A lawsuitthat sought to have the federal government respond to requests for them to take over Kentucky’s water pollution program has been dismissed, but the plaintiffs plan to re-file the suit in the Court of Appeals.
Five years ago, environmental groups Kentuckians for the Commonwealth and the Sierra Club petitioned the Environmental Protection Agency, asking federal regulators to take over Kentucky’s water pollution program because of alleged routine mismanagement and lack of enforcement in the commonwealth. The EPA delegates Kentucky regulators the authority to run the National Pollutant Discharge Elimination System program in the state, but the environmental groups claimed state regulators weren’t enforcing the Clean Water Act. The EPA never responded to the petition, so in January, the groups sued the agency.
From the original petition:
"We recognize we are asking EPA to take drastic action. Given the nearly complete breakdown of Kentucky’s implementation and enforcement of its NPDES program, however, withdrawal of the State’s NPDES program is the only remedy that will bring Kentucky into compliance with the Clean Water Act (CWA). In particular, the State’s capitulation to the coal industry and its complete failure to prevent widespread contamination of state waters by pollution from coal mining operations leaves EPA no choice but to withdraw its approval of that program."
The EPA sought for the suit to be dismissed, saying that there was no requirement for the agency to reply to the petition. The environmental groups agreed in court to the dismissal, and plan to re-file the lawsuit as an Administrative Procedure Act claim in the Sixth Circuit Court of Appeals.
Claims by the environmental groups that the Kentucky Energy and Environment Cabinet is unable 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.
