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Groups Again Ask Federal Regulators to Take Over Kentucky's Water Pollution Programs

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Nearly five years after environmental groups petitioned the federal government to take over Kentucky’s water pollution programs, the same groups are suing in federal court. The Sierra Club and Kentuckians for the Commonwealth say that the Environmental Protection Agency hasn’t done its job to ensure that Kentucky regulators are enforcing the federal Clean Water Act. A similar lawsuit was filed in West Virginia.

Kentucky is delegated the authority by the federal government to manage several federal laws, like the Clean Air Act and Clean Water Act. In a 2010 petition, the environmental groups laid out an argument that Kentucky wasn’t fulfilling its legal requirement, citing an unreasonable workload for state regulators and a failure to include limits for pollutants like selenium in permits.

From the original petition:

“Further, [the Kentucky Division of Water] does not have sufficient manpower or resources to adequately develop and review mining [National Pollutant Discharge Elimination System] NPDES permits. In Kentucky just four NPDES permit writers manage 2,353 mining NPDES permits (588 each). In contrast, in West Virginia, fifteen mining NPDES permit writers manage 1,266 mining permits (84 each). Even West Virginia’s staffing is woefully inadequate. NPDES permit writers in Kentucky therefore have to manage seven times as many permits as those managed by permit writers in neighboring West Virginia. This lack of capacity may help to explain why Kentucky’s permitting program is so weak and has failed to prevent significant stream impairment.”

But the Sierra Club and KFTC never got a response to the petition. Now, they’re taking legal action to force the EPA to respond to their concerns.

Claims by the environmental groups that the Kentucky Energy and Environment Cabinet is unequipped to administer the Clean Water Act gained some steam late last year, when Franklin County Circuit Judge Phillip Shepherd rejected a settlement between the cabinet and a coal company. The company—Frasure Creek Mining—had been caught forging years of water quality records, and Shepherd wrote in his opinion that the cabinet was unable to effectively enforce its permits.

Cabinet spokesman Dick Brown responded to the Sierra Club legal action Wednesday via email:

“Although we have not seen the actual documents, we believe we are implementing the delegated programs appropriately and in accordance with state and federal requirements.”

The legal action filed Wednesday just asks the EPA to respond to the 2010 petition, but ultimately the environmental groups want the agency to take over administering the Clean Water Act in Kentucky.

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Erica Peterson is WFPL's Director of News and Programming.