Howard’s blog

Two Victories for Cleaner Water and Cleaner Air in Kentucky

Clean Water: Thirty-five years after the federal Clean Water Act passed, most Midwestern states still have not adopted all of the water quality standards required by the Act. The consequence: polluted rivers and lakes that harm aquatic life and fail to achieve our quality of life goals. ELPC Senior Attorney Albert Ettinger and Staff Attorneys Jessica Dexter and Brad Klein are achieving slow, but steady, progress in advancing key nutrient, phosphorus and antidegradation standards in Illinois, Indiana, Iowa and Kentucky to help clean up the Mississippi River and its tributaries.

ELPC gained a big victory on September 3rd. The U.S. Court of Appeals for the Sixth Circuit reversed and remanded the U.S. EPA’s approval of Kentucky’s flawed administrative rules in an opinion that will significantly affect state obligations to maintain and protect water quality under the Clean Water Act’s antidegradation policy that is designed to “keep clean waters clean.” ELPC attorneys represented plaintiffs Kentucky Waterways Alliance, Sierra Club Cumberland Chapter, Kentuckians for the Commonwealth, and Floyds Fork Environmental Association.

In summary, the Court found that the U.S. EPA’s approval was “arbitrary and capricious” because it did not require Kentucky to prove that the multiple exceptions contained in the proposed antidegradation rules would cause only insignificant, or “de minimis,” degradation of the state’s rivers, lakes and streams. Instead, the U.S. EPA merely accepted Kentucky’s unenforceable commitments to protect water quality, even though the plain language of state’s rules gave blanket exemptions to several categories of polluters, including the coal industry.

The Court’s Opinion sends Kentucky’s rules back to the U.S. EPA for further review. Kentucky likely will have to significantly revise and improve its rules in order to comply with the Court’s decision. ELPC’s persistent legal and policy advocacy is important to improve water quality and protect our Midwest natural heritage.

Clean Air: ELPC achieved a second victory on September 12th when the U.S. EPA granted key claims in our petition challenging Kentucky’s issuance of a Clean Air Act permit for Louisville Gas & Electric’s new Trimble 2 coal plant. This plant will emit huge amounts of global warming pollution, as well as mercury, sulfur dioxide and nitrogen oxides. ELPC attorneys Faith Bugel and Meleah Geertsma represent the Sierra Club, Save the Valley and Valley Watch in the challenge.

We argued, and U.S. EPA agreed that, the plant is required to include all periods of operation when setting pollution limits under the Clean Air Act. The air permit must now be rewritten by the state agency to comply with the U.S. EPA’s decision. A new and more stringent permit will result in better air quality, especially for people living near this new coal plant. ELPC will continue to scrutinize the permitting process and bring future challenges to enforce full compliance with Clean Air Act requirements.

One week – two victories for cleaner water and cleaner air in Kentucky.

Kentucky’s pollution of the Ohio River flows affects neighboring Illinois, Indiana, Ohio and downstream Mississippi River states. Likewise, air pollution from coal plants in Kentucky reaches the Great Lakes and people in many surrounding states. ELPC and our local environmental group colleagues and clients are making headway in fighting for clean water and clean air in Kentucky, where more environmental advocacy resources are needed.


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