... and Justice for All

Toxic Pollution of Kentucky's Waters Approved by Sixth Circuit

Selenium is a naturally occurring substance toxic in high concentrations. As a result its discharge into our Nation's waters including our Commonwealth's waters is regulated by the Clean Water Act.  According to the Sixth Circuit, "the Clean Water Act is a comprehensive water quality statute designed to restore and maintain the chemical, physical and biological integrity of the Nation's waters." But of course absolutely clean water is impossible so the Clean Water Act allows for issuance of permits allowing the discharge of pollutants like selenium within prescribed limits.

So what happens when (a) a toxic pollutant is discharged into our Commonwealth's waters for which there is no permit; and, (b) those discharges are so high that they would not be permitted in any event? So the discharge is something that could never be legal or permitted. Nothing, a majority opinion of the Sixth Circuit holds today in Sierra Club v ICG Hazard, 13-5086 (Jan. 27, 2015). 

The majority opinion of the Sixth Circuit's decision was authored by Circuit Judge Julia Gibbons and joined by Circuit Judge David McKeague, who both were appointed by former President George W. Bush.

Circuit Judge Gilbert Merritt dissented opening his opinion with the following observation:

The majority allows the silence of local Kentucky environmental regulators to turn the Clean Water Act on its head.  They do this, despite the undisputed fact that illegal toxic discharges of dirty selenium water occurred, because they believe we must assume that Kentucky's "general permit" tacitly authorizes toxic discharges of selenium.

Here's the problem and what's going in this case.  The Kentucky Department of Water chose to essentially sanction the toxic discharges, even though it had not (and could not given the high concentrations of the discharges) granted any Clean Water Act permit. KDOW is vulnerable to political pressure from the Kentucky coal industry so it looks the other way.  So too does the Sixth Circuit and adopts the following rule: if you have any kind of permit to discharge toxic pollutants, you can get away with discharging any kind and any amount of other toxic pollutants, no matter that they were not and never could be actually and lawfully permitted.  If it weren't already, it is open season on clean water in our Commonwealth.

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And so it goes.

Robert L. Abell
www.RobertAbellLaw.com 

 

Weakening of Workplace Toxin Rules Underway

    A weakening of rules regulating workers exposure to toxic substances in their workplace is underway in these final months of the Bush Administration, the Washington Post reports ("U.S. Rushes to Change Workplace Toxin Rules").  Contrary to requirements that notice of the proposed changes be published in plans filed last December or in May notice of the proposal first surfaced on July 7 in a vague reference on the website of the White House's Office of Management and Budget.  The late notice of the proposal also violated a directive from the White House Chief of Staff that all regulatory proposals be published no later than June 1.  In the first 7 1/2 years of the Bush Administration, its Department of Labor adopted only one significant rule regarding toxins in the workplace and then only under court order.

Robert L. Abell
www.RobertAbellLaw.com