Adam G. Province

October 6, 2008

In a long-awaited victory for environmentalist groups in Kentucky, the Sixth Circuit Court of Appeals held that the EPA must provide evidence for issuing permits that would allow industries to emit pollution into protected rivers and streams. Since 2004, the parties have been at odds in federal district court over the EPA's decision on issuing regulation permits under a Kentucky antidegradation law that lets specific industries pollute into protected rivers and streams once the EPA determines a de minimus level of pollution--pollution that is so minimal that a court may overlook the harm done. The court found that the EPA made decisions that were "arbitrary, capricious and contrary to law" when it approved the permit exceptions. One such violation occurred when the EPA based its decision on comments by a Kentucky agency letter rather than state water regulations that were adopted by the legislature. Judge Clay of the Sixth Circuit Court of Appeals stated "that the EPA acted contrary to law in approving the … exceptions as de minimus."

In March, 2006, Judge Russell of the Western District of Kentucky granted the EPA's motion for summary judgment stating that the EPA did not act arbitrarily or capriciously when using a letter to interpreting the statute because the letter "included checking past permit procedures and approvals, as well as looking at the instances where discharge capacity would and would not reach insignificant levels." Plaintiff's appealed, arguing inter alta that "the EPA cannot use the letter provided by the Cabinet as a reference in their determination [because] Kentucky does not recognize promises made by administrative agencies" under state law.

The Clean Water Act protects Tier II waterways unless "the State finds … that allowing lower water quality is necessary to accommodate important economic and social development." The Act requires a state to submit any new standards to the EPA for review. Kentucky regulations provide that review is not required when "permit renewals and modifications … result in less than a twenty percent increase in pollutant loading from the previously permitted pollutant loading." Plaintiff's argued that the twenty percent exception is vague, and will allow "substantial increased pollution in Exceptional and High Quality water."

The Sixth's Circuit decision will remand this case back to the district court in order to determine the guidelines for reconsidering the exceptions to the Tier II system. Judge Cook's concurring opinion states that the EPA may "clarify ambiguous state regulations by consulting with the state and relying on authorized state interpretations." Requiring the EPA to an evidentiary standard will likely increase the enforcement of state environmental regulations.

The decision appears to have satisfied Kentucky Waterways Alliance because it will force the EPA to provide some evidence for determining which companies are exempt under state regulations. To date, a writ of certiorari has not been filed by either party in this case.

Sources:

Kentucky Waterways Alliance v. Johnson, 540 F.3d 466 (6th Cir. Sept. 3, 2008).

40 C.F.R. § 131.12(a)(2) (2008)

401 Ky. Admin. Reg. 5:030 § 1(2)(b)(1)(a) (Sept. 2004)

Kathleen Brady, KY. WATERWAYS ALLIANCE v. JOHNSON, 426 F. SUPP. 2D 612 (W.D. KY. 2006) (HOLDING THAT THE EPA DID NOT ACT ARBITRARILY OR CAPRICIOUSLY WHEN IT APPROVED THE PROCEDURES PROVIDING ADMINISTRATIVE AND JUDICIAL REVIEW UNDER KENTUCKY'S PERMITTING PROCESS AND THAT KENTUCKY'S ANTIDEGRADATION PROCEDURES MEET THE REQUIREMENTS OF THE CWA), 10 U. Denv. Water L. Rev. 493 (2007).