in place at various facilities across the state, permitting delays and diminished consistency in permitting due to increased case-by-case analyses for technology-based effluent limits, and an overall weakening of Kentucky’s competitiveness as nationwide standards acceptable in other states are replaced with more stringent requirements in the Commonwealth.

“We are pleased with the opinion and are certain that the amicus brief filed on behalf of our members was helpful in characterizing the critical nature of this case,” stated Dave Adkisson, Ky. Chamber President and CEO.  “We will continue to defend our members against challenges that can diminish the certainty and fairness of our regulatory system.”

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