Kentucky pauses program that gave companies a pass to dump wastewater into waterways

A contested state program allowing companies to dump industrial wastewater into Kentucky’s waterways without a permit is on pause while officials conduct an internal review of its use.

Legal experts and advocates have criticized the program as enabling polluters to violate the Clean Water Act across Kentucky and bypass key protections built into the permitting process — including notifying and accepting comments from the public before a discharge takes place.

The off-permit, “one-time discharge” program has provided at least 280 discharge authorizations to companies since 2017, according to an analysis by Environmental Integrity Project (EIP), a watchdog group.

The decision to halt the off-permit program comes amid mounting pressure from environmental groups and a controversial off-permit authorization issued to a company in Western Kentucky, which the state later retracted at the last-minute .

This incident appears to have triggered the agency’s decision to pause and review the program.

“It has been determined that an authorization was issued that was outside of the intended purpose of the authorization program,” John Mura, spokesperson for the Kentucky Energy and Environment Cabinet, said in a statement, “which requires a thorough evaluation of the entire program and procedure.”

The Division of Water removed the application form for the off-permit program from its website in late June. Mura said the agency will not provide off-permit authorizations while it conducts a review of the program.

Growing attention on Kentucky's off-permit program

In June, Kentucky officials suddenly rescinded an off-permit authorization to an LG&E and KU subsidiary planning to release wastewater from an old coal loading site into the Green River.

That discharge, scheduled to begin on a Monday, was called off after the state reversed course at 10 p.m. on the Friday before, The Courier Journal previously reported .

The state’s pivot came just hours after EIP and other environmental groups notified the company and state officials of their intent to sue the company if the discharge took place.

This instance confirmed the program’s “lack of scrutiny” in companies’ requests to discharge without a permit, waterway advocates said at the time.

The off-permit program has also captured the attention of U.S. Environmental Protection Agency officials in the past year, who have “expressed uncertainty” about whether the off-permit discharges should instead be covered by permits under the Clean Water Act, according to Mura.

‘Obviously abused’

In recent years, the state's off-permit program authorized discharges from the following sources to enter Kentucky’s waterways:

• Contaminated groundwater from underground gas station storage tanks, risking the release of hazardous chemicals from gasoline, like benzene and toluene;
• A tailings pond for an aluminum smelter, which gathers wastewater from the aluminum production process and contained detectable levels of aluminum, nickel, antimony and fluoride;
• A coal-fired power plant sedimentation pond containing selenium and thallium.

Since these releases were authorized without a permit, downstream communities did not need to be notified beforehand — marking “one of the most egregious and concerning things about this program,” said Meg Parish, senior water quality attorney for EIP.

“Maybe they're fishing out of this water, maybe they're using this water as a drinking water source … they have no idea that this is happening,” Parish said.

“Public notice is kind of a cornerstone to the Clean Water Act,” she added. “It's one of the ways that we protect federal waters, by kind of opening it up to sunshine and letting the public know what's happening.”

Advocates have also criticized the difficulty of assessing the environmental impacts of off-permit releases in Kentucky due to an absence of transparency and accountability built into the program.

In past comments to The Courier Journal, state officials have maintained the off-permit program is protective of the environment and allows for proper enforcement.

Advocates disagree. Michael Washburn, executive director of the Kentucky Waterways Alliance, said the off-permit program “has been obviously abused and applied to situations that were not the original intent.”

“There’s no enforceability,” said Parish, who worked as a water quality regulator in Colorado before joining EIP. “I have no idea how (the state) could enforce an off-permit discharge.”

A win for waterway advocates

The state’s move to pause and evaluate the off-permit program was applauded by waterway advocates, who for more than a year have been pushing to have the program dismantled and replaced with permits.

“I'm hoping that they'll see that whatever safeguards or requirements, or lack of requirements, they had in place for this program have been entirely deficient,” Washburn said.

“There should be no one-off, off-permit authorization program anywhere,” he added. “I hope that they'll just entirely scrap the program upon review, and hasten the creation of permits for these situations, which will require more sensitivity to environmental impacts for industrial and commercial activities.”

If the state determines its off-permit program is not protective of the environment, it will need to draft specific permits to cover the discharges previously covered by the off-permit program.

While the review of the program is pending, future requests for one-time discharges will require a permit, according to the statement from the Energy and Environment Cabinet.

In conversations with waterway advocates, the EPA has also indicated it’s taking concerns about the program seriously. The agency did not respond to The Courier Journal’s request for comment on the off-permit program or its legality under the Clean Water Act.

This week, Parish and Ashley Wilmes, with the Kentucky Resources Council, met with EPA officials about the off-permit program.

Parish was encouraged by the meeting, she said, which included some “fairly senior people” from the agency’s southeast regional office.

“Ashley and I said, ‘We think this is an urgent issue,’” Parish said. “And they said, ‘We share your urgency.’”

Connor Giffin is an environmental reporter for The Courier Journal. Reach him directly at cgiffin@gannett.com or on X @byconnorgiffin .

This article originally appeared on Louisville Courier Journal: Kentucky pauses program that gave companies a pass to dump wastewater into waterways