Published: September 04, 2008 12:37 am            

Appeals court rejects some Ky. water regulations

The court is requiring the EPA to reconsider Kentucky's exemption for coal-mining discharges. To download the opinion, see the link at right

Louisville — A federal appeals court rejected a Kentucky regulation for coal-mining discharge into waterways and ordered the Environmental Protection Agency to reevaluate the rule.

The 6th Circuit Court of Appeals on Wednesday also rejected the EPA's approval of five other water pollution regulations. It included a rule dealing with how much pollution from a concentrated animal feeding operation is acceptable to discharge into some lakes, streams and rivers.

The decision sends the regulations back to the EPA to be rewritten and backed by more facts and law.

The decision came as a result of a lawsuit filed in 2004 by the environmental group the Kentucky Waterways Alliance. The group sued the EPA during the decade-long dispute over the Clean Water Act, saying the agency approved rules for Kentucky that had so many exemptions that they were practically useless.

The court is requiring the EPA to reconsider Kentucky's exemption for coal-mining discharges. The exemption allows coal mines to dump in areas with good water quality if the state finds a good social and economic need to add that pollution to the water.

Kentucky's regulations also exempted a variety of pollution discharges into waters where fish, shellfish and wildlife live.

U.S. District Judge Thomas Russell upheld the regulations in 2006.

The court found that the EPA, in approving the exemptions, failed to explain why the effect of them would be insignificant.

The appeals court did uphold the EPA's approval of how Kentucky selects waterways meriting special protection.

Kentucky gave the EPA a letter saying how it planned to interpret the clean water regulations, but didn't do an analysis of how the regulations would impact the waterways, a move that doesn't meet the requirements of the federal Administrative Procedures Act, Judge Deborah Cook wrote for the majority of the three-judge panel.

"This securing an informal commitment from a state agency rather than requiring the state to amend its regulations violates the federal approval procedure," Cook wrote. Senior Judge Eugene Siler joined Cook in ordering the EPA to rework the regulations.

Judge Eric Clay wrote a separate opinion saying he would have gone farther than his colleagues and required the EPA to rework all of Kentucky's regulations because they too often rely on assurances from the state without any legal backing.

"In my view, the EPA acted contrary to law by relying on these unenforceable commitments," Clay wrote.

Judith Peterson, executive director of Kentucky Waterways Alliance, praised the ruling, calling it "good for Kentucky's waters."

"Waterways are a very public right and a public trust," Peterson said.

EPA spokeswoman Dawn Harris-Young declined comment Wednesday.



Copyright 2008 The Associated Press.

        

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