Kudos to the Bevin administration for not fighting at least one decision by Franklin Circuit Judge Phillip Shepherd.
The Energy and Environment Cabinet's decision not to appeal a ruling that Shepherd made earlier this year restores critical protections for the public against toxic waste from coal-fired power plants.
Rather than try to defend an indefensible permitting change that had been dictated by electric utilities, Secretary Charles Snavely and the cabinet now are working with stakeholders — all stakeholders, not just the utilities — to update regulations in response to changes in federal law.
Involving stakeholders in decisions — from environmental rules to public pensions — has often been productive. The administration should try it more often.
Gov. Matt Bevin has repeatedly attacked Shepherd, who, because state government disputes are litigated in Franklin Circuit Court, has presided over a number of challenges to our inflammable governor.
Kentuckians can be glad that Bevin's grudge didn't carry over to Shepherd's power plant ruling. The cabinet's decision not to appeal restores two important protections that the administration had eliminated: The public's right to be notified of and participate in decisions about where and how utilities build landfills to hold toxic leftovers from coal combustion. Also, pre-construction review of such landfill plans by state experts.
You may recall that in late 2016, the Bevin administration enacted a radical reversal of the permitting process for disposing of power plant waste. At the time, Tom FitzGerald, director of the Kentucky Resources Council, called it "the most reckless regulatory program" he had seen, a sobering superlative.
Kelley Leach, a Trimble County resident who owns property and lives near where Louisville Gas & Electric is building a coal ash landfill, was the plaintiff in the lawsuit filed by FitzGerald. The defendants included Snavely and LG&E.
The rule would have eliminated public notice and front-end review by state environmental officials of the design of landfills for coal combustion waste. Reversing the cabinet's earlier stance, the Bevin administration eliminated the technical reviews at the same time that the federal government tightened coal ash regulations.
Failing to catch flaws in the design would have cost electricity consumers if state officials later found that leaking or unstable landfills had to be rebuilt. The utilities would have passed on such costs to their customers — not to mention the risks to the environment and neighbors. "The self-policing approach," Shepherd wrote in his Jan. 31 ruling, was "literally an accident waiting to happen," adding that "only the short term economic interest of the utility industry" would have been served "to the detriment of the public."
While no new coal-fired power plants are in Kentucky's future, the state will depend on existing coal plants for decades, and those plants will continue to produce tons of waste containing contaminants such as mercury, cadmium and arsenic that can pollute the water and air and harm human health.
The collapse of a TVA waste impoundment in Kingston, Tenn. almost 10 years ago set the federal rule change in motion. The cleanup cost was $3 billion. In response, the U.S. Environmental Protection Agency developed the first federal regulations on the disposal of coal waste from power plants.
The new rules call for ending coal ash disposal in surface impoundments, which means more coal combustion waste will be going into landfills. Weakening state oversight as utilities design and build new landfills never made sense. If anything, as Shepherd wrote, more extensive technical rules should require "additional oversight to ensure compliance."