LOUISVILLE, Ky. (AP) - 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, 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.
EPA spokeswoman Dawn Harris-Young declined comment Wednesday.
Judith Peterson, executive director of Kentucky Waterways
Alliance, also declined to immediately comment.

(Copyright 2008 by The Associated Press. All Rights Reserved.)