Louisville Gas & Electric Co. v. Kentucky Waterways Alliance

Summary

The Kentucky Supreme Court reviewed a challenge to an NPDES permit issued to Louisville Gas and Electric Company for discharges from its Trimble County coal-fired generating facility. The court held that the EPA's 1982 effluent limitations guideline addressed the relevant toxic pollutants, even though it imposed no technology-based limits for them, and therefore the state permit writer was not required to establish additional limits through best professional judgment. The court also rejected dismissal on jurisdictional grounds and reinstated the permit.

Holdings

1. The Franklin Circuit Court's assertion of jurisdiction and refusal to dismiss the timely administrative appeal did not constitute an abuse of the judicial function or a failure to comply strictly with legislative requirements. The court did not need to decide whether KRS 224.10-470 is jurisdictional or venue-based.
2. The 1982 guideline applied to LG&E's category of discharge even though it did not establish numeric technology-based effluent limits for mercury, arsenic, and selenium. The guideline expressly addressed those pollutants by determining that meaningful reduction was not then possible with available technology.
3. The permit was properly governed by 40 C.F.R. § 125.3(c)(1), which requires application of the applicable EPA-promulgated guideline, rather than § 125.3(c)(3), which addresses discharges only partly covered by an applicable guideline.
4. The permit writer did not abuse her discretion by deferring a case-specific best-professional-judgment assessment while EPA was apparently poised to issue a revised national guideline.

Questions Presented

1. Whether the Franklin Circuit Court's jurisdiction was adequately invoked when the administrative appeal was initially filed in Trimble Circuit Court and transferred to Franklin Circuit Court.
2. Whether the EPA's 1982 effluent-limitations guideline applied to LG&E's wastewater discharge even though it did not establish numeric limits for mercury, arsenic, and selenium.
3. Whether 40 C.F.R. § 125.3(c)(3) required the permit writer to establish case-specific technology-based effluent limits using best professional judgment for pollutants not assigned numeric limits by the 1982 guideline.
4. Whether the permit writer abused her discretion by deferring a best-professional-judgment analysis while EPA was expected to issue a revised national guideline.

Disposition

reversed